I submitted an amendment which sought the deletion of this section but I understand from the General Office that it has been ruled out of order. Section 1 rejects what has been described in the Explanatory Memorandum as a defect in section 12 of the 1985 Act. The section seeks to extend to unmarried couples certain provisions applying to married couples. The Minister, instead of complying with the decision of the courts in the Hyland case and providing that married couples should be treated equally, is depriving unmarried couples of the right to full unemployment and social assistance. It seems to me that that represents a dramatic shift from the position as expresed by the Minister when in Opposition. When in Opposition, in October 1986, a leaflet was issued under the signature of Dr. Michael Woods and circulated in the Dublin North-East area——
Social Welfare (No. 2) Bill, 1989: Committee and Final Stages.
Deputy should say, the Minister for Social Welfare.
The leaflet was signed by Dr. Michael Woods, TD. He was in a different position then.
In a previous Government.
In a different manifestation.
In a previous capacity.
The Minister pointed out that Fianna Fáil were opposed to these savage cuts on low income families and had put down the following Private Members Motion for Wednesday, 29 October 1986: That Dáil Éireann requests the Government to amend the Social Welfare (No. 2) Act, 1985, to ensure that no——
I am sorry to interrupt the Deputy but clearly this is not the time for Second Reading speeches.
It is not a Second Reading speech.
I would ask the Deputy to apply his remarks to the section under discussion.
That is precisely what I am doing.
The Deputy is embarking on a Second Reading speech——
No, I am not.
——and the Second Stage of this Bill has been passed.
I am explaining, in relation to section 1 which seeks to deprive married couples of full rights under social welfare, that the Minister is doing a U-turn on a position he adopted on behalf of Fianna Fáil in October 1986——
The Deputy is bringing in a lot of extraneous matter.
There is nothing extraneous in this.
The Chair says so. Deputy.
I appreciate that you may be of that view because you have not heard the full quotation.
I will not be argued with.
If I can complete the quotation you will see its relevance.
I do not see the relevance in such quotations.
Does the Chair not seek relevance? I understood you were seeking——
I should like the Deputy to apply his mind to the section under discussion.
That is precisely what I am doing. I have already explained that section 1 deals with what the memorandum refers to as a "defect" in section 12 of the 1985 Act by extending to unmarried couples, cohabiting as man and wife, certain provisions denied at present to married couples——
I am well aware of what is in the section, Deputy.
——and then goes on to detail what the provisions are. I am pointing out that the section the Minister is introducing and which arises from the Hyland case, will deprive married couples of their rights and is in direct contravention of what the Minister stated, when in Opposition, in October 1986 on behalf of the Fianna Fáil Party. I simply want to state precisely——
This is a rehash of a Second Reading speech.
It is not.
Clearly, it is.
There is little point in trying to contribute to this debate if I am not going to be allowed to say what I want to say.
The Deputy will be allowed to speak on the section. Deputy Jim O'Keeffe.
I have been considering the Bill and, in particular, this section. I want to responsibly and strongly raise with the Minister a serious concern I have with regard to this section. I am convinced there is very strong evidence to suggest that this section is unconstitutional. If one studies the decision of the Supreme Court in the Hyland case I believe the view I am expressing will be borne out.
The effect of this section will be that the position of married couples and couples of the opposite sex who are living together under one roof will be equalised. However, now we will have the situation where two people of the same sex who are living together, whether in a sexual relationship or otherwise, will be entitled to two separate rates of payment and, consequently, a higher overall total. If one studies Article 41 of the Constitution and the various cases which have been taken thereunder one will see that there is at least a prima facie case to suggest that the court will find this further discrimination unconstitutional.
Therefore, the basic point we must focus on is whether we should permit our laws to develop whereby two people of the same sex — two men living together, a father and son or two brothers or two friends, having a sexual relationship or otherwise — can receive a greater income by way of two separate payments as opposed to that received by married couples or unmarried men and women living together. Is that unconstitutional? I believe there is at least a strong case which can be made to suggest that it is. On that basis, there is a duty on this House to ensure as far as is possible, that the laws we enact comply with the terms of the Constitution.
There are other topical questions at the moment in the context of Bills which have not been enacted but sin ceist eile. However, when there is a Bill before the House and there are reasonable grounds for suspecting that constitutional parameters have been breached the Constitution provides a way to resolve this problem. This involves a reference by the President to the Supreme Court. I appreciate that the President acts in that situation after consultation with the Council of State but obviously he takes note of the views which are expressed in this House. I want to raise with the Minister my concerns that this Bill may not be constitutional. If it is not constitutional there will be another series of cases before the courts which will involve further expense for the litigants involved and, of course, for the State. In addition, this will lead to further uncertainty about our social welfare code. I believe strongly that there should be a recommendation from this House for the Bill to be referred by the President to the Supreme Court for adjudication on its constitutionality.
I should like to make it clear to the Deputy that in the course of the discussions on this case, which only relates to a very specific area — the Hyland case, which is cited in relation to this legislation — the court were dealing with a very specific area. In the course of the discussions relating to that case the court said that one cannot compare the situation of a man and wife with that of two people who are entirely separate, for example, two single people, because obviously there will be differences. I accept that the point Deputy O'Keeffe raised is relevant but it is not one the court feels is unconstitutional. It is common for the law of other countries to recognise that there is a difference between the situation of a married or cohabiting couple and that of single persons. Nevertheless this is the aspect we want the review group to look at in regard to the question of a household and how we should deal with that question in future.
As I mentioned earlier, it is possible for somebody to challenge the giving of a fuel allowance or some other allowance to one person in a household. At present it is accepted practice that only one fuel allowance is given for a household. For instance, where two single unemployed brothers live together in a household up to this they did not qualify for a fuel allowance but because of a change I recently made in the scheme from October they will be entitled to have one allowance between the two of them, in other words, one allowance per household. Of course they are delighted with that provision. Nobody is challenging which of them should receive the allowance as long as there is an allowance given to the household. At some stage somebody could ask: why should one person get the allowance and not the other even though it is in respect of the same household? In a sense that indicates the type of problem presented vis-à-vis a household.
The Deputy need have no concern about the constitutionality of this Bill. This Bill is entirely constitutional and satisfactory. I think what the Deputy is really asking is if there are not other questions which need to be examined as well. That is why the Government are setting up the review group, particularly to examine the household issue. The whole objective of the Government in relation to the establishment of this review group is to be progressive, fair and reasonable. Indeed, the provisions of this Bill are reasonable, responsible and fair. We are addressing the immediate anomaly and, at the same time, tackling the wider implications in a calm, considered way, in what must be accepted to be an urgent manner because we are doing so in the context of the next budget, which must be seen to be fair in every sense. In this way the Oireachtas will be afforded an opportunity to consider the full implications of the outcome of the review and make any necessary provisions for changes in the social welfare code. Therefore, it will be seen that we are tackling both issues at the same time.
The provisions of this section are designed to meet the requirements set out and they do so in relation to circumstances which arose vis-à-vis the Supreme Court judgment on section 12 (4) of the 1985 Act. It effects an adjustment to section 12 (4) and also to section 12 (1). Section 12 (1) and (4) of the Equal Treatment Act, 1985, provided that married couples would not receive two personal rates of payment where both spouses were entitled to unemployment assistance, and where one was entitled to assistance and the other to a benefit or pension. Section 12 (1) provided that, where both spouses were entitled to unemployment assistance, the overall amount payable would be limited to what they would receive if one of them only claimed and received an increase for the other as an adult dependant. The Act provided that each of the spouses would receive half of the amount payable.
Section 12 (4) dealt with the circumstances in which one spouse was entitled to benefit or pension and the other unemployment assistance. In those circumstances the overall amount payable to the couple could not exceed that which would be payable if only the spouse entitled to the benefit or pension claimed and received an increase for an adult dependant. In these circumstances the Act provided that the payment to the spouse entitled to assistance would be reduced in order to remain within the limitation. The recent Supreme Court judgment concerns section 12 (4) only but, as section 12 (1) affects the entitlements of married couples in exactly the same way, this subsection also must be regarded as defective.
Section 1 of this Bill remedies these defects by extending the provisions of section 12 (1) and (4) of the 1985 Act to unmarried couples who are cohabiting as man and wife. Section 1 (a) deals with the circumstances in which both spouses are entitled to unemployment assistance and section 1 (b) deals with the cirsumstances in which one of them only is entitled to assistance and the other to benefit or pension. However, the manner in which the limitation is to be applied, where one of them is entitled to a benefit or pension, is being changed. Under the provisions of the 1985 Act the amount payable to the couple in these circumstances was limited to the married rate of the higher social insurance payment.
Following on the increases granted in this year's budget, which are to become effective from July next, the long-term rate of unemployment assistance will exceed the basic rate of unemployment and disability benefit. Section 1 (b) of this Bill, therefore, provides that, in future, a claimant will have the benefit of whichever is the higher rate, either the married rate of benefit or pension or the married rate unemployment assistance. The limit provided for in section 1 of the Bill will apply only where one or both of the married or cohabiting couple is entitled to unemployment assistance. It will not apply where each of the couple is entitled to social insurance payment in their own right. It is important that that be clear — that where each is entitled to insurance, then of course each will receive their insurance payment in accordance with their PRSI contributions.
These arrangements apply only to means-tested assistance schemes related to need. In these circumstances each of a couple will continue to receive the full personal rate of payment. This reflects the basic objective of the unemployment assistance scheme which is to provide a level of financial support related to the needs of the household. It is widely acknowledged that the needs of two persons living together are less than those for two persons living in separate households. This stands to reason as there is a sharing of basic resources/overheads such as accommodation, heating, lighting and other household goods. The latest household budget survey estimated that expenditure in these areas accounted for almost 80 per cent of all household expenditure for one and two person households.
There has been a good deal of research conducted into this issue in other countries which is referred to formally as equivalent scales analysis. As far back as the Beveridge report in the United Kingdom in 1942 the estimate used for the needs of a couple was 1.6 times the rate for a single person. More recent research conducted in the United Kingdom and in the United States indicates that an equivalent scale of the order of 1.6 is not unreasonable. Estimates can be obtained using different approaches, depending on price régimes and consumption patterns in different countries. That will lead to some minor variations in estimates of adult equivalent scales in the countries concerned.
Unfortunately, research on adult equivalent scales has not been carried out in this country. However, the ESRI have undertaken work on child equivalent scales. The principle applied here is the same, that is, that economies of scale apply also to family size although some allowance must be made for the ages of the children involved. Based on available international data the Commission on Social Welfare recommended that the appropriate rate for a couple was 1.6 times the personal rate. They accepted the rationale of an equivalent scale, that two persons living together are financially interdependent.
In relation to unmarried couples, the Commission on Social Welfare stated that where two people, not legally married, are living together effectively as husband and wife and sharing resources, they should be treated in a similar manner to a married couple for social welfare purposes. That is what is happening vis-à-vis the provisions of this Bill — that in fact they will be treated in a similar manner. For reasons of both equity and efficiency the payment structures of assistance schemes must take account of the effect of the operation of economies of scale in a household. This is done explicitly in the payment of a personal rate and an adult dependant allowance to a couple. This approach ensures that the level of assistance payable is related to the needs of the claimants' household. Section 1 of this Bill maintains that principle. It is essential to the equitable distribution of resources and ensures that available resources are directed to those in greatest need.
I should point out that, when this House decides on amounts to be allocated to couples, it does so in relation to the resources available at the time. As I pointed out on Second Stage, considerable extra resources have been allocated to families. There has been strong focus on families in both last year's and this year's budgets. The effects of that will become operative from July next. I should stress that the increases announced in the budget will all come into effect. I see headlines in the press about cuts in respect of married couples and all sorts of people. The fact of the matter is that there will be increases effective from July next and everybody knows that to be the case. For example, the rates will be increased for a husband and wife on long-term unemployment assistance to £76 per week; where there are three children the relevant payment will be £107 a week; where there are five children it will be £127 a week and, where there are eight children, the payment will be £157 a week. That would not have happened heretofore because there is now a standard £10 allowable for each child in a family. That is why I went so far as to mention families with eight children — which of course there are — in receipt of unemployment assistance.
There will be very considerable increases which will come into operation in July. The effect of the section which we are dealing with here is that the increases and levels of payment will be the same for married couples and for couples who are cohabiting. That is the basic position. In relation to the review I would like to stress that so far as the Government is concerned, it is dealing with the immediate question. It is dealing with more than was addressed directly by the Supreme Court. It is dealing with section 12 (1) and (4) of the 1985 Act and it is also tackling for the first time the question of the household. The review group will be considering the matter between now and the end of the year.
I would like to stress that the Government's approach to the review is one of being fair, reasonable and equitable because it is a very important review which will provide the basis for the future development of the social welfare code.
I am convinced that before this review is complete the Department will find themselves in the courts many times being tested on this issue. The constitutionality of this matter leaves a lot of doubt in my mind. Where there is reasonable doubt of cohabitation, who will get the benefit of the doubt? This will happen very often. On Second Stage I asked where it has been established that there is cohabiting, a person can go to the community welfare officer having lost their unemployment assistance. I think the Minister contradicted this when he said it did not arise at this stage. A person can go to a community welfare officer for assistance if he or she has lost their unemployment assistance——
They do not lose the unemployment assistance. They get a different rate, the same as the married person.
But if there is a loss of income people have a right to go to the community welfare officer. Perhaps the Minister would give a positive response to these two points — if there is doubt about cohabitation who gets the benefit of the doubt and my second point relates to the community welfare officers who will be very much involved in this whole matter.
Does the Minister wish to reply to the points made by Deputy Wyse.
There is very little I can say. The Deputy is not talking about somebody losing their payment, but about the payment being the same as for a married couple. The Deputy is suggesting that in future when someone comes to make a claim the amount they would get would be the same as a married couple. Presumably, the Deputy thinks they should get two single rates.
That is the point. They will receive the same rate as a married couple, and therefore, there is no need for recourse to supplementary welfare. They will not lose their unemployment assistance.
I am calling Deputy O'Keeffe.
But where there is reasonable doubt?
Cohabitation is a feature not only for our social welfare code but of social welfare codes generally. We discussed this matter, to some extent, on Second Stage and I mentioned the other cases where cohabitation is involved. In Ireland the number of cases in a year would be very few. This is not something which is as widespread as people appear to suggest. What happens in effect is that if people are cohabiting — the Deputy is suggesting that there might be a reasonable doubt about this — the Department would have to be satisfied that they were cohabiting. The basis for being satisifed is tied into certain circumstances. Obviously, co-residence is the first indication. Then there is the question of sharing finances or the family issuing. These are questions which show clearcut cohabitation. The Department have to be satisfied that there is cohabitation. Where there is any doubt these questions would not arise. The Department have to be able to stand over the decision made on cohabitation. They have to live within the law in that sense.
I went through the different criteria — yesterday the Deputy quoted criteria used in Britain — which show that a couple are living together as man and wife. These are reasonably tangible criteria but, in any event, what would happen is that when people are making a claim for unemployment assistance, just as at present one has to declare whether one is a married person or not, one would have to declare whether one is cohabiting. At that stage the vast majority of cases would be claiming on that basis.
No, Minister.
But in terms of investigations, if there is doubt we must have satisfactory proof.
I called Deputy O'Keeffe earlier.
With respect, the Minister has not dealt with the point I raised in regard to discrimination. It seems clear that the Minister is discriminating in favour of single sex relationships. I want to ask the Minister directly about this. What is the position of two homosexual men cohabiting, living together under one roof as opposed to a husband and wife and as opposed to an unmarried man and woman in similar circumstances? As I see it, the household of the homosexual pair — both drawing social welfare benefit — will be getting £14 a week more than either the married couple or the unmarried man and woman. Surely this is introducing further discrimination into our social welfare code. It will be a matter of Fianna Fáil Government policy as to whether the Minister wants to discriminate against men and women, by they married or otherwise, as opposed to homosexuals.
The Minister can justify Government policy if he feels so inclined. However, the constitutional aspect of the issue is more important. Again, with respect to the Minister, it is all very well for him to talk about such laws and regulations being common in other countries, but other countries do not have a Constitution such as we have. Article 41 of our Constitution prescribes the constitutional parameters within which we must operate. It seems clear that this obvious and blatant discrimination will arise as a consequence of passing this legislation. Two men in a homosexual relationship or, indeed, two women in a lesbian relationship, who are cohabiting will receive £14 a week more than a married couple or an unmarried man and woman who are cohabiting. The Minister has not answered this point and it is on that basis that there is a duty on this House to tease it out and to make a recommendation that this Bill be referred to the Supreme Court. The Minister has given no answer on this point so I think he accepts by default that this Bill is unconstitutional.
I know that the Fine Gael Party have constitutionality on the brain. There is no question of this Bill being unconstitutional.
We have to respect the Constitution, and I wish the same respect would be shown on the other side of the House.
Let me not recall the time when the Fine Gael Party showed very little respect for the Constitution and the institution of the President. I do not have to go back very far to remember that.
You can go back further.
I think the Deputy would be wiser——
You can go further back.
I was very surprised by the Fine Gael Party at that time as indeed was most of the country.
Let us get back to the Bill.
The Deputy has raised the question of other categories in the social welfare code. The Supreme Court in its decision has recognised the position of cohabiting couples. It has put its stamp on the cohabiting couple so let no one suggest to me that they do not exist so far as the law is concerned. The situation exists, but was not dealt with in the 1985 Act. It is being dealt with in this legislation and there will be equal treatment for couples in both of those cases.
As I have said, the Government are providing a review of other implications in relation to single people, whatever their status, in the same household. We have asked the review group to examine the concept of household generally and to advise us on equivalence rates that should apply in the further development of the social welfare code. We know, for example, that social assistance — we are talking about social assistance and we want to relate it to need — in the United Kingdom, Germany and Belgium is paid on a household basis. The review group will examine the question of households and the designation of the head of households and how the system should deal with this question in the future.
As I said to the Deputy at an earlier stage, I recognise that there are other questions to be looked at but these other couplings that the Deputy has referred to are not recognised by the law at present. We are dealing with the situation as it exists and we will further examine the question of single people living in the same household. At present people sharing flats or whatever have to make special arrangements in relation to supplementary welfare. We have to examine the future guidelines for supplementary welfare where a number of single people are living together and claiming supplementary welfare. This question has not been analysed or examined in detail. The Commission on Social Welfare set out certain criteria: the criterion of need, the 1.6 rate for couples, and other criteria. However, the review group will go beyond that and will make an indepth analysis of social welfare. They will examine the whole question of households and the concept of the household in the future development of the social welfare code. It is intended that the review group will carry out a progressive examination which would lead to progressive developments in the social welfare code. It is envisaged that they would tackle the problems the Deputies have foreseen to the extent that they are relevant.
This Bill will end up in the Supreme Court one way or another.
I do not know what I am allowed to say at this point after my previous abortive attempt — though I do not know whether abortive is a constitutional word, given the referendum we had some years ago.
May I ask the Minister to clarify whether he believes the current Bill contravenes the European Directive from which the 1985 Act arose. With your permission, a Cheann Comhairle, I would like to quote from the Official Journal of the European Communities the Council Directive of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women on matters of social security. Article 4 states:
1. The principle of equal treatment means that there should be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:
—the scope of the schemes....
—the obligation to contribute....
—the calculation of benefits etc....
2. The principle of equal treatment shall be without prejudice to the provisions relating to the protection of women on the grounds of maternity.
If we take into account that the vast majority of adult dependants in marriage are women and in the case of unmarried couples cohabiting, the vast majority of adult dependants would be women, the procedure that the Minister is proposing to adopt is simply aggravating the discrimination which existed in the 1985 Act — which provides for a lesser amount of money for a woman in a marriage. This is now being applied to unmarried cohabiting couples. I would draw the Minister's attention to the debate on the 1985 Bill, column 291 of the Official Report for 3 July 1985 where, in response to questions that I raised with the then Minister, Deputy Desmond he replied as follows:
We have consulted our legal advisers on the issue and the restriction on the amount payable to a married couple vis-à-vis an unmarried couple is not discriminatory in terms of the directive because marital status is not being used as a means of discriminating indirectly on the basis of sex. A lot of work has been done in this area both at interdepartmental level and in consultation with successive Attorneys General.
Am I not correct in saying that the Supreme Court in the Hyland case has found that statement to be incorrect and that this is the reason the 1985 Act had had to be amended? Unfortunately the Minister is amending the Act in such a way as to extend the discrimination against married couples to unmarried couples. This is in direct contravention of the Council Directive on equality.
The Supreme Court found the 1985 Act defective by reference to our Constitution and not by reference to any EC directive. We have to deal with both matters.
I would like to clarify that point. I accept what the Supreme Court has found in relation to the Constitution but surely as a member of the EC we accept the rulings of the European Court as well. They have said that no domestic law may be enacted which contravenes European law and that directives made by the European Council are accepted by us as legally binding.
The basic point the Deputy is raising is that in the case of dependency it is an adult dependant who is in question and therefore whether it is a male or a female dependant, equitable treatment is given. I think what the Deputy is saying is that in practice there would tend to be more female than male dependants and therefore it could be seen that the dependency clause applies more to women than it does to men but that is not an argument for equal treatment. The fact of the matter is that the treatment is equal. As the Deputy knows, there is a trend for more male dependants and dependent spouses being male. That is the basic point — it is the dependency the clause is based on and as long as the word "dependant" applies equally to men and women, which it does, there is equal treatment in that respect.
I am not at all satisfied with the Minister's reply to my question. This is going to be a very important matter from now on because there will always be some doubt. I asked the Minister in the event of there being reasonable doubt, who gets the benefit of the doubt. In any court of law the accused will always get the benefit of the doubt but the Minister did not tell me the answer to my question. I know that in every case that will be brought before the welfare officer there will be some doubt and something positive should be established in that regard. Where there is doubt it is either the unfortunate person who gets the benefit of it or the Department. This will have to be clarified because I am not at all satisfied with the reply the Minister gave. I think he is being evasive on this matter. The question of the benefit of the doubt is very important because in all cases there will be doubt about cohabitation and I want to know who will get the benefit of the doubt.
The point raised by Deputy Wyse is quite an important one. The difficulty arises in finding a definition of cohabitation, finding any reference in the Statute Book to it, more importantly, finding within the Department written guidelines on it and ultimately how it will be worked on the ground. The problem is that it is quite unclear as to what constitutes cohabitation. As Deputy Wyse pointed out, it is also very unclear as to what evidence will be required to prove cohabitation. Finally there is the question of who gets the benefit of the doubt in the event of there being reasonable doubt.
If we take the world "cohabitation", its Latin root is probably the world "habitaire" which, according to the Oxford Dictionary, is to dwell frequently. How can we enforce legislation under which social welfare officers are to be expected to come to reasonable and fair decisions as whether people are dwelling frequently or not? For example, somebody might perhaps be in a household for two days a week. Is that dwelling frequently or not? A person might be missing for months, might be back in the house for weeks and then be missing for months again. Is that cohabitation? By merely referring to cohabiting as man and wife is not sufficient because a man and wife may have arrangements whereby they are not living together all the time either — for example, my own position whereby I am living in Dublin for the middle of nearly every week.
There is no clear view as to exactly what constitutes cohabitation. There is no statutory definition and there are no written guidelines. In that regard, Deputy Wyse is very much on the button. Where there is doubt, who gets the benefit of it? On whom lies the onus of proof? Is it a matter for the applicants to prove that they are not cohabiting or is it a matter for the official to prove that they are? That is the kind of legal morass we are descending into as a result of the fact that there is neither a statutory definition nor a clear departmental guideline. It is clear we are not going to get a statutory definition at this stage and it may be some time before there are clear departmental guidelines. The very minimum we should get is a clear and unequivocal undertaking from the Minister that in the implementation of this section the benefit of the doubt will be given to the applicant and, furthermore, that the onus of proof as to cohabitation or lack of it will lie with the Department rather than with the applicant. I could envisage, on the latter point, applicants experiencing extreme difficulty in having to produce the kind of proof that might be required by Department officials. We all know the difficulties people face in establishing that they are genuinely available for work. They have to traipse around the country to produce letters in their efforts to find work and so on. What sort of letters——
A letter from the wife.
Deputy De Rossa has given a helpful suggestion. What sort of letters will these people be required to produce to prove cohabitation or otherwise? I think the Minister has a duty to the House to clarify the question of proof and in particular to clarify the point raised by Deputy Wyse in regard to the benefit of the doubt.
The claim form is the basic document. Perhaps Deputies will be surprised to discover that most people are honest.
It is not surprising at all.
It is on the claim form that that matter will be set out. In relation to the question of there being an allegation or a suspicion of cohabiting, a social welfare officer has to establish the position to his or her own satisfaction. They have to satisfy themselves that there is a case of cohabitation. The Department's policy is always to give the benefit of the doubt to the client. The officer, in the first instance, has to establish to his or her own satisfaction that there is a case of cohabitation. The officer makes a report then to a deciding officer. The social welfare officer is only preparing the report to satisfy himself or herself that there is a case in the view of the social welfare officer. The report is given to the deciding officer who has to make a decision. If there is disagreement about that decision the appeals process comes into operation, and an appeals process follows. This is all part of the Department's operation of the social welfare code at present, and it is a normal part of the operation of social welfare codes in other countries.
The Foley case was taken on cohabitation. A widow was found to be cohabiting and a case was taken to the High Court. Giving the judgment on that case, the judge said there was no difficulty in understanding the expression "cohabiting as man and wife" as meaning living together as though a married couple when not married. The evidence presented in the case would indicate the applicant and the man concerned shared the same house and household amenities and lived in such a way as to be reasonably similar to a married couple.
The meaning of section 92 (3) of the Social Welfare Act, 1981, which disqualifies a woman from receipt of the widow's contributory pension when she and any other person are cohabiting as man and wife is clear and unambiguous. It is not the function of the court to inquire into the purpose of or the motives for the cohabitation condition. The appeals officer had sufficient evidence to support the decision he made. That case went right through the courts, and that is the judgment. The system is easily politically derided and people can turn a phrase for it very easily, but the Department of Social Welfare on behalf of the Oireachtas have to implement the legislation, and this is part of legislation which is a very normal part of the operation.
Under all our other schemes, only between 20 and 25 cases per year are disallowed at present. There may be other cases where there is an indication or evidence to suggest there may be cohabitation, but unless the departmental officers can be satisfied that that is the case, no action is taken. The suggestions in the papers and elsewhere and going out from this House and from Deputies outside the House are very wide of the practical, real situation and they do a disservice to the House.
The Bill is intended to achieve two objectives. The first is to remove the defect contained in the 1985 Equal Treatment Act which has been identified by the Supreme Court. The second is to deal with the major budgetary implications of the Supreme Court judgment. As I pointed out, there are widespread financial repercussions which are important in a budgetary context, and we want to have the review group look at them to see in what way the code should develop. We are very conscious of the wider implications of the Supreme Court judgment and for this reason we set up an expert review group to examine these implications.
The function of the group will be to examine the social welfare code as a whole in so far as it affects households in relation to the payment of assistance. This will require an examination of needs based assistance schemes as they apply to different households, having particular regard to the provisions of the EC Directive on equal treatment, the assessment of means for social welfare assistance schemes as they apply in different household situations and the limitations on payments as reflecting the needs of different types of household. In the light of this examination of the current arrangements, the review group will have to consider the changes required in the present system so as to reflect changing household patterns and patterns of dependency.
I have already advised the chairman of the group, Mr. John Curry, that it is necessary that the review be completed within six months to enable the Government to consider whatever changes are required in the context of next year's budget. This review affords us the ideal opportunity to reform the entire structure of social welfare payments so as to bring about greater consistency in the treatment of households with similar needs. While I do not want to pre-empt the outcome of the review, I suspect it may be necessary for us to follow the trends in other countries and return in some shape or form to the head of household concept which existed prior to 1985, but it would have to be a head of household concept with equal treatment. In some countries that is applied by offering people the opportunity to opt for whoever is to be the head of the household. Regardless of the outcome of the review. I have no doubt it will lead to a radical reform of the existing social welfare structure. I look forward to that review. Again I stress that in this whole matter the Government want to be fair, reasonable and progressive.
I am becoming more and more doubtful of getting a reply to the question I asked. The Minister mentioned the review about six times this morning. We all welcome the review. There is no point repeating that. The Minister said the deciding officer, after getting the information from the social welfare officer, will say there is reasonable doubt. The words "reasonable doubt" apply to the deciding officer. Let the Minister keep that in mind. That is the basis of this whole Bill. I want to ensure no injustice is done to anybody. The departmental official comes to the people concerned saying he has heard there is cohabitation there. The person may say the other person involved is a cousin or a boyfriend or something like that and there is no cohabitation. Then the official says there is reasonable doubt and he fills in his report for the deciding officer. Let me emphasise this because the Minister mentioned it; the report to the deciding officer says that there is reasonable doubt in this case. To whom does the deciding offier give the benefit of reasonable doubt, to the official or to the applicant? This is very important because this whole Bill will be based on doubt.
I am not interested in the number of cases which will be affected. If there is an infringement of the constitutional rights of even one person, we have a duty to defend that person. We are talking about the fundamental rights of people who are accused of certain things but where doubt exists. If the deciding officer has reasonable doubt, to whom does he give the benefit? I must get this reply otherwise I will have to vote against this provision.
I do not know how far I have to go to provide a reply which the Deputy will consider reasonable.
Spell it out.
I have spelled it out very clearly. There is reasonable doubt in quite a large number of cases and these cases are not pursued. That is the reality. I told the Deputy what the Department's policy is and that only between 20 and 25 cases per year are disallowed. The courts have said that the system is reasonable and operated in a fair way. Beyond that all I can say is that a report is prepared by a social welfare officer, a deciding officer makes a decision but if there is any doubt there will be no decision.
That is all I wanted to hear. Thank you.
I am seeking clarity on a few points. The Minister talks about the benefit of the doubt. Is it the claimant who has to establish for the welfare officer that a doubt exists? Presumably an investigation will take place only where the social welfare officer, or the deciding officer on the report of the social welfare officer, has reason to believe that cohabitation is taking place. How does the claimant establish doubt in the mind of the social welfare officer or the deciding officer? Can the Minister give an assurance that the question of a sexual relationship does not arise in the review of a claimant's case? Can we have an assurance that the social welfare officers or deciding officers will not have to seek access to bedrooms etc? Can we be assured that the question of cohabitation is simply a question of two people living together in the same residence, that it is only a matter of co-residence, the sharing of expenses, etc?
Deputy De Rossa made reference to a number of points I had intended to raise. I said during the Second Stage debate that this section is based on legislation operating in the UK. The principle is drawn from that legislation, as I checked last night. It is time we started to enact legislation without depending on the British Department of Health and Social Security. If a proper investigation has been done, it would have been clearly established that the legislation is not working in the UK. I was there last weekend and discussed this whole question. Many Irish people in the UK are being caught up in this. Young emigrants, and some not so young, paying £70 or £80 rent for one room have been forced to share their rooms with partners, male or female.
If two males decide to live together in one room and to sleep in the one bed, will they be deemed to be cohabiting? I am not saying there would be a very substantial number of people in that category. I repeat the question. If two single men live together in one room and sleep in the one bed are they deemed to be cohabiting if they are keeping company with each other? This is the kind of question which could be raised in the courts. I am not suggesting that we should encourage it. Those of us who have to run daily and weekly clinics will have to know the answer to this question.
The legislation in the UK is rightly referred to as the snooper's charter. People virtually have the right of entry to see what is happening in a person's bedroom. Are we providing that a social welfare officer has the right to enter a house without a search warrant, which would be required even by the Special Branch, and demand to see the domestic circumstances of two people he believes are cohabiting? Many complaints in this regard are made in a mischievous way against neighbours. They contact the local labour exchange and say that a certain person is sleeping with somebody's else wife. All sorts of problems can be created for people who are residing in the one house but not necessarily sleeping in the one bed. Is the Minister giving in this legislation, or by ministerial order under this Bill, the right to a social welfare officer to walk in the door and inspect all activity day or night? Will this happen only from 9 o'clock in the morning to 5 o'clock in the afternoon or will the social welfare officer have the right to call at 11 p.m. to see if the two are sleeping together? Can he get them out of bed at 4 a.m. to see if they are cohabiting? How will he establish during the day that people are cohabiting?
This is another instance in the social welfare code where a person may be deemed guilty until proved innocent. A person may be told that his or her benefit has been cut because he or she has been deemed to be cohabiting. That means that the person is convicted there and then and gets a reduced amount of money or no money at all. Then she has to prove herself innocent. This is happening throughout the social welfare code and is another aspect that will be challenged in the High Court or the Supreme Court. This assembly of Dáil Éireann will have egg on its face if this obnoxious legislation is put on the Statute Books.
I apologise for being a few minutes late; my car broke down. I would ask the Minister to inform the House what the appeals procedure is to be. Normally a person whose benefit is reduced or who is refused benefit can fill in an application for appeal which is sent to the local employment exchange manager and six or eight weeks later the appeal is heard. How is the appeal now going to be conducted? For example, what witness can the person who is accused bring? If it is a disability benefit appeal he can bring in a specialist in whatever field he wishes, provided he can pay him the £135 for attending, of which the Department pays him £35. Leaving that aside, in this situation what kind of witness can the person have? Can she bring a private detective to swear on oath that she is not cohabiting with another person, that they are not sleeping together, that they are not having a sexual relationship, that they do not have any family? Does the person have to bring in a gynaecologist to give evidence as to the sexual activity of the parties and what condition the woman is in? These are the types of questions that have to be answered. How otherwise are people whose benefit is being withdrawn on a flimsy complaint from someone to the local exchange or to the Department by telephone call or by anonymous letter, to defend themselves? How are they to prove that they are not cohabiting? There is no definition anywhere in this Bill of what constitutes cohabiting. There is no definition of the term in the Minister's opening speech or in any social welfare Bill that I am aware of. I would like the Minister to state if there is such a definition, and if so to spell it out here and put it on the record of the House.
We are having further repetition now.
I appreciate that, a Leas-Cheann Comhairle. I was just going to ask the Minister to spell it out.
We will have to ask the Committee on Procedure and Privileges to allow us to re-run the tapes that RTE have taken during the course of the morning so that the Deputy who, for one reason or another, was unable to be here, can listen in, because we have gone through almost all of that. I will go through some of it again for the Deputy's sake.
I did apologise.
I appreciate that. The whole question of two males, two females, three people in a house and all these variations——
It could be sold as a best seller.
The basic point here as far as this legislation is concerned is that they are not cohabiting as man and wife. The review needs to look at the whole question of household and how the income is distributed within it especially in the future development of the system in relation to need.
The normal procedure applies in regard to appeals. It is a matter for the appeals officer, and normally a person can bring somebody with them on an appeal if they wish. I would emphasise that in all systems which involve cohabitation there are only between 20 and 25 cases a year disallowed at present. I know that any case that is disallowed gets a lot of publicity so that it sounds as if the problem is widespread.
Are they all in County Louth?
No. There might be a few suspected cases in County Louth.
There must be none elsewhere because there are 25 in County Louth.
There might be some suspected cases, but the benefit of the doubt is given. That in effect means that there are cases where there is a suspicion but once the benefit of the doubt is applied benefit is not disallowed.
The judgment in the Foley case related to the Department's operation on cohabitation. In the judgment the judge said he had no difficulty in understanding the expression "cohabiting as man and wife" as meaning living together as though a married couple when not married; that the evidence presented in the case would indicate the applicant and the man concerned shared the same house and household amenities and lived in such a way as to be reasonably similar to that of a married couple; that the meaning of section 92 (3) of the Social Welfare Act 1981 which disqualifies a woman from receipt of a widow's contributory pension when she and any other person are cohabiting as man and wife was clear and unambiguous; that it was not the function of the court to inquire into the purpose of or motives for the cohabitation condition. The appeals officer had sufficient evidence to support the decision he made.
In relation to the future development, I stressed earlier that the Government want to be fair, reasonable and progressive in this. That is why we have asked the review group to look particularly at the whole household situation, at the question of head of household and the direction we should go in the future, to do that urgently to have it for the end of this year so it can be taken into account in the budgetary arrangements and the associated social welfare Bill next year.
I am not going to make a contribution. I am simply asking the Minister if he would address himself to the points I raised in my contribution.
The Deputy raised the question of access. Access is normally provided to the house. If a person is not prepared to provide access to the house there is obviously a suspicion about the whole case. The social welfare officer preparing the report will take any of those matters into consideration in his report.
The Minister really has not addressed the points I raised, which were the question of a person who is being denied the full unemployment assistance because the social welfare officer claims that she is cohabiting and whether it is necessary for that couple to prove or disprove a sexual relationship.
That is one of the elements that is internationally accepted. There is also the financial situation, whether there is a sharing of finances and of residence is obviously a factor. In relation to the questions about a sexual relationship, obviously if there are children it is clear that there is a sexual relationship. However, it is only one element.
In the case of two brothers whose parents have died and who are living in the same house, both on unemployment assistance, and both sharing the expenses of the household, to all intents and purposes they could qualify as cohabiting except for the fact that there is no sexual relationship there. When we strip away all of the layers of language from this issue what we are talking about is the social welfare officer's belief that a sexual relationship exists between the man and woman. In that case how does a couple prove otherwise?
The Bill deals with the question of a man and a woman living as a couple. The case of two brothers is something that will have to be looked at by the review group.
You are not going to take money from them as well, are you?
No, but we have to consider how to develop in future. I tried to show in the preamble that there is a difference between the two cases and that when a man and woman are living together as husband and wife there are shared things which lead to these equivalent scales which are agreed. These things are not quite the same for single people in a similar situation. Some aspects are obviously similar. For instance, a fuel allowance to either a married couple or two single people should be the same, as it would be required to heat one house in both cases. Up to this year where two brothers, for instance, were on unemployment assistance, one excluded the other and there was no fuel allowance. From autumn, one of the two brothers will get an allowance to heat the house. Those are the kinds of problems that need to be addressed. One of the two brothers could say he had fallen out with the other and dispute the fact that the other brother was getting the allowance. We have to have a means of dealing with that. One solution would be to ensure that one of them was listed as the head of the household and he would get the fuel allowance or other extra supplements related to the household needs.
Perhaps the Minister and Members would agree that on this section we have had discussion, repetition and refinement almost to the point of exhaustion and that we have other sections to deal with.
This is a very technical Bill and someone with a legal mind should really be sitting in here discussing it. In my contribution on Second Stage I mentioned having a criteria relating to cohabitation. In any court of law if a person was accused of cohabitation for instance, a judge would have to follow some sort of criterion set down by the Minister. The criterion in Britain and in other European countries is that there must be a common household, There must be stability in the relationship, financial support, a sexual relationship, children, and a public acknowledgement of the relationship. So far, this Bill does not give any criteria or direction to either the Department or to the courts.
I accept that the Minister is putting this question to the review committee for a definition but in the meantime decisions will be taken by social welfare officers. The review committee could take three months, six months or a year before defining cohabitation. What will happen in the meantime where social welfare officers can decide what is going to happen without guidelines by which to work?
In relation to sharing expenses it has been assumed in legislation that a married couple share expenses. The Supreme Court decision is that both people should be treated equally, so we are forced to treat married couples and cohabiting couples equally. The Supreme Court in its decision recognised the cohabiting couple just as the married couple have been recognised all along. We are now treating the cohabiting couple in the same way as we are treating married couples, but we are recognising also that the expenses of the household should be taken into account. That is why we want the review group to look at the wider aspects of the household, for the future. The review could be quite radical in relation to the development of our social welfare code. All the other arrangements already in place stay as they are pending the outcome of the review group. Then we will look at the various repercussions which will occur throughout the social welfare code from the Supreme Court decision.
Will the Deputies who claim a division please rise in their places?
Ten Deputies rose.
Let the vote proceed.
Tá
- Abbott, Henry.
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Matthew.
- Brennan, Séamus.
- Browne, John.
- Burke, Ray.
- Calleary, Sán.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Mary T.
- Cowen, Brian.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fahey, Frank.
- Fitzpatrick, Dermott.
- Flood, Chris.
- Flynn, Pádraig.
- Foley, Denis.
- Gallagher, Denis.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Haughey, Charles J.
- Hilliard, Colm Michael.
- Hyland, Liam.
- Jacob, Joe.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Leonard, Jimmy.
- Leyden, Terry.
- Lynch, Michael.
- Lyons, Denis.
- McCarthy, Seán.
- Mooney, Mary.
- Morley, P.J.
- Moynihan, Donal.
- Nolan, M.J.
- Noonan, Michael J.
- (Limerick West).
- O'Dea, William Gerard.
- O'Donoghue, John.
- O'Keeffe, Batt.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Rourke, Mary.
- Power, Paddy.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Swift, Brian.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Walsh, Seán.
- Wilson, John P.
- Woods, Michael.
- Wright, G.V.
Níl
- Bell, Michael.
- De Rossa, Proinsias.
- Higgins, Michael D.
- Howlin, Brendan.
- Kemmy, Jim.
- McCartan, Pat.
- Mac Giolla, Tomás.
- O'Sullivan, Toddy.
- Spring, Dick.
- Taylor, Mervyn.
We should like to call a vote on this section as everybody is here.
We have listed our opposition to it.
Tá
- Abbott, Henry.
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Matthew.
- Brennan, Séamus.
- Browne, John.
- Burke, Ray.
- Calleary, Seán.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Mary T.
- Cowen, Brian.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fahey, Frank.
- Fitzpatrick, Dermott.
- Flood, Chris.
- Flynn, Pádraig.
- Foley, Denis.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Haughey, Charles J.
- Hilliard, Colm Michael.
- Hyland, Liam.
- Jacob, Joe.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Leonard, Jimmy.
- Leyden, Terry.
- Lynch, Michael.
- Lyons, Denis.
- McCarthy, Seán.
- Mooney, Mary.
- Morley, P.J.
- Moynihan, Donal.
- Nolan, M.J.
- Noonan, Michael J.
- (Limerick West).
- O'Dea, William Gerard.
- O'Donoghue, John.
- O'Keeffe, Batt.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Rourke, Mary.
- Power, Paddy.
- Roche, Dick.
- Stafford, John.
- Swift, Brian.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Walsh, Seán.
- Wilson, John P.
- Woods, Michael.
- Wright, G.V.
Níl
- Bell, Michael.
- De Rossa, Proinsias.
- Gregory, Tony.
- Higgins, Michael D.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- McCartan, Pat.
- Mac Giolla, Tomás.
- O'Sullivan, Toddy.
- Spring, Dick.
- Taylor, Mervyn.
I should like to comment briefly on this section. Any claims for unemployment assistance made after the date of the Supreme Court judgment will be payable in accordance with the provisions of the amended section 12. However, unmarried couples cohabiting as man and wife to whom the limitation is now to be applied may already have been paid at the higher rate and section 3 provides that any amounts properly paid before the passing of this Bill which, by virtue of the provisions of section 2 would be recoverable, shall not be recoverable. In other words, the section provides that the terms of the Bill will apply to claims from this time onwards and there will be no question of trying to recover money.
Apart from section 4, this is the only other section in the Bill which I will not be opposing for the very good reason that it is the only attempt by the Minister and the Government to avoid creating hardship for people affected by the 1985 equality legislation. There is no doubt that the application of the other sections of the Bill will create hardship. There is no doubt also that in many respects the sections of the Bill generally do not comply with the decision in the Hyland case. I am seriously concerned that the Bill is in breach of the equality directive which was the basis for the 1985 Act in the first place. I am not opposing this section but I will be opposing the Bill in total.
I believe this section finds favour with all members of the Opposition but I suggest to the Minister that he should consider one further aspect which needs to be looked at in the context of hardship that may result from this Bill, that is, transitional payments or some kind of bridging finance through the supplementary welfare system which should be made available to unmarried couples who will be affected by this Bill.
It seems that those who will have their payments reduced as a consequence of this Bill will find their standard of living thereby affected and will have great difficulty in adjusting to a reduced standard of living. Unfortunately, we are flying blind on this issue to some degree and we have no idea at all as to the numbers involved. The Minister has been unable to give us any indication as to how many people will be involved but we can be sure, whether it is ten, 100 or 1,000, that some will be affected. The consequence of this Bill is that those people will suffer a drop in their standard of living and they will have considerable difficulty in adjusting to that. The minimum the Minister should be prepared to do is to make provision through the supplementary welfare system to ease that adjustment. I believe that could be easily done and I should like an assurance from the Minister that steps will be taken to ensure it is done.
I welcome section 3. At the outset of my contribution on Second Stage I said that it was of vital importance for the Minister and his officials to carefully monitor the Bill to ensure that no hardship would be inflicted on people. It is a new Bill, there are a lot of technical provisions in it and, therefore, it is important for everybody concerned to ensure that it is carefully monitored and no hardship is inflicted on anybody. I agreed with Deputy O'Keeffe that some social assistance should be available in cases of hardship, and this is why I welcome section 3. I believe the section will be welcomed by all Deputies in the House. However, I want to emphasise that it is a very technical section. The constitutionality of the Bill is another day's work but I ask the Minister to ensure that every defect found in the Bill will be rectified so that the review body will have a proper basis on which to base their findings.
I want to put it on the record that my party will not be opposing this section. However, in saying that I do not want it to go abroad that we are in any way in favour of this Bill. Quite frankly, section 3 is the same as cutting a person's throat and then giving him a bandage. Essentially all the Government are saying in this section is "we will reduce your benefit but it will not be reduced retrospectively". The fact that section 3 is included in the Bill makes the point very clearly that there is hardship involved. This section has been included to avoid the Department having to penalise people, sums of £11 and £14 have been mentioned. The fact that this will not be done retrospectively means nothing because this obnoxious Bill will continue in force only until such time as there is amending legislation to nullify it. We will not be opposing this section.
With regard to what Deputy O'Keeffe said, I will certainly arrange for sympathetic consideration to be given to any case as it comes forward.
I appreciate that.
Obviously monitoring and review will be part of those arrangements.
Before the Minister gets in on this Stage I want to express, as I did on Second Stage, the abhorrence my party feel at what the Fianna Fáil Government are doing in relation to the equality legislation which was introduced in 1985 — and let it be said, introduced defectively. I argued very strongly at that time with Ministers — this is in the context of the section the Minister is now amending, that section 12 would create a situation where married couples would be treated less favourably as a result of the 1985 Act than couples who were living together and unmarried. At that time the Minister for Social Welfare said he was satisfied that everything was in order, was legal and in accordance with the EC Directive. Clearly the Irish courts have now said that it is not legal.
Instead of giving married couples their rights, as was clearly the intention of the court, the Minister and the Fianna Fáil Government have turned round and deprived unmarried couples of what they had already been in receipt. That is not a fair or just way to deal with people on social welfare. We must remember that we are not dealing with people with large incomes or people who have a lot of money or disposable assets they can realise in order to survive. By and large, we are talking about people in receipt of the lowest income generally available to people in this State.
Therefore, for the Minister to argue that there will be increases effective in July next and that families will benefit therefrom is not a sufficient argument because all families on social welfare, not merely those on unemployment assistance, will benefit from those increases.
I should like to say a few words which relate more to Report Stage. The approach adopted in this Bill is the only responsible and reasonable one that could be adopted in present circumstances. We will treat married and cohabitating couples equally by paying unemployment assistance to them on the basis which reflects their factual position and which treats households with similar needs in a similar manner. We are arranging for a review of all circumstances in which people share a common household so that we can devise a system fair to all applicants. We are dealing immediately with the need for equal treatment of married and cohabitating households. At the same time we are providing that nobody who received the higher payment prior to the Supreme Court decision, will be under any obligation to repay such amounts.
Overall the Bill constitutes a reasonable approach. I believe that the Government are being fair, equitable, reasonable and responsible in so providing. Henceforth cohabiting couples will be treated in the same way as married couples and will not have an advantage vis-à-vis social assistance schemes. At the same time, we will be urgently looking at the development of the overall social welfare code.
I thank those Deputies who have supported the passage of the Bill through the House.
I will not speak much longer on the matter. In my view this Bill constitutes a very narrow interpretation of the equality directive passed by the EC back in December 1978 and is simply being applied in a very niggardly way. That approach is not confined to the present Government; it was adopted by the previous Government also. What precisely this and previous Governments have done in regard to fulfilling their obligations under this directive needs to be addressed. If, as seems likely, this Bill will be passed, then I have already made it clear that we, as a party, will lodge a complaint with the European Commission with regard to that action, contending that we are not satisfied that the equality Directive is being fully or properly implemented.
I might make a couple of further points. I am not satisfied that the Minister has explained fully or assured us that the question of a sexual relationship between couples is the final determinant on which a social welfare officer will make a decision. I have drawn the analogy between two brothers living in the one house, sharing the accommodation, household expenses and so on, who will receive the full unemployment assistance to which they are entitled whereas a man and woman, married or unmarried, in the same circumstances will not receive it. In the later case, the assumption will be that cohabitation is taking place, that there is a sexual relationship involved. In those circumstances a couple will have to prove that that is not the case. Clearly they cannot prove that co-residence or sharing of expenditure and so on is not taking place. Therefore, the only redress left to them will be to disprove cohabitation, to disprove that there is a sexual relationship involved. I am not satisfied that the Minister has given me the assurance I requested, which is that people's private lives will not be pried into unduly as a result of the enactment of this Bill.
As far as I am concerned, this Bill constitutes an entirely unsatisfactory way of dealing with the problem left by the Coalition Government. In relation to the 1985 Act the Minister could have approached the issue in a generous manner — when I say the Minister I am referring in reality to the Government — and given married couples what the court found they were entitled to.
I might make a final plea to the Minister on the point I raised in regard to the constitutionality of this Bill. It is now clear that a homosexual couple, cohabating, will received £14 per week more than a man and wife or man and woman living together in a common law relationship. Surely that constitutes obvious discrimination? It seems so blatant that there is at least a prima facie case that it contravenes Article 41 of the Constitution dealing with the rights of the family.
There is a duty on all of us in this House to ensure, as far as possible, that legislation passed complies with the Constitution. I view with alarm emerging evidence that this Government are prepared to treat the Constitution with contempt. After all, the Constitution is our last line of defence between a dictatorship and democracy. I believe that all elected representatives have a duty to comply with the provisions of the Constitution, both as to its letter and spirit.
The Minister has not indicated whether the point I raised has been discussed with his legal advisers, whether their opinion has been sought and, if so, what is their opinion; in itself that may tell a tale. In these circumstances, the proper course for this House is to recommend that this Bill be referred to the Supreme Court for a decision as to its constitutionality. There is a provision in the Constitution itself for such a course to be adopted by the President on the advice of the Council of State. I have no doubt that the fact that this House would make such a recommendation would at least carry considerable weight with the President in considering whether such action should be taken.
I make a final plea to the Minister to follow that course of action so that we can all be clear in our minds that we are operating within constitutional parameters and, more importantly, that circumstances will not evolve — which I clearly envisage — that litigation will be dragged through the courts for months and years on end following the passage of this Bill.
In the final hours of this 25th Dáil this Bill reminds me somewhat of the rod licence legislation having been rammed through at the eleventh hour. Everybody is now aware of the problems created by that legislation which remains with the party that put it through. I have no doubt at all that we have not heard the last of this Bill which has been dealt with in the same manner as the rod licence issue.
I join my colleague in Fine Gael, Deputy Jim O'Keeffe, in suggesting that this Bill — I say this as a layman but somebody with some knowledge of social welfare matters — appears to be riddled with possible illegalities. I suggest publicly that anyone who is affected by this case should consider putting their case to the courts. I have no doubt — whatever Government are in power — that it will be overturned either by our own domestic courts or by the European Court. I suggest that Deputy O'Keeffe and indeed my colleague had a glorious opportunity this morning, in the dying hours of this 25th Dáil to join with the Labour Party and The Workers' Party in defeating the Bill. That would have taken care of all the problems to which Deputy O'Keeffe referred when recommending a course of action to the President or the Council of State. We do not have to do that.
It has to take care of other Government problems as well.
Up to 1.30 p.m. today we on the Opposition benches have the right to put this Bill away by a vote. That is the way to deal with it, and that is how we are trying to deal with it but, unfortunately, we are not getting the necessary support. However, everyone must make up his own mind. It must be recorded that the Government are changing the law to reduce social welfare payments to unemployed couples, living as man and wife, by £14 per week. That is the factual position. Nothing that can be said by the Minister, or anybody else, will change that. That will be the situation so long as this Bill is on the Statute Book. If we have the opportunity in the 26th Dáil I want to place on record and give a public pledge that the Labour Party will commit themselves to repeal this innocuous piece of legislation which should never have come before the Oireachtas.
On the Final Stage of the Bill I should like to say that section 1 is the most important part of the Bill. I placed much emphasis on the words "reasonable doubt" and I think the Minister has clarified the position. It is of vital importance that there are no dragging of feet in bringing the report of the review group to fruition. This can be done without delay because the basis has been set by the report of the Commission on Social Welfare. The basic principles are there and it is only a matter of trying to simplify the social welfare structure and to remove any complications that exist. I know the Department have done everything in their power to try to make social welfare more simple and to try to avoid unnecessary delays. The review body is of vital importance. The Minister has a tremendous opportunity to ensure that in that review all the impediments in social welfare will be removed forthwith.
I am glad the Minister has accepted what I said about ensuring that the working of the Bill is monitored very carefully. I know innocent people will suffer. The constitutionality of the Bill is another day's work. It is the responsibility of the Department of Social Welfare to keep a watchful eye on the workings of this Bill to ensure that nobody is victimised because there will be doubts. I know of no case — and I am sure the Minister will agree with me — where there will not be some doubt expressed by his officials or by some legal adviser. It is for that reason that I place so much emphasis on the words "reasonable doubt". That is the basis of the Bill. I thank the Minister for co-operating with us today.
I have noted what Deputies said and I will certainly bear their concern in mind. I believe the approach we are taking is reasonable, practical and right at this time. The review will be an urgent one. Deputies will have an opportunity afterwards to look at the wider developments which should take place within the social welfare code.
Tá
- Abbott, Henry.
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Matthew.
- Brennan, Séamus.
- Briscoe, Ben.
- Calleary, Seán.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Mary T.
- Cowen, Brian.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fahey, Frank.
- Fitzpatrick, Dermott.
- Flood, Chris.
- Flynn, Pádraig.
- Foley, Denis.
- Gallagher, Denis.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Hilliard, Colm Michael.
- Hyland, Liam.
- Jacob, Joe.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Leonard, Jimmy.
- Leyden, Terry.
- Lynch, Michael.
- Lyons, Denis.
- McCarthy, Seán.
- Mooney, Mary.
- Morley, P.J.
- Moynihan, Donal.
- Nolan, M.J.
- Noonan, Michael J.
- (Limerick West).
- O'Dea, William Gerard.
- O'Donoghue, John.
- O'Keeffe, Batt.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Rourke, Mary.
- Power, Paddy.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Swift, Brian.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Walsh, Seán.
- Wilson, John P.
- Woods, Michael.
- Wright, G.V.
Tellers: Tá, Deputies V. Brady and D. Ahern; Níl, Deputies McCartan and Bell.
|
Bell, Michael.De. Rossa, Proinsias.Desmond, Barry.Gregory, Tony.Higgins, Michael D.Howlin, Brendan.Kavanagh, Liam. |
Kemmy, Jim.McCartan, Pat.Mac Giolla, Tomás.O'Sullivan, Toddy.Quinn, Ruairí.Spring, Dick.Stagg, Emmet.Taylor, Mervyn. |