I move that the Committee agree with the Seanad in amendment No. 1:
Section 2: In page 6, subsection (1), line 8, after "3(1)”, “or 4(1)” inserted.
This is a drafting amendment.
I move that the Committee agree with the Seanad in amendment No. 1:
Section 2: In page 6, subsection (1), line 8, after "3(1)”, “or 4(1)” inserted.
This is a drafting amendment.
Seanad amendments Nos. 7, 12 and 14 are related to Seanad amendment No. 2 and all may be taken together by agreement.
I move that the Committee agree with the Seanad in amendment No. 2:
In page 7, paragraph (c), line 12, “1995” deleted and “1999” substituted.
These are technical amendments. Amendments Nos. 2 and 12 insert in the Bill an updated collective citation of the Registration of Clubs Acts, 1904-99. Amendment No. 7 provides an additional definition of certificate of registration in section 8. Amendment No. 14 inserts an updated collective citation for the Licensing Acts, 1833-99.
Seanad amendments Nos. 3 and 4 are related and will be taken together by agreement.
I move that the Committee agree with the Seanad in amendment No. 3:
Section 6: In page 11, subsection (1)(c), line 40, after "accommodation", "or ceasing to provide accommodation or any such services or amenities" inserted.
On Committee Stage in the Seanad, Senator Connor pointed out that while section 60 deals with discrimination in the providing of accommodation, there could also be discrimination in the depriving of accommodation. The Minister of State, Deputy Mary Wallace, undertook to examine the matter before Report Stage. Government amendments Nos. 3 and 4 were accordingly introduced on Report Stage in the Seanad to meet the point raised by Senator Connor. I am grateful to him for raising the matter.
I move that the Committee agree with the Seanad in amendment No. 4:
In page 12, between lines 19 and 20, the following inserted:
"(3) References in subsection (2) to the disposal of an estate or interest in premises or the provision of accommodation or of any services or amenities relating to accommodation include references to the termination of any tenancy or other interest in those premises or ceasing to provide such accommodation, services or amenities.".
I move that the Committee agree with the Seanad in amendment No. 5:
Section 7: In page 12, subsection (1), line 46, "section 49" deleted and "Part VII" substituted.
Amendments Nos. 6 and 17 are related and will be taken together by agreement.
I move that the Committee agree with the Seanad in amendment No. 6:
In page 14, subsection (3)(d)(ii)(II), line 9, "State.", deleted and the following substituted:
(e) where the establishment is a university or other third-level institution, it provides different treatment in the allocation of places at the establishment to mature students (within the meaning of the Local Authorities (Higher Education Grants) Acts, 1968 to 1992).”.
Amendment No. 6 adds a new paragraph, section 7(3)(e), which indicates that where the educational establishment is a university or other third level institution, it is not discrimination to provide different treatment to mature students at that establishment. Existing legislation, the Local Authorities (Higher Education Grants) Act, 1992, provides a definition of a mature student in the context of the administration by local authorities of the higher education grant scheme. A mature student is a person of 23 years or older in the year of entry to third level. This amendment was brought forward because concern has been expressed to me that the Equal Status Bill took no account of existing admissions policies at universities which afford preferential treatment when admitting mature students. I accordingly made an appropriate amendment to ensure these policies are not overridden by the Equal Status Bill.
In amendment No. 17, a similar change is made to the provisions of the Employment Equality Act dealing with vocational training in so far as they relate to third level education.
This amendment means that positive action is acceptable for mature students. Does that mean if universities introduce special arrangements for other groups, as some do for students from disadvantaged backgrounds, it is allowed under the Bill?
There is general provision in the legislation for positive action measures. This measure was introduced because it was felt the specific age should be mentioned in the legislation.
I move that the Committee agree with the Seanad in amendment No. 7:
Section 8: In page 14, lines 22 to 24, subsection (1) deleted and the following substituted:
"(1) In this section—
‘certificate of registration', in relation to a club, means the certificate of registration of the club under the Registration of Clubs Acts, 1904 to 1999;
‘club' means a club that has applied for or holds a certificate of registration.".
Amendments Nos. 8, 9 and 13 are related and will be taken together by agreement.
I move that the Committee agrees with the Seanad in amendment No. 8:
In page 15, lines 17 to 25, subsections (7) and (8) deleted and the following new subsections substituted:
(i) the Court makes an order under subsection (6)(a) setting out its determination that a club is a discriminating club, and
(ii) the order is the first such order in relation to the club, the Court shall include in the order a provision suspending the certificate of registration of the club for a period not exceeding 30 days.
(b) Where the Court makes any subsequent such order, section 10 shall apply and have effect in relation to it.
(8)(a) The applicant, the club or any other person on whom a copy of the application under subsection (3) was served may, within 42 days after the order, appeal to the Circuit Court against the order or a provision of the order suspending the certificate of registration.
(b) On an appeal against the order the Circuit Court may by order–
(i) in case the District Court has determined that the club is not a discriminating club, either–
(I) affirm the order, or
(II) allow the appeal, make a determination that the club is a discriminating club and, if the determination is the first such determination in relation to the club, suspend the certificate of registration of the club for a period not exceeding 30 days,
(ii) in any other case–
(I) affirm the order,
(II) where the order includes a provision suspending the certificate of registration, affirm the determination of the District Court but vary the period of suspension, or
(III) allow the appeal.
(c) On an appeal which is only against a provision of the order suspending the certificate of registration, the Circuit Court may by order vary the period of suspension.
(d) The Circuit Court shall cause a copy of its order to be sent to the Minister.
(9) A period of suspension of a certificate of registration provided for in an order under subsection (6)(a) shall commence–
(a) if no appeal is made against the order or the period of suspension, on the 50th day after the order is made, or
(b) if such an appeal is made and the order is affirmed, or the period of suspension is affirmed or varied, on the 50th day after the order is made on the appeal,
and shall end–
(i) if no appeal is made against the order or the period of suspension, on the expiration of the period of suspension provided for in the order,
(ii) if such an appeal is made and the order or period of suspension is affirmed, on the expiration of the period of suspension so provided for, or
(iii) if on appeal the period of suspension is varied, on the expiration of the period as so varied.
(10) Where an appeal against an order under subsection (6)(a) (other than an order referred to in subsection (7)(a)) is not brought, the order shall come into effect on the 50th day after it is made.
(11) An order under this section suspending the certificate of registration of a club shall, while it is in force, have effect for the purposes of the Registration of Clubs Acts, 1904 to 1999, as if no certificate under those Acts had been granted in respect of the club for the period of suspension.
(12) No employee who is working in a club during any period of suspension of the club's certificate of registration shall be disadvantaged by reason of the suspension in his or her employment during that period.
(13) For the purposes of subsection (12) ‘employee' means any person who works under a contract of employment with an employer or is a regular part-time employee as defined in section 1 of the Worker Protection (Regular Part-Time Employees) Act, 1991.".
When the Equal Status Bill was discussed on Report Stage on 16 February, I was pressed to accept a number of amendments to sections of the Bill dealing with discriminating clubs, particularly with reference to the impact of those provisions on golf clubs and for women golfers. I indicated that it was my intention to consider the issues raised, to consult with the Attorney General and to meet the Golfing Union of Ireland and the Irish Ladies Golf Union. While I gave no undertaking on that occasion on a substantive amendment, I said I would ensure the matters raised were given careful consideration.
Arising from further consideration of the issues raised, the consultations with the Attorney General and the meetings I held with the two golfing bodies, amendments were made in the Seanad to the provisions dealing with registered clubs. The purpose of amendments Nos. 8, 9 and 13 is to introduce a greater degree of flexibility into procedures related to discriminating clubs. Under the new procedures, on the first finding by a District Court that the club is a discriminating club, the certificate of registration is suspended for a per iod of up to 30 days. The suspension may be appealed and, on appeal, affirmed or varied. On subsequent finding of discrimination, section 10 comes into play – the club is liable to forfeit its certificate of registration.
Since the inception of the Bill there has been an opportunity not only for the club to appeal against the finding that it is a discriminating club, but to seek a reversal of that finding on the basis that it has put its house in order. Under section 10, if the club seeks such a reversal, its certificate of registration can be renewed while the case is pending.
The amendment I propose will act as a warning system for discriminating clubs. A club will not be liable to lose its certificate of registration the first time it discriminates but, ultimately, if a club continues to discriminate, it is liable to lose its certificate of registration. Many golf clubs operate a dual structure with separate streams for men and women. If the golf clubs are not to be found discriminating, they will have to adjust their rules and practices. The area is complex and, once the legislation is in place, I will ask the Equality Authority to draw up a code of practice in this area. Such a code of practice, as provided for under section 56 of the Employment Equality Act, will be admissible as evidence in court.
This issue has been debated at length on all Stages of the Bill. I regret the Minister has taken the easy option regarding clubs which discriminate. The issue arose in the context of golf clubs which discriminate against women but has wider implications in relation to other clubs which discriminate.
I welcome the fact that the Minister will ask the Equality Authority to draw up codes of practice but what powers of enforcement will those codes of practice have? The courts will deal with the provisional suspension of the licence of a club. Under the amendment, a club can be suspended for 30 days and can then appeal. The club could win that appeal. This is not a strong way to deal with clubs which discriminate against people on any of the grounds in the legislation.
How would the code of practice influence a court? Does the Minister envisage any way, if the measure is found to be ineffective, this could be dealt with? Genuine concerns were raised by the bodies which approached us to say that clubs which want to discriminate will find ways round the legislation. This is not as strong as we had hoped. We wanted it to be clear that a club which discriminates will be severely punished.
The Minister, in reaction to the concerns expressed by the clubs, has given them a second chance. He has said that if they discriminate there will be a period before the licence is taken from them. The legislation is being watered down. Many people would say these clubs had plenty of opportunities to get their houses in order. I hope this does not become an excuse for clubs to go back to court again and again. Will the Minister give an assurance that this will not become a delaying tactic used and abused by clubs which discriminate?
We cannot underestimate the challenge it will be for some clubs to introduce a dual form of membership. That is a good and interesting way to handle the problems which were there. We cannot underestimate the resistance to change which there has been and the difficulty in setting a non-discriminatory way of operating in some clubs. I hope this does not become a delaying tactic for clubs and that they react to the positive aspects of equal status legislation rather than fight against them in the District Court and then have to go to the Circuit Court.
I am rather surprised to hear Deputy O'Sullivan suggest and that Deputy Fitzgerald holds the view that the measures in this legislation are not strong enough. On the first occasion, the legislation provides for the suspension of the certificate of registration. That, in itself, is a serious enough step. On a subsequent occasion, there is provision in the legislation for the forfeiture of the certificate of registration. Clearly, that is a very serious sanction and is something about which the clubs are quite worried. It is felt these are the sanctions required in the legislation and no apology is made for them. To suggest that these sanctions are minor, technical or are not strong enough is grossly mistaken.
With respect, we accept those sanctions are serious. I was making the point about the further appeal. There is no question but that the sanctions are serious, which I welcome. We have always supported that.
The opportunity does not really exist in the legislation to go back to the court again and again. I am at a loss to understand from where that suggestion comes.
I welcome the Minister's reassurance on that.
It is important we say that because otherwise the wrong impression might be given.
In regard to the guidelines and whether they are mandatory, they are obviously guidelines in accordance with the legislation. In section 56(4), it is specified that an approved code of practice will be admissible in evidence. Clearly, any such evidence will have a cogent effect. I would not anticipate that it would have been worth our while including the provision in the legislation if it were to be negated. In those circumstances, I hope Deputies are reassured in terms of the legislation, that is, the codes of practice, the sanctions and the possibility of going to court.
Is the Minister saying the code of practice drawn up by the Equality Authority can be cited in court and would have a fairly strong effect in terms of the decisions of the court?
Yes. Effectively, the code of practice can be utilised as an item of cogent evidence and account would be taken of it in criminal proceedings or, indeed, in any other proceedings under the legislation.
I move that the Committee agree with the Seanad in amendment No. 9:
In page 15, subsection (9)(a), line 30, “42 days” deleted and “50 days” substituted.
I move that the Committee agree with the Seanad in amendment No. 10:
Section 9: In page 15, subsection (1), lines 46 and 47, and in page 16, lines 1 and 2, paragraph (a) deleted and the following new paragraph substituted:
"(a) if its principal purpose is to cater only for the needs of –
(i) persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin,
(ii) persons who are members of the Traveller community, or
(iii) persons who have no religious belief,
it refuses membership to other persons,".
This amendment, which was made on the advice of the Attorney General, Mr. McDowell, is intended to protect rights of freedom of association. The Attorney General has advised that the existing exemption in section 9 (1)(a) does not sufficiently protect such rights. For example, the Free Masons are not a religious body and, therefore, cannot avail of the exemption in section 9(1)(a). It is, however, a body which is set up to encourage interpersonal bonds of a fraternal nature and are thus, par excellence, as a body of individuals who are exercising their constitutional right of freedom of association. Our advice is that it would be extremely difficult to justify in law a refusal to renew the Mason's certificate of registration which is based not on any drink related ground, but on their refusal to admit women.
The same logic extends to many other groups, lesbian and gay organisations, the ICA and Traveller groups, which might well wish to exclude members of a particular category. There is no rational basis on which to suggest that such groups do not enjoy the same right as others to drink together in the privacy of their own clubs.
The amendment extends the exemption to protect clubs whose principal purpose is to cater only for persons of a particular gender, marital status, family status, sexual orientation, religious belief or no belief, age, disability, nationality or ethnic or national origin or members of the Traveller community. It does not include race or colour based clubs. Thus a club catering for the needs of widows, Travellers, Free Masons, Italians and so on will not risk forfeiture of its certificate of registration if it refuses to admit other persons. I stress that these changes were included on the advice of the Attorney General and have been carefully formulated to pass constitutional muster.
I see from where the Minister is coming and that organisations would want to gather for particular purposes – for example, the ICA and gay and lesbian organisations and so on. I see why the Minister would want to protect such organisations. Is it his opinion that it cannot be used as a way to discriminate? That is the danger in this clause. The definition of the principal purpose of the organisation is what I am concerned about, that is, that an organisation could not just exclude women for example in a discriminatory way by using this clause.
Was the Minister lobbied by many groups in relation to this protection? If so, who lobbied him? The Minister mentioned the Free Masons. The point Deputy O'Sullivan raised was interesting. While we understand the principle of protection of free association of groups, is there a danger that it could be abused or, as used to happen in golf clubs, access to services, which should be available to all people, could be narrowed down and people could be excluded from them? I will be interested to hear the Minister's views on that.
The difficulty with this is that there will always be the danger that some loophole will be found. I was not subjected to any pressure in terms of this amendment. It was the strong advice of the Attorney General that the amendment should be made. It stands to reason if one examines it. For example, nobody would suggest that I should insist that I become a member of the Irish Countrywomen's Association. I am certain I would not be admitted and it would be ludicrous if I was able to insist. There might be men who feel they should be members of the Irish Countrywomen's Association and they may have an objection to being refused, but there is little I can do for them.
It makes sense to ensure we have a bit of commonsense and that is what we are engaged in here. Obviously, there are tremendous legal niceties here and one would expect nothing less from the Attorney General. He has drafted this as tightly as he possibly could. I have confidence that the legislation would pass a constitutional test. I cannot be expected, in the final analysis, to put square pegs in round holes nor should round holes be expected to accept square pegs.
I move that the Committee agree with the Seanad in amendment No. 11:
In page 16, subsection (1), between lines 12 and 13, the following new paragraphs inserted:
"(c) it has different types of membership, access to which is not based on any discriminatory ground,
(d) for the purpose of reducing or eliminating the effect of any rule or practice of the club (whether adopted before or after the commencement of this section) restricting access to particular types of membership to persons of a particular gender it offers concessionary rates, fees or membership arrangements to persons who were or are disadvantaged by any such rule or practice,”.
These amendments were introduced in response to various concerns expressed by women golfers that the Equal Status Bill, although intended to promote greater equality, might not achieve this aim or could even be disadvantageous to women. The new paragraph (c) of section 9(1) will make it clear that clubs can continue to have more than one category of membership, provided that access to such categories is not determined on the basis of a discriminatory ground. It will thus be permissible, for example, for a club to continue to have both full members and associate members so long as men and women can access both categories without discrimination. This was already implicit in the Bill before the present amendment, but there were some misconceptions that the Bill would require the abolition of the associate membership category.
I have included a new paragraph (d) in section 9(1) which extends the concept of positive action to include concessionary arrangements introduced by a club to mitigate the effect of past gender based discrimination. Thus, for example, a club will not be regarded as discriminatory if it makes concessionary arrangements for former associate members who were excluded from full membership because of their gender. I would emphasise that the new text permits concessionary arrangements but imposes no obligation on clubs to make such arrangements.
I am aware that women golfers would like us to go further. They have made known to me that they consider it unjust that they could be charged the full levy for joining as full members despite their long association with a club. I have given careful consideration to formulating an amendment to meet these concerns. However, I am advised that it would not be appropriate to go further than I have in addressing the position of women in golf clubs. I assure the House that I have made absolutely certain that I have gone as far as I possibly could.
In regard to the balance the Minister has tried to bring in, it is difficult to make up for past discrimination. This confronts people in society all the time. People are constantly hampered because of discrimination in the past. An example is the issue of women's representation in public life. Clearly there has been exclusion of women from public life, but does one immediately move on to introduce quota systems, take positive action and so on, and how does one do that? As much positive action as possible should be built in to make up for past discrimination. However, it is a question of balancing rights in the here and now.
The Minister says that the main issue is that both full and associate membership should be available equally to men and women. That is a very good basic principle and I certainly accept it. It appears that clubs cannot be obliged to make up for past discrimination by bringing in a particular rate for women who have been discriminated against over a long period. However, the amendment certainly allows them the possibility to take account of the discrimination. I hope clubs will look seriously at this legislation and exercise discretion where it is allowed in the case of women who wanted to be full members but could not be. The legislation allows for a discretionary approach by clubs and, now that fees have gone up substantially and extremely large fees now have to be paid, they should build on it wherever possible.
Experience is that where there is no legislation, action to adjust past discrimination and deal with the effects of it has not been strong. That is why legislation is always so important. It sets a standard, and attitudes and behaviour change once legislation is in place. We know that from experience.
On balance the Minister has gone as far as he could. There is discretion for clubs to deal with past discrimination. The point is that making up for past discrimination is not easy. It is very challenging, and there is no easy way in law to do it. It behoves us, therefore, to have the strongest legislation we can to deal with discrimination so that we do not find ourselves again in 20 years' time trying to make up for past discrimination in whatever area.
I welcome the fact that the Minister has come this distance. We all regret that he cannot go any further to address past discrimination. Having gone through this with a fine toothcomb, we realise the difficulties.
The Minister referred to the Equality Authority drawing up a code of practice in relation to clubs, loss of licences and so on. Does he intend that the code of practice would incorporate issues of discrimination so that, for example, male golfers will be made aware that they can now become associate members of clubs or that their club can facilitate them in becoming associate members? I am sure there are many men who would prefer to pay the lower associate member ship fee. I hope the male golfing union, the Irish Golfing Union, will now adopt a positive approach in encouraging clubs to provide for the different categories without discrimination and to make allowances for the fact that in the past women members could not become full members by not charging the large membership fees to such members who, through no fault of their own, could not be full members in the past.
As Deputies have graciously acknowledged, the provision now introduced in the legislation goes as far as possible. Golf clubs should take the opportunity provided in the legislation to offer the concessionary rates suggested. It must be clear to everybody that people who have been members of a club for a very long time are in a different category to new members. It is my sincere wish that clubs throughout the country will accept the spirit of this legislation, understand why I could not go any further, and implement the measures in accordance with the wishes of the Oireachtas and society generally, which the Oireachtas reflects.
There may be some clubs which will not exercise discretion by way of positive discrimination and there is little I can do by way of sanction to ensure that they do. However, it must be clear to everybody that sometimes justice must be done without there being a stick to ensure that it is done. There are some things in life that one must do because they are morally right. It is morally right in this case that clubs should give sympathetic consideration to the women concerned but there is little I can do if they do not. Clearly, society will be the best judge in that event.
I move that the Committee agree with the Seanad in amendment No. 12:
Section 10: In page 16, line 29, "1995" deleted and "1999" substituted.
I move that the Committee agree with the Seanad in amendment No. 13:
In page 16, after line 47, the following new subsection inserted:
"(2) In this section ‘order undersection 8' does not include an order under that section providing for the suspension of the certificate of registration of the club concerned under the Registration of Clubs Acts, 1904 to 1999.”.
I move that the Committee agree with the Seanad in amendment No. 14:
Section 15: In page 19, subsection (2), line 10, "1997" deleted and "1999" substituted.
I move that the Committee agree with the Seanad in amendment No. 15:
Section 17: In page 20, subsection (4), lines 5 and 6, "as defined in section 2 of the Road Transport Act, 1932," deleted and ", within the meaning of section 2 of the Road Transport Act, 1932, as amended by section 66 of the Road Transport Act, 1933," substituted.
This is a drafting amendment.
I move that the Committee agree with the Seanad in amendment No. 16:
Section 45: In page 32, line 15, "resides or ordinarily" deleted and "ordinarily resides or" substituted.
This is a drafting amendment put forward by the Seanad which I accepted.
I move that the Committee agree with the Seanad in amendment No. 17:
Schedule: In page 34, lines 19 to 22, paragraph (c) deleted and the following new paragraph substituted:
"(c) in section 12 (vocational training)–
(i) by the substitution, in the opening words of subsection (7), of ‘Without prejudice to section 3 of the Refugee Act, 1996, nothing in subsection (1)' for ‘Nothing in subsection (1)' and ‘an educational' for ‘a vocational',
(ii) by the substitution, in subsection 7(b), of ‘considerations, or' for ‘considerations.', and
(iii) by the insertion of the following paragraph:
‘(c) in the case of a university or other third-level institution, it provides different treatment in the allocation of places on any such course to mature students (within the meaning of the Local Authorities (Higher Education Grants) Acts, 1968 to 1992).',”.
Agreement to Seanad amendments is reported to the House and a message will be sent to Seanad Éireann acquainting it accordingly.
Can we make a comment?
The Deputy should be brief because it is not strictly in order when discussing Seanad amendments.
We have concluded very important legislation today. I pay tribute to all who have been involved, to the Minister and the staff in his Department who have worked so hard over such a long period on this Bill. Many people have been awaiting this legislation. It is worth noting that the Equality Authority is receiving about 1,000 inquiries per month relating to issues of discrimination and equality. In our Celtic tiger economy there is no room for complacency on how issues of discrimination are being tackled and the amount of discrimination being experienced. For many people, the gay and lesbian community, the disabled, those of a different race, Travellers and so on, access to services, quite apart from discrimination in employment, is a big issue. We must continue to monitor the accommodation of such people within services and the outcome for them of access to those services. This legislation will be an important arm in dealing with these issues. It is necessary to give the Equality Authority the resources it needs to do the job as well as it can.
The Ceann Comhairle asked the Deputy to be brief.
I hope the codes of practice can be developed to ensure the Bill is strengthened and its provisions are useful.
It is important that we mark this milestone in anti-discrimination legislation with the introduction of this Bill. I pay tribute to the Minister and his staff and the former Minister, Mervyn Taylor, who initiated this action. The Bill is slightly weaker than the original legislation, particularly the reasonable accommodation part. I echo what Niall Crowley, chief executive of the Equality Authority, said last week that this part of the legislation needs to be tested to see how far it can go. That is the most important aspect of it – it is not as strong as we would like it to be. I congratulate the Equality Authority on its work so far and I hope the legislation will prove positive.
I am grateful to Deputies O'Sullivan and Fitzgerald, the spokespersons for the Opposition parties, for their tremendous contribution to this legislation which is a milestone in the evolution of equality laws in this State. At the beginning of the new millennium it is appropriate to recognise that every individual in our society is entitled to equal access to services. That is what the legislation seeks to do.
In particular, I thank the staff of my Department for all their work in drafting and carrying through the amendments to the legislation. It took a considerable length of time and a great deal of expertise for which we are all extremely grateful. When enacted I intend to bring this measure into operation as soon as practicable. It will be necessary to make regulations to put in place staff, the Equality Authority, the office of the Director of Equality Investigations and make other administrative changes. I envisage this will take some months. As Deputies are aware, I cannot ratify the UN Convention on the Elimination of all Forms of Racial Discrimination until this legislation is in place. When it is I confirm we will be taking the necessary steps to ratify it. I thank the staff of the House for their considerable assistance during the passage of the legislation.