I move: "That the Bill be now read a Second Time."
The Equal Status Bill, 1990, was first published, by permission of this House, in the name of Deputy Spring on 10 April 1990. Since then there has been something of a revolution in Ireland; at least, at first glance it might seem so. In April 1990, the only people talking about the possibility of a woman in the highest office in the land were a few wide-eyed idealists dismissed by all and sundry as anything but realists, but the impossible happened and the election of a woman President opened a new window in Ireland. This Bill, in large measure, is about opening that window further.
The two previous equality Acts of the seventies are aimed at outlawing discrimination in the workplace on grounds of sex. The aim and purpose of this Bill is to create a climate of understanding and mutual respect in which all are recognised as equal in dignity and rights. In this respect this Bill goes further than any equality legislation we have had in the past. It could hardly be more appropriate that we are debating this Bill now.
For the last month, Ireland has been convulsed by a wave of emotion and agonising about the tragic plight of a 14 year old girl pregnant as a result of rape. Her situation and that of her family caused many of us in this House and outside to question values and attitudes that we have taken for granted but the Supreme Court judgment has confronted us all yet again with what can only be called a crisis of equality.
It is possible to state quite simply that unless and until we address the issues arising from the Supreme Court judgment we will have created a new and oppressed minority in Ireland. That minority consists of every woman who becomes pregnant. In future, to put it at its simplest, no pregnant woman will be able to leave Ireland for any purpose without fear of being stopped, unless presumably she is leaving Ireland on a stretcher. That is a horrific scenario and it is the inevitable consequence of the Eighth Amendment to the Constitution whose promoters always claimed they never wanted to target individuals. It is a classic example of the sort of double think and double standards which have permeated this debate since it began.
It may seem fanciful to some to describe the abortion controversy as an issue of equality but, in essence, that is what it is. The restriction on the right to travel within the European Community for purposes which are perfectly legal throughout the Community is something which a largely patriarchal society has imposed on some women. Could you image the furore there would be if a court decided that a man wishing to secure a foreign divorce, for example, should be restrained from leaving Ireland?
The effect of the travel restriction is that we are telling Irish women that we simply do not trust them. Why should we trust them? We do not pay them, we do not promote them, we do not encourage them towards education and we do not even let some of them run something as complex and as difficult as a golf club. Of course, we talk eloquently about apartheid or about injustice anywhere in the world, but when are we going to recognise the injustices we see every day here at home? It is not just women who are the targets of inequality; within the last year, for example, there was a great deal of media coverage of the fact that many Dublin pubs had a policy of preventing travellers from entering simply because they were travellers. How many physically handicapped people could testify to the difficulties they have had in securing jobs not because of any lack of ability but simply because of the nature of their handicap?
The background of inequality against which this Bill has been published is real and substantial. The debate about equality has been going on since the early seventies but discrimination against minorities still exists. There is, it will have to be said, a fund of goodwill in Ireland towards the idea and the principles of equality, yet, Governments have been slow to translate that goodwill into action. Indeed, we have tended to follow rather than to lead in this area, often waiting for a European Directive before we act.
The need for change in this area is obvious. This has been highlighted in a number of reports, including the reports of the Council for the Status of Women and the Employment Equality Agency. Yet, the Government have contented themselves with the appointment of yet another commission in this area — the Second Commission on the Status of Women established in the spring of 1990.
When our Bill was published two years ago we, in the Labour Party, predicted that no matter how well intentioned and busy that commission are it will be another two years before there is a call on the Government to act. In fact, there is as yet no sign that the report of the second commission is about to be published. Of course, even if it were to be published tomorrow it would no doubt gather dust for another 12 months before Government action began to materialise.
We believe that action is appropriate now and that it is appropriate over a wider area than that envisaged by the Government in their terms of reference for the second commission. That is the reason we are calling on the Government parties to support this Bill, at least in principle. On behalf of the Labour Party, I am offering tonight to allow a reasonable period to elapse before seeking Committee Stage of the Bill, if it passes Second Stage. I can tell the House that this Bill has already been widely welcomed by many bodies involved in the rights of minorities. Indeed, the second commission themselves have shown a great deal of interest in the Bill in their contacts with us.
We sincerely hope that the Second Stage of this Bill will do more than carry on a debate. We want to bring the debate a decisive step further by translating into action a set of principles widely shared in the community. The time for action has now come.
I will outline the principal features of the Bill. The grounds on which this Bill prohibits discrimination are wider than those in any previous legislation. It prohibits discrimination on grounds of sex, marital or parental status, sexual orientation, religion, age, handicap, race, colour, nationality or national or ethnic origins, including membership of the travelling community.
Secondly, the objective of the Bill is to make discrimination unlawful, not only in the workplace but also in education, in the provision of goods, facilities and services, including recreational and banking and other financial services, entertainment, accommodation, transport, the services of any trade or profession and in the disposal of management of premises. In the existing equal pay legislation, before a claim for equal pay can be established the person making the claim must make a comparison between the treatment afforded to a woman and that afforded to a man in similar circumstances. Under our Bill a comparison can be made between the way a woman is treated and the way a man would be treated in similar circumstances. This is known as the "hypothetical comparator" and it is a reform which has been long looked for by the Employment Agency.
To give an example of this, it is a fact that many of the lowest paid industries are those which employ all women. At least part of the reason for this low pay is the absence of male comparisons. Another traditional reason is the relatively low level of trade union organisation in all-women employments. Under our proposals, women in these industries — the contract cleaning industry, for example — would be able to make a case for equal pay with men if they could demonstrate that pay rates in the industry would be higher if men were employed to do their cleaning work.
Our Bill defines three types of discrimination, direct, indirect and victimisation. Direct discrimination is self-explanatory; in fact, it seems to be the case that many of the cases of overt discrimination against women, especially in the area of recruitment which were common as recently as 20 years ago, seem to have disappeared. It is certainly the case, however, that there remains a high degree of discrimination against women in such areas as pay and promotion. Indirect discrimination can and does arise in situations where, on the surface, the same conditions apply to men and women but where the conditions are geared to ensure that a higher proportion of one sex can meet them. For example, an employer who advertised for machine operators and made it a condition that all applicants had to be over six feet in height would be guilty of indirect discrimination against women unless, of course, the intending employer could prove that it was an essential height for dealing with the machines. It is not that long ago since it was a common practice among employers to take a careful note of the women applicants for jobs to see who were wearing wedding rings. Nothing in the job advertisement would specify a bias against a married woman applicant but the bias would be there all the same. The Bill also defines as discrimination the victimisation of anyone who asserts his or her rights under the legislation. This is a usual feature in legislation of this sort.
The Bill makes it illegal for employers to discriminate against any employee or prospective employee on the grounds listed. One of the effects of the Bill would be that any discriminatory terms or conditions of employment in any contract or collective agreement would, ipso facto, be null and void. Every contract of employment will be deemed to contain an equality clause which will become a guarantee to the employee that he or she is not and cannot be discriminated against. It will also be illegal under the Bill to discriminate in the terms of membership of any partnership or trade union, employers' organisation or any professional or trade organisation or to discriminate in the terms of the benefits attaching to such membership. At present, to take just one example, the barristers' profession forces people over a certain age to pay higher entrance or registration fees. This would become illegal under the Bill; so would the unspoken attitude, still present in some craft unions, which has ensured that only a tiny proportion of women succeed in becoming apprentices in quite a wide range of crafts.
The Bill recognises that there are certain situations in which people with a handicap may have to be refused particular jobs because the nature of the handicap may make it impossible for them to undertake the duties associated with the job. However, in general terms it will be illegal to discriminate against people on the grounds of handicap and it will also be illegal to discriminate against a handicapped person in any situation where the special needs of that person can be met without undue hardship. Too many employers automatically reject people in wheelchairs, for example, when relatively minor adjustments to the working environment would make employment not only possible but readily practicable. This Bill will enable people with a handicap to challenge employers about why they would not be prepared to make such changes.
Disputes about equality in employment will be referred under the Bill to the Labour Court. At present such disputes must be referred within six months of the commencement of the alleged inequality but we propose a substantial improvement under our Bill whereby the dispute need only be referred within six months of the date it ended. Procedures for dealing with disputes are simplified in this Bill. There is a new provision to assist a person who believes he or she has been discriminated against. They will be given a standard form on which to put questions to the employer about the reasons for the treatment which they believe to be discriminatory and on which the employer can reply. These questions and answers will be admissible in evidence before the Labour Court and the court will be entitled under the Bill to draw appropriate inferences from any evasion or equivocation on the part of the employers in their replies and, likewise, to draw inferences from the failure of the employees to reply to those queries when that turns out to be the position.
At present the burden of proof in equality cases is on the employee. The Bill proposes to transfer that burden of proof to the employer who will have to establish that his actions complained about were non-discriminatory. This is not a unique provision. For example, in unfair dismissals cases the employer also carries the onus of establishing that a dismissal is fair. The Bill also includes provision for appeals and enforcement of equality recommendations. In cases where determinations made by the Labour Court are not carried out they can acquire the same status as a determination of the Circuit Court and can be enforced accordingly. This is a much simplified version of the present procedure.
Under the Bill it will be unlawful for anyone involved in the provision of goods, facilities and services to discriminate against anyone on the grounds of sex, marital or parental status, sexual orientation, religion, age, handicap, race, colour, nationality or national or ethnic origins, including membership of the travelling community. A discrimination in this context can include the refusal of access to the goods or services, or failure to provide them, or the provision of inferior quality or service. The following are examples of the facilities and services to which the Bill applies: access to or use of any public place; accommodation in a hotel, guesthouse and so on; banking, insurance, loans, grants, credit or finance; entertainment, recreation or refreshment; education facilities; transport or travel facilities and the services of any profession or trade or any public or local authority. There are a number of specific examples of areas which require to be addressed and are addressed by this provision.
I referred to the practice of barring travellers from public houses simply because they are travellers. It is well known too that anyone whose surname suggests membership of the travelling community will have great difficulty in securing bank loans or insurance policies. The Bill proposes to compel the providers of services, ranging from recreational services to financial services, to apply the same rules to everybody looking for those services, and no more or no less. This Bill will not force pubs to serve anyone who is violent or troublesome whether they are members of the travelling community or members of the settled community. It must be said that members of the travelling community by no means hold the monopoly on violence or causing trouble or problems in pubs; the settled community are as equally guilty in that respect on occasion. Neither will the Bill force anyone to extend credit to people who have a bad track record of repayment. What it will do is force companies to re-examine their attitudes and end any discrimination based on ethnic status or gender or any of the other labels we all too often attach to people.
The Bill will make it unlawful for a person who has power to dispose of premises or who is involved in the management of premises to discriminate in the terms on which he offers those premises for disposal, or in relation to aspects of the tenancy, or in rejecting or accepting applications for the premises or in his treatment of individuals in relation to lists of people in need of that kind of premises.
It will be unlawful also for any educational establishment in receipt of public funds to discriminate in terms of admission policy or in the way it treats individuals who apply for admission or in the way it treats individuals after they have been admitted. Exceptions are made in the Bill for single sex schools and schools which admit members of one nationality or one religion only. However, these exceptions apply to admission only. Thus, a girls' school will not be compelled to admit boys but will be obliged to offer the same facilities and subject options as are provided for boys in similar circumstances.
All complaints relating to discrimination outside the employment field are to be dealt with by way of civil proceedings for damages in the same way as any other claim in tort. In certain cases damages may include compensation for injury to the feelings of an individual. A principal can be liable for acts carried out by his agent and an employer can be liable for any act carried out by his employee. The Bill will also make it unlawful for a person to procure another person to do anything which constitutes unlawful discrimination.
As the House will be aware, the Constitution guarantees the right of citizens to form private associations and clubs. That is a right which should not be lightly interfered with. Accordingly, the Bill does not seek to impose conditions on such clubs which would be in conflict with the constitutional right of association. However, there are two provisions in the Bill which apply to any sporting or recreational clubs which discriminate on the grounds of sex. The first will make it unlawful to give any payment or grant out of public funds to any such club. The second is that no such club may apply for registration or the renewal of registration under the Registration of Clubs Act, 1904 to 1981. As the House will be aware, a club not registered under these Acts is not permitted to sell or supply excisable liquors; in other words, is not allowed to run a bar.
Under the Bill the Employment Equality Agency would be renamed the Equal Status Agency and their powers would be widened. They would have the general functions of working towards the elimination of discrimniation, drawing up codes of practice, assisting individuals to press claims under the Bill, promoting equality of opportunity and advising the Minister for Labour on the working of the legislation with a view to making it as effective as possible.
The Bill goes on to outlaw discriminatory advertising. Under it the Labour Court will be allowed to award interest on any compensation awarded. Employers can be obliged to display notices containing information on equality in prominent locations in the workplace.
There is a number of exceptions in the Bill. In general terms, the purpose of these exceptions is to ensure that positive discrimination or affirmative action aimed at ensuring greater equality in the long run is allowed and encouraged; that preferential treatment in particular cases of need is recognised, for example, preferential treatment in the case of pregnancy, or special action to recognise the paticular needs of the handicapped, the elderly or members of the travelling community. They seek to ensure that people are not penalised for acting in good faith and without an intention to discriminate and that people are not forced to take unreasonable actions. For example, it would not be unlawful to restrict eligibility to Irish national teams to Irish citizens and so on. It is not the purpose of the Bill to penalise the ICA, the Catholic Boy Scouts or Shamrock Rovers. Exceptions have been carefully drafted with the aim of encouraging equality and ensuring that the dignity of every citizen is fully realised.
This is a Bill which is aimed at the promotion of equality. The Labour Party believe that this is an aspiration shared by every Member of this House. The whole purpose of this Bill is to enable all citizens of Ireland, in every walk of life, to regard themselves as being on an equal footing as every other citizen. If this Bill becomes law it will require employers, landlords, publicans, bankers, public officials, hoteliers, educators, indeed all of us, to re-examine the prejudices which are part and parcel of an unequal society. It will require changes in structures, in rules and regulations, in some cases in factory and business premises but, above all, in attitudes. Deputies will see that the Bill has been drafted with great care. Meticulous attention has been given to details, to providing for necessary exceptions and to envisaging a framework that can operate in a practical manner on this important subject. However, the Labour Party do not claim to have universal knowledge on this subject. If this Bill goes forward to Committee Stage the party will be more than happy to adopt the universal wisdom of all sides of the House. I know that many Members of the House will be very anxious to make valuable contributions to the Bill. The Labour Party will be more than happy to discuss the matter at length and to take on board whatever amendments or adjustments are found to be necessary or desirable, both from the Opposition side and from the Government side.
It is interesting to recall that only 100 years ago, a relatively short time in legal history, the law of this country and of the adjoining island, sometimes referred to as the mainland, prohibited a married woman from having in her name any property whatsoever. That was the law until the Married Women's Property Act, 1882, came into force. The development towards equality for women has been a very gradual process over that time. There is no doubt that we have achieved much, but much remains to be done. The present position is not acceptable in the nineties. I venture to think that in decades ahead, when historians look back on this period in Ireland, they will be appalled at the fact that so many discriminations have been allowed to continue in legislation and are still there in 1992.
We in the Labour Party are trying to be of assistance across the board in this matter. We went to very considerable trouble in drafting and preparing this legislation to try to take on board these outstanding matters which should have been legislated for long ago. However, the opportunity for dealing with them arises now. I hope that the Government and the Minister will be practical about this matter and will not automatically go for the reflex action of nit-picking at the Bill and finding difficulties with it. There is already on the Statute Book some very valuable additions to our legal system, which are operated daily in our courts, which were the result of Private Members' legislation. With the co-operation and assistance of the Government, the Minister and all sides of the House, this legislation can also fulfil that role. I am asking the Minister to support the Bill and allow it to go forward to Committee Stage. He should make suggestions on it and let us discuss proposals for its improvement. We will be more than receptive in taking on board any such suggestions or proposals on Committee Stage.
It is time we confronted open and hidden attitudes that contribute to residual instances of inequality in Ireland. This Bill will help in a very large measure to do that. Let us not wait for directives from Brussels, putting ourselves yet again, as we have done so often in the past, into the humiliating position of not doing the right thing because we should do so but of reacting to directives and mandatory injunctions from the European Commission in Brussels.
The Irish people as a whole and Members of this House support the concept of equality and are against the concept of discrimination in all walks of life. Therefore let us translate that into action and let us do it now while we have the opportunity to do so. Let us not be told that the Government at some future date will come up with their own measure. We know from the Order of Business every day of the delays in the parliamentary draftsman's office and much legislation is deferred until a later date. This Bill has been skilfully prepared by lawyers; all aspects of it have been examined and it is now before the House. Now is the time to act, not at some vague future date when the Government may get around to dealing with it.
The effects of not dealing with this matter are felt every day of the week. Next week or next month a handicapped person or a married woman looking for a mortgage will be discriminated against. I have experienced many instances of discrimination. There is still discrimination against married women in financial matters. The legacy of 1882 still persists whereby a married woman seeking a mortgage from a bank, building society or local authority is discriminated against. Perhaps it does not apply as much to a single woman as to a married woman. Lending institutions, including local authority lending institutions, discriminate against married women who seek mortgages or loans in their own name. They ask about the husband's position and his earnings. The wife's position as an individual person is not taken into consideration. She is entitled to that as a matter of morality and, if this Bill is adopted, she will be entitled to it as a matter of law. On behalf of the Labour Party I commend this Bill to the House.
