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Dáil Éireann debate -
Thursday, 25 Mar 2004

Vol. 582 No. 5

Equality Bill 2004 [Seanad]: Second Stage.

I move: "That the Bill be now read a Second Time."

The measures which I bring before the Dáil are intended to meet Ireland's obligations as a member of the European Union to implement Community initiatives provided for under Council Directives 2000/43/EC and 2000/78/EC, adopted under Article 13 of the EC Treaty, and Council Directive 2002/73/EC adopted under Article 141 of the treaty. The directives, commonly known as the equality directives, provide for equal treatment on the grounds of gender, racial or ethnic origin, religion or belief, disability, age and sexual orientation. The race directive, 2000/43/EC, provides a flexible general framework for combating discrimination on the grounds of racial or ethnic origin in both the employment and non-employment areas. The framework employment directive, 2000/78/EC, provides a general framework for the prohibition of discrimination in regard to employment and occupation on the grounds of religion or belief, disability, age or sexual orientation. The gender equal treatment in employment directive, 2002/73/EC, updates and improves the 1975 equal pay and 1976 equal treatment directives.

The overall effect of these three directives is to require member states to prohibit direct discrimination, indirect discrimination and harassment on grounds of gender, racial or ethnic origin, religion or belief, disability, age and sexual orientation in regard to employment, self-employment or occupational and vocational training. Sexual harassment and victimisation are also prohibited. The race directive also applies to discrimination in access to and the supply of goods and services.

As Members of the House are aware, Ireland is already to the fore in its promotion and protection of the principles of equality and freedom from discrimination as a result of the ground-breaking legislation enacted in this regard in 1998, with the Employment Equality Act, and in 2000, with the Equal Status Act. This legislation prohibits both direct and indirect discrimination in the areas of employment and access to goods and services on nine grounds; gender, marital status, family status, sexual orientation, religion, age, disability, race or membership of the Traveller community. Thanks to the quality, effectiveness and far-sightedness of our existing equality legislation, many of the amendments required by the EU directives are relatively minor and mostly of a technical nature.

There are a number of new provisions in the directives which require transposition into national law for which it is both necessary and appropriate to make provision in primary legislation. I propose to provide for their transposition through amendments to the Employment Equality Act and the Equal Status Act, as provided for in the Bill. The Social Welfare (Miscellaneous Provisions) Bill 2004 provides for the transposition of the directives with respect to matters relating to occupational pensions.

It is important to ensure that a coherent and consistent approach is maintained in our legislative and administrative infrastructure for equality. This will facilitate ease of access for persons who claim they have been discriminated against, particularly where more than one ground for discrimination is cited. For this reason, amendments arising from the directives are being implemented at the same time in one Bill. In addition, with a view to preserving coherence across the nine grounds in the legislation, it is intended to implement the requirements of the directives in a way which applies their provisions to each of the nine grounds and to both employment and service provision where this is feasible and appropriate.

An opportunity arises in this process to align more closely the provisions of the Employment Equality Act and Equal Status Act. As already referred to, the general principle here would be to broaden the scope of any such provision, for example, extension of the definition of discrimination under the Employment Equality Act to include discrimination by association or imputation, as is the case under the Equal Status Act, and extension of sexual harassment under the 1998 Act to encompass same sex sexual harassment, as under the 2000 Act. It is also considered appropriate to avail of this opportunity to amend the Employment Equality Act to incorporate the provisions of the gender directive which reflect European Court of Justice case law in regard to discrimination on the grounds of pregnancy or maternity leave, within the meaning of the Maternity Protection Act, 1995.

A consolidated approach to the amendment process is also reflected in the decision to incorporate directly into the Employment Equality Act and Equal Status Act, the provisions of Statutory Instrument No. 337 of 2001 implementing Council Directive 97/80/EC, which deals with burden of proof in gender discrimination cases. The directive, which applies to gender discrimination only, provides for the transfer to a respondent of the evidential burden of proof where a complainant establishes a prima facie case of discrimination. Under the race and framework employment directives, this provision will extend to proceedings on the discriminatory grounds and in the circumstances covered by those directives. For the purposes of consistency and transparency of the legislation, I intend to amend both the Employment Equality Act and Equal Status Act in a way which applies the provision to all nine grounds, including the original ground of gender.

As a result of the framework employment directive, the obligation on employers under the Employment Equality Act to provide reasonable accommodation to meet the needs of people with disabilities is being broadened. As a result, employers will be required to take appropriate measures to make such accommodation, except where these would impose a disproportionate burden. The broader focus of the new provision will contribute to increased access to the workplace for people with disabilities. The constitutional limitation, which has confined the requirement in respect of reasonable accommodation under national law to a threshold of "nominal cost", will continue to apply in the case of the Equal Status Act, as there is as yet no similar EU provision in the area of goods and services. A significant extension to the scope of application of the Employment Equality Act is to be made in respect of the self-employed and partners in firms. As a result, persons who are or were employed under a contract personally to execute any work or labour, as well as partners and former partners in firms, will be protected from discrimination in the workplace. The Bill also provides for revision of some of the categories of exclusion which are allowed under the Employment Equality Act. As a result, there will no longer be blanket type exclusions in the case of employment in the Garda Síochána and Prison Service.

I also propose to deal with certain other exclusions currently provided for under sections 26 and 37 of the Employment Equality Act and section 6 of the Equal Status Act, which apply on a broad basis to private households. The current exclusions in this regard, applicable to employment and the provision of accommodation in small premises in which the owner also resides, are not being retained in the context of the race and framework employment directives, and will be replaced with new provisions which relate specifically to access to employment involving the provision of personal services and the provision of accommodation in a person's home, where the private or family life of those concerned is affected. This will balance the protections afforded to one person's right to privacy and another person's right to equal treatment.

The opportunity is also being taken to introduce a number of technical, procedural and other minor amendments to the Employment Equality Act and Equal Status Act, arising from experience gained in the operation of the Acts as well as consultations with relevant interests. These amendments include, among others, clarification of time limits for referral of cases, date of occurrence of discrimination, treatment of cases involving more than one discriminatory ground, enforcement of determinations, decisions and mediated settlements, award of expenses and rules in regard to parallel claims and awards of compensation or redress. I am also pleased to take this opportunity to amend the Equal Status Act in two further important aspects. The first of these will provide certainty in regard to the ability of a parent or representative of a person with an intellectual or psychological disability to act in place of the person concerned seeking redress. The second amendment will enable licensed drivers under the age of 18 to have recourse to the Equal Status Act in cases of unreasonable treatment in relation to motor insurance.

In preparing the legislation as proposed, I have attempted to take account to the fullest extent possible of the views of and proposals from interested parties and expert groups involved. In the area of employment, a wide-ranging consultation process involving Departments, the Equality Authority, the office of the Director of Equality Investigations, the Equality Tribunal, the Labour Court and the social partners has served to elucidate the approach of the legislative proposals in both practical terms and on points of policy within the confines of the directives. This consensus approach to the regulation of employment and social partnership principles is an essential element of good law. A less formal consultation process was also undertaken in regard to the race directive as it affects the Equal Status Act. This included the use of information meetings on the directives organised by the National Consultative Committee on Racism and Interculturalism and other fora and public consultation on the forthcoming national action plan against racism to disseminate interest and awareness among key interest groups. This approach will ensure that Ireland continues to have one of the most socially advanced equality codes in the world and maintains a high profile position in the international fight against discrimination. I acknowledge the valuable contributions made to the Bill in its passage through the Seanad as a result of which a number of substantive amendments have been taken on board.

I will now deal with the main provisions in the Bill. The Bill is divided into three parts as follows. Part 1 contains preliminary and general technical provisions in regard to collective citations, construction and interpretation of the Bill. Part 2 deals with amendments to the Employment Equality Act 1998. Part 3 deals with amendments to the Equal Status Act 2000. Part 2 comprises sections 3 to 43 of the Bill, each of which provides for amendments to the Equality Act, which for convenience I will hereafter refer to as the Act of 1998.

Section 3 amends section 2 of the Act of 1998. It is proposed to amend the definition of "contract of employment" for the purposes of the Act of 1998, to include contracts to personally execute work or services and to deem references under the Act to employees or employers to include the parties to such contracts. It is also proposed to amend the definition of "employee" to include, where the context admits, members or former members of a regulatory body and to exclude, only in so far as access to employment is concerned, persons employed in the provision of personal home services affecting the private or family life of those concerned. The definitions of "discrimination" and "the Director" are being amended to include, in the former case, the issue of an instruction to discriminate, and to replace, in the latter case, "Equality Tribunal" for "Equality Investigations". The scope of the definition of "proceedings" is being widened to include any proceedings, including subsequent proceedings, before a person, body or court dealing with a request or referral under the Act of 1998. For clarity, new definitions in respect of "personal services", "persons" in regard to sections 19, 22, 29 and 31, and "provision" are being inserted.

Section 4 amends section 6 of the Act of 1998. Paragraph (a) provides for the replacement of section 6(1) of the Act of 1998 to include less favourable treatment by imputation or association with another person. This parallels the provision under the Equal Status Act and is one of a number of amendments proposed for greater consistency between the two pieces of legislation. Paragraph (b) provides for a new section 6(2A) of the Act to provide that less favourable treatment on a ground related to pregnancy or maternity leave comes within discrimination on the gender ground. Paragraph (c) provides, in accordance with the framework employment directive, for a new section 6(3) to substantively amend the existing exclusion from discrimination on the age ground in respect of persons less than 18 years or 65 years or over. In the former case, a provision based on the statutory age for school leavers is proposed, and employers may continue to set minimum recruitment ages where these do not exceed 18 years. No upper age threshold is provided for but compulsory retirement ages may continue to be set. A consequential amendment to section 2(1)(b) of the Unfair Dismissals Act 1977 is also provided for.

Section 5 is a technical amendment to section 10(2) of the Act of 1998 which simplifies the text and refers to a characteristic mentioned in any of the discriminatory grounds rather than to a "relevant characteristic" which is no longer defined for the purposes of the Act. Section 6 is a further technical amendment to provide for the deletion of section 12(3) of the Act of 1998 as a result of the provision in section 4 of the Bill removing the age references in section 6(3) of the Act.

Section 7 inserts a new section 13A into the Act of 1998 to include partnerships in its scope. In extending the scope of the Act of 1998 to the self-employed, it is proposed to include in a new section 13A to the Act a specific provision in respect of partners within partnerships, including general partners within limited partnerships. The new provision deems references to employees to include reference to partners and references to employers to include reference to partnerships.

Section 8 inserts a new section 14A which deals with harassment and sexual harassment. Under the directives, a common approach is taken to the treatment of harassment and sexual harassment on any of the discriminatory grounds. It is proposed to reflect this approach by inserting a single new provision on harassment and sexual harassment and removing the present separate provisions in section 23 in respect of gender related sexual harassment and, in section 32, in respect of non-gender related harassment. As a consequence, sections 14 and 21 of the Bill propose the deletion of those sections of the Act.

Section 9 replaces the provision under section 16(3) of the Act of 1998 dealing with the duty of employers and persons engaged in vocational training to accommodate the needs of people with disabilities to enable them to access and participate in employment or training. At present, the requirement on employers is limited to the provision of special treatment or facilities where this gives rise to no more than a nominal cost. Arising from Article 5 of the framework employment directive, it is proposed to extend the requirement to make reasonable accommodation to include a range of "appropriate measures", enumerated but not limited to the measures outlined in paragraph (b) of the section, which shall be taken into account in determining what constitutes a “disproportionate burden” on the employer. A similar amendment in respect of the provision for reasonable accommodation in the Equal Status Act is not proposed as the constitutional barrier remains in place as far as that Act is concerned.

Section 10 amends section 17(2) and (4) of the Act of 1998, under which compliance with specified statutory provisions is excluded from discriminatory action on the grounds of race and age. Having regard to the framework employment directive, it is proposed to replace these provisions. Paragraph (a) amending section 17(2) gives effect to Article 3.2 of the framework employment directive, which excludes from its scope differences of treatment based on nationality, with particular reference to the provisions and conditions relating to the entry into and residence of third country nationals and stateless persons in the member states and to any treatment arising from their legal status. The exclusion will apply only to actions taken in accordance with a statutory condition or provision governing access to employment or occupation. Paragraph (b) takes account of the differences of treatment on the ground of age which are permitted in accordance with Article 6 of the framework employment directive.

Section 11 makes a technical amendment to section 18 of the Act of 1998, arising from the amendment in section 4(b) of the Bill, to section 6 of the Act, allowing a comparator in the case of less favourable treatment on a ground related to pregnancy or maternity to be either male or female.

Section 12 amends section 19 of the 1998 Act on entitlement to equal remuneration. As a result of the new definition of "employee" in section 3 of the Bill, the separate definition of employee in section 19(2) of the Act of 1998 is no longer required and is deleted under paragraph (a). The definition of indirect discrimination on the gender ground in relation to equal remuneration in section 19(4) of the Act is amended under paragraph (b). The amendment takes account of the definition of indirect discrimination under the gender directive and will apply to provisions which are apparently neutral and may be claimed only where the person considers that he or she has experienced discrimination. An employee or trainee will not be required to evidence his or her claim by reference to the proportion of other employees of the same gender who are similarly affected. However, either party may use statistical evidence in relation to a claim. This provision is paralleled, in the non-gender area, in section 19 of the Bill, amending section 29 of the Act.

Section 13 amends section 22 of the Act of 1998, dealing with indirect discrimination on the gender ground other than in relation to remuneration. This amendment parallels the amendment to section 19 of the Act provided for under section 12 of the Bill. The separate reference to the grounds of marital and family status in section 22(4) of the Act is no longer required as a result of this amendment and is being deleted.

Section 15 brings the provision for positive action measures under section 24(1) of the Act of 1998, more closely in line with the provision in this regard under Article 2.8 of the gender directive. Section 16 replaces the provision in section 25 of the Act of 1998 permitting discrimination on the gender ground where a person's gender is an occupational qualification with a more limited provision in respect of access to employment in line with Article 4 of the framework employment directive. The new provision takes account of genuine and determining occupational requirements, legitimate objective and the proportionate requirement. This will provide a higher level of protection from discrimination on the gender ground than heretofore by imposing strict tests on employers in each case where it is proposed to restrict recruitment to one or other gender. As a result of this provision, a technical amendment to section 27 of the Act is provided for in section 18 of the Bill.

Section 17 amends section 26 by deleting subsection (2), which is replaced by a more limited exclusion consequent on the definition of "employee" provided for in section 3. Section 19 replaces the provision in section 29(4) of the Act of 1998 dealing with indirect discrimination in regard to equal remuneration other than on the gender ground. The new subsection (4) applies section 19(4) of the Act to the non-gender grounds.

Section 20 replaces the provision in section 31(1) of the Act of 1998 in relation to indirect discrimination on a ground other than gender and other than in relation to remuneration. In addition, as a result of the amendment to the definition of "employee" which includes members of regulatory bodies, the specific provision in this regard in section 31(2) is being deleted.

Section 22 substitutes a new section for section 33 of the Act of 1998 to bring the provision for positive action measures more closely in line with the provision in this regard under Article 7.1 of the framework employment directive. Section 23 amends section 34 of the Act of 1998 which pertains to savings and exceptions related to family, age or disability. Article 6.2 of the framework employment directive permits discrimination on the age ground in respect of occupational benefits schemes. The amendment to section 34(3) of the Act of 1998 will reflect this principle and delete the exclusions currently permitted on the grounds of age or disability.

Section 24 amends section 35 of the Act of 1998 to clarify that the exemption from discrimination on the disability ground, in section 35(1) of the Act of 1998, in respect of the payment to an employee with a disability of a particular rate of remuneration, applies only where the rate is determined on the grounds that the employee in question has a lesser output of work in a particular period of time when reasonably compared with that of an employee without the disability. Arising from an amendment accepted in the Seanad, provision is included in the section to ensure that it is not permitted to set a rate of pay below the national minimum wage.

In parallel to the proposed amendment to section 25 of the Act of 1998 relating to differences of treatment on the gender ground, section 25 amends the corresponding non-gender provision in section 37(2) of the Act of 1998 to permit difference of treatment based on a characteristic related to a discriminatory ground where it constitutes a genuine and determining occupational requirement and the objective is legitimate and the requirement proportionate. Provision is also made in new subsections (3) and (4) for certain operational requirements applicable to the Garda Síochána and the prison and emergency services. Subsection (5) provides for a continuation of the exemption for the Defence Forces in respect of the age and disability grounds. The exclusion under section 37(5) of the Act in respect of employment in private households is being replaced with the more restricted exclusion by way of the definition of "employee" under section 3 of the Bill.

Section 26 amends section 44(4) of the Act of 1998 to permit remuneration to be paid to members of the Equality Authority. This provision is in keeping with current policy and practice in similar State boards.

Section 27 amends section 67 of the Act of 1998 to clarify a number of technical points relating to solicitors employed by the Equality Authority, including the fact that the normal provisions governing legal privilege and client confidentiality apply. Section 28 amends section 74 of the Act of 1998, substituting new definitions of "equality mediation officer" and "equality officer" in subsection (1) in line with the related amendment under section 28 of the Bill to section 75 of the Act. Subsections (2) and (3) are also amended to extend the range of circumstances which may give rise to victimisation and to clarify the date of referral or appeal of a case to the director, the Labour Court or the Circuit Court in the case of specified provisions in the Act and the Equal Status Act.

Paragraphs (a) to (c) of section 29 make a number of necessary technical amendments to section 75 of the Act of 1998 arising from the proposed renaming of the Office of the Director of Equality Investigations as the Equality Tribunal. Paragraph (d) makes necessary deletions in sections 75(3) and (4) of the Act to remove references to equality officers of the Labour Relations Commission and empowers the director to issue guidelines or guidance notes, appoint persons as equality mediation officers and delegate functions. The inclusion of the provision to empower the director to appoint mediation officers will, for example, facilitate the director in quickly addressing or preventing a backlog building up in the tribunal of cases which may be suitable for fast resolution by means of mediation by the appointment of additional mediation officers on a short-term contract basis from a panel of qualified and experienced non-civil servant mediators. This is highly specialised work and the Civil Service does not have a corps of qualified mediators on which the tribunal might draw on a temporary basis to address short-term surges in caseload.

Section 30 amends section 76(2)(c) of the Act of 1998 to include as material information which may be sought by an employee claiming discrimination, information, other than confidential information, about the scale or resources of the employer’s business. Section 31 proposes a number of amendments to section 77 of the Act of 1998 to provide greater clarity and effectiveness to the operation of the redress procedures under the Act. Paragraph (a) replaces section 77(5) and (6) with new provisions to facilitate late claims to be accepted where there is reasonable cause or where there is misrepresentation by a respondent, and to clarify the relevant date to be applied in a claim of discrimination or victimisation.

Paragraph (b) replaces section 77(9) with a new provision extending the grounds on which a member of the Defence Forces may seek redress under this section of the Act to include all the discriminatory grounds other than the grounds of age and disability. Paragraph (c) adds new provisions to the section permitting parties to any proceedings under the Act to be represented and deals with appeals in respect of decisions to accept or refuse late claims.

Section 32 inserts a new section 77A in the Act of 1998 dealing with dismissal of claims. This will allow the director or the Labour Court to dismiss claims he or she considers to have been made in bad faith or to be frivolous, vexatious, misconceived or trivial. It is common to assign a discretionary power of this nature to an investigative or complaints body, and the existing similar provision in the Equal Status Act will be aligned with the new section 77A under section 53 of the Bill.

Section 33 is a technical amendment to section 78(7) of the Act of 1998 to stipulate that an application for a resumption of a hearing shall be in writing and, where a notice has been issued by an equality mediation officer, to remove the requirement that an application for exemption be accompanied by a copy of that notice.

Section 34 amends section 79 which deals with investigation by the director or the Labour Court. The amendment proposed in paragraph (a) will introduce an important technical change to the operation of section 79 of the Act of 1998 which will facilitate a more streamlined approach to the investigation and determination of individual sets of circumstances where more than one discriminatory ground is involved. As a result, where a set of circumstances gives rise to more than one claim of discrimination or to one or more claims of discrimination and a claim of victimisation, they shall be investigated as a single case. It will continue to be the case that a decision will be made in respect of each of the claims. A minor textual amendment is also proposed under paragraph (b).

Section 35 adds a number of new provisions to section 82 of the Act of 1998, including a new provision at subsection (6) which further addresses the situation where one set of circumstances leads to claims of discrimination on more than one discriminatory ground. In addition to investigating such claims as a single case, compensation will be awarded on the basis of a single case. It is also considered appropriate to exclude the Equality Authority, as a statutorily funded agency, from awards of compensation and to proscribe the taking of a case under both the Act of 1998 and the Equal Status Act in respect of the same act of victimisation.

Section 36 inserts a new section 85A regarding burden of proof into the Act of 1998. This takes account of Article 8 of the race directive and Article 10 of the framework employment directive, the effect of which is to place the burden of proof on the respondent where a prima facie case of discrimination has been established by the complainant. It is proposed that the provision will be applied to all the discriminatory grounds. This principle is already applicable to cases of discrimination based on sex as a result of Directive 97/80/EC, implemented by SI 337 of 2001.

Section 37 will provide, in section 91 of the Act of 1998, that the respondent in a mediated settlement may apply for an order to enforce the terms of a settlement. It is also proposed that, where an enforcement application is made by the Equality Authority on behalf of a complainant, the court may award costs to the authority.

Section 38 is a technical amendment to section 98(1)(b) of the Act of 1998 to align the reference therein to section 74(2) of the Act as a result of the amendment to that section provided for in section 28 of the Bill.

Section 39 inserts a new section 99A in the Act of 1998 to empower the Labour Court or the director to order a person obstructing or impeding an investigation or appeal to pay travelling and other expenses reasonably incurred by persons in connection with the investigation or appeal, excluding expenses in respect of representation.

Section 40 amends section 101 of the Act regarding alternative avenues of redress and is intended to remove the present impediment to provision of redress in unfair dismissal cases initiated in the Labour Court. As a result of the amendment proposed to section 101(5) of the Act of 1998, the Labour Court may, in appropriate cases, direct that an alternative avenue of redress may be pursued.

Section 41 inserts a new section 101A in the Act of 1998 to ensure that, where a person who has been dismissed or constructively dismissed seeks redress for an act of discrimination or victimisation from the director and the Labour Court, redress may not be awarded by both for that act. This principle will also be applied in the case of contraventions of the Protection of Employees (Part-Time) Act 2001, and the Protection of Employees (Fixed-Term Work) Act 2003.

Section 42 is a technical amendment to section 102(1) of the Act of 1998 to add cases referred to the director under the Anti-Discrimination (Pay) Act 1974 or the Employment Equality Act 1977 to the list of references which may, after one year of referral, be struck out by the director where they are no longer being pursued by complainants. Section 43 is a technical amendment to section 105, paragraph (a), to replace the reference to “Director of Equality Investigations” with “Director of the Equality Tribunal”, as proposed under section 29 of the Bill.

Part 3 comprises sections 44 to 60, inclusive, amending the Equal Status Act 2000, hereafter referred to as the Act of 2000. Section 44 widens the scope of the definition of "proceedings" to include any proceedings, including subsequent proceedings, before a person, body or court dealing with a request or referral under the Act of 2000. It also provides for the definition of a new term, "provision", meaning a term in a contract or a requirement, criterion, practice, regime, policy or condition affecting a person. It also helps to clarify the relevant date to be applied in relation to a claim of prohibited conduct.

Section 45 amends section 3(1) of the Act of 2000 by inserting a new definition of indirect discrimination to reflect the more advanced definition in the race directive. The existing subsection (3) provides generally that treating a person who has not attained the age of 18 years less favourably or more favourably than another, whatever that person's age, shall not be regarded as discrimination on the age ground. It is compulsory for licensed drivers under the age of 18 to have motor insurance and it is reasonable, therefore, that such drivers be protected from unreasonable differences in treatment. In this regard, it is proposed to amend section 3(b) of the Act of 2000 to enable licensed drivers under the age of 18 to have recourse to the Act of 2000 in cases of unreasonable treatment.

A new subsection provides that statistics are admissible for the purpose of determining whether indirect discrimination has occurred or not. This is being applied in accordance with recital 15 to the race directive, which provides that, in accordance with the rules of national law or practice, such rules may provide, in particular, for indirect discrimination to be established by any means, including on the basis of statistical evidence.

Section 46 provides for a very narrow exemption excluding the provision of accommodation by a person in a part, other than a separate and self-contained part, of the person's home, where the provision of the accommodation affects the person's private life or that of any other person residing in the home.

Section 47 amends section 7 of the Act of 2000 to provide that the Minister for Education and Science does not discriminate where, in the exercise of his or her powers, he or she prescribes requirements for the making of grants for the purpose of assisting persons to attend, or continue to attend, an educational establishment providing higher or further education which confine the making of such grants to persons who are nationals of a member state of the European Union or allow for difference of treatment between those who are nationals of member states and those who are not.

Section 48 redefines harassment as any form of unwanted conduct related to any of the discriminatory grounds, and defines sexual harassment as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature. The section also provides that a person's rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person. These changes are to apply the newer definitions set out in the relevant directive.

Section 49 provides for an exclusion from the provisions of the Act of 2000 of actions taken by public authorities relating to specified persons and governing or arising from their entry into and residence in the State, as permitted under Article 3 of the race directive. The Government is of the view that, as far as possible, discrimination on the grounds of nationality should not be permitted. I propose, therefore, that section 14 be amended to provide that, save in issues of asylum and immigration and differences of treatment in the provision of public services to asylum seekers and those not lawfully resident in the State, the Act of 2000 will apply to differences of treatment based on nationality.

Section 50 extends the definition of complainant to allow a parent or guardian of a complainant with an intellectual or psychological disability to act in place of the person concerned. Section 51 proposes a number of amendments to section 21 of the Act of 2000 to provide greater clarity and effectiveness to the operation of the redress procedures under the Act. Paragraph (a) is a technical amendment dealing with notification of the respondent. Paragraphs (b) to (f) make further technical amendments to facilitate the acceptance of late claims where there is reasonable cause or there has been misrepresentation by a respondent and to clarify the relevant date to be applied in a claim of prohibited conduct.

Section 52 inserts a new provision, section 21A, in the Act of 2000 to provide clarification that the date on which a claim or appeal is lodged is the date it is received by the director or Circuit Court. Section 53 provides for an amendment that allows for a method of appeal against a decision of the director to dismiss a claim because it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

Section 54 is a technical amendment to section 24(6) of the Act of 2000 to stipulate that an application for a resumption of a hearing shall be in writing and, where a notice has been issued by an equality mediation officer, to remove the requirement that the resumption request be accompanied by a copy of the notice. The amendment proposed in section 55(a) will introduce a technical change to the operation of section 25 of the Act of 2000 to keep in line with amendments under the Employment Equality Act 1998. Where a set of circumstances gives rise to more than one claim of discrimination across more than one of the grounds, they shall be investigated as one case and, where one or more claims of prohibited conduct include a claim on the ground of victimisation, they may be investigated as a single case. It will continue to be the case that a decision shall be made in respect of each of the claims. A minor textual amendment is also proposed under paragraph (b).

Section 56 proposes the insertion of a new section 25A in the Act of 2000 to provide that any party to proceedings under section 24 or section 25 of the Act may be represented by an individual or body authorised by that party to represent him or her in the proceedings. Section 57 includes a minor technical amendment proposed under paragraph (a). Paragraph (b) adds a number of new provisions to section 27 of the Act of 2000, including a new provision at section 27(3) of the Act, which also deals with the issue addressed in section 55 of the Bill where one set of circumstances involves claims of discrimination on more than one discriminatory ground. In addition to investigating such claims as a single case, compensation will be awarded on the basis of a single case. It is also considered appropriate to exclude the Equality Authority, as a statutorily funded agency, from awards of compensation.

Section 58 will provide, in section 31 of the Act of 2000, that the respondent in a mediated settlement may apply for an order to enforce the terms of a settlement and that, where such an application is made by the Equality Authority, the court may award costs to the authority. Section 59 inserts a new section 37A in the Act of 2000 to empower the director to order a person obstructing or impeding an investigation or appeal to pay travelling and other expenses reasonably incurred by persons in connection with the investigation or appeal excluding expenses in respect of representation.

Section 60, which inserts a new section 38A in the Act of 2000, takes account of Article 8 of race directive, the effect of which is to place the burden of proof on the respondent where a prima facie case of discrimination has been established by the complainant. It is proposed that the provision will be applied to all nine discriminatory grounds.

I believe that the progressive and comprehensive nature of the legal and administrative framework for equality which the Government introduced in its previous term of office is endorsed by the legislation before the House. The prohibition of discrimination in both the workplace and the area of service provision on the nine grounds specified in the Employment Equality Act 1998 and the Equal Status Act 2000 continues to provide employees and individual citizens of this country with greater protection than they could be sure of securing on the basis of EU citizenship. The proposed amendments to the 1998 and 2000 Acts are welcome extensions to our existing provisions and can be accommodated without tension or difficulty. Implementation of the race, gender and framework employment directives provides a welcome opportunity to review and expand the existing provisions in these areas, and to do so in the broadest possible way in terms of the grounds and circumstances in which discrimination is prohibited.

I look forward to contributions by Deputies on this important legislation and I commend the Bill to the House.

This Bill aims to transpose three EU directives, the race directive, the framework employment directive and the gender equal treatment directive, and to amend the Employment Equality Act and the Equal Status Act. It is an amending Bill which makes a series of textual amendments. It has been posed as technical legislation. However, it is more than that, although every Bill is technical in nature. It was put forward as a Bill to transpose some EU directives into Irish law, but it is quite comprehensive.

We increasingly see a European influence on our legislation in this area. Increasingly, the impetus for legislative change is coming from Europe and not domestically. To some extent, it is an inherent part of our membership of the EU that this happens. However, it is regrettable that in the area of equality the Government, in some cases, has taken a back seat. It has not been the driving force behind change in this area. We have Europe to thank for many of the progressive developments in this area.

I read the contribution by the Government representative in the Seanad. I noted one sentence which read, as Members of the House will be aware, Ireland is already to the fore in its promotion and protection of the principles of equality and freedom from discrimination thanks to the quality, effectiveness and far-sightedness of our existing equality legislation. However, it seems that Europe is to the fore. Having regard to that quote, I must ask according to whom is that the case.

The Equality Coalition put together a submission on this Bill and made a presentation on it yesterday. It put a good deal of work into its submission which is quite detailed. Part of the reason for this is that it was given some time to scrutinise the detail of the Bill as a result of its being delayed for a few weeks. It was a good submission. In the context of transposing directives, what was billed and many perceived as a technical Bill, will, according to the Equality Coalition, reduce protection from discrimination for vulnerable groups. That is a weighty and profound comment for an umbrella group of many of the vulnerable groups in the country. We have gone from a technical Bill to something else.

The Equality Coalition states that a fundamental weakness is apparent in the existing Acts in that their provisions are only triggered if an individual is willing to take a case against an employer or service provider. It makes the case that several of our European counterparts have included statutory duties to promote equality, the benefit of which is obvious in that it prevents discrimination from occurring in the first instance and shifts the onus on compliance from individuals to the source of the problem which is, in many cases, to do with the practices of the employers and the service providers.

As I understand it, the central criticism of the Equality Coalition is that the Government has failed to oblige employers and service providers to take proactive steps to address these inequalities. It also claims that the Government will be able to discriminate against asylum seekers and certain migrants in respect of any aspect of policy or provision in this Bill. Again, that is a weighty claim to which I will return.

A colleague of mine, who is a Member of the Seanad, said that the Government is reactionary in regard to equality legislation. The Minister of State's response in the Seanad was spurious and exaggerated. He stated that in any of the trips he had made to Europe in the short period since we assumed the Presidency, he noted that our EU colleagues are astounded at the advances Ireland has made on equality legislation. I would like to know who these boffins are in Brussels who are in such awe of our brilliance in this area. It sounds like the comments made by John Kerry some weeks ago when he referred to foreign leaders as having said to him that he must beat Bush — he had to beat Bush. When he was asked which foreign leaders had said this, he could not answer. I would like to know who are these EU colleagues who are so astounded by our record in this area.

The Minister of State will tell us in his reply.

Of course he will.

Is the Deputy doubting my word?

In his speech to the Seanad, the Minister of State claimed to have consulted widely in this area.

That is true.

He stated: "In preparing the legislation, I have consulted widely." The Equality Coalition would differ with the Minister of State on that. It makes that claim that the legislation was introduced with little publicity and with no public consultation with groups representing marginalised groups. It goes on to state that, although the Government consulted the Equality Authority, to which the Minister of State referred, and the National Consultative Committee on Racism and Interculturalism, most of their recommendations were ignored. The Minister of State referred to the NCCRI again today. He referred to information meetings on the directives organised by the NCCRI and other fora. However, they make the claim that it was not as widespread, detailed and in depth as has been made out and that many of the recommendations were entirely ignored. The notion that the Minister of State went out of his way to attend to some of these groups as he suggests is under question.

The area covered by this Bill requires sensitivity, balance, a willingness to avoid politicisation and, more importantly, a willingness to listen to every group and take on board their concerns because we are dealing with the most vulnerable in society. Those are qualities which are needed when dealing with this legislation. The Equality Authority also recommended to the Government that the structure of the Employment Equality Act be simplified, clarified and rationalised because it felt the legislation needed to be written in plain language for anyone interested or concerned with discrimination issues. Some of this Bill is technical but it will be difficult to understand for anyone without some legal training.

The Law Reform Commission recommended that where a statute amends a previous provision, the entire text of the amended provision should be set out. It pointed out that since the law ultimately governs ordinary citizens, it should be readily accessible and comprehensive to the layperson. While I have to support some of these provisions, as all parties will, there are some which deserve scrutiny because this is not just a technical Bill. The level of consultation which has taken place in this respect also deserves scrutiny.

Section 3 of the Equality Bill amends section 2 of the Employment Equality Acts. The danger here is that the proposed amendment includes a blanket provision which could enable employers to discriminate against prospective employees who are employing for work in a person's home for the provision of personal services. There is criticism of this exemption because most discrimination in employment takes place at the initial recruitment stage. The charge here is that this is in breach of EU law.

Section 9 amends section 16 of the Employment Acts in respect of the nature and extent of employers' duties to reasonably accommodate people with disabilities. Such measures need not be undertaken where there would impose a disproportionate burden on the employer. The real difficulty is that employers can take a host of factors into account when assessing "disproportionate burden". The list is pretty extensive and includes the financial and other costs entailed, the scale and financial resources of the employer's business, the number of persons who would benefit from the measures, any disruption which would be caused by them, the nature of any benefit or detriment that would accrue to any person likely to be affected by them, the possibility of obtaining public funding or other assistance and any benefit that would accrue to the employer. Of these factors, only the first and sixth are mentioned in the recitals to the framework directive.

Section 47 amends section 7 of the Equal Status Act in respect of educational establishments. The effects of this section will be to prevent migrant workers and long-term migrants from securing higher education grants. These people are here legally and this provision affects a whole sector of society which would effectively be excluded from further and higher education grants.

Section 49 amends section 14 of the Equal Status Act. A serious concern has arisen in this regard because it would remove protection of the Equal Status Act from persons who are asylum seekers, former asylum seekers and persons with applications for leave to remain.

This would allow central and local government as well as public authorities and other statutory agencies to discriminate against this category of person with regard to certain measures and activities. Some people believe this to be contrary to the convention on the rights of the child of 1989, by which all children are protected from discrimination, irrespective of their legal status or the nationality or legal status of their parents. The European Convention on Human Rights is now part of Irish legislation.

The legislation revises some of the categories of exclusion allowed under the Employment Equality Act, specifically the very wide-ranging exclusions affecting the Garda Síochána. The upper age limit for entry into the Garda Síochána is now 26. Section 37 of the Employment Equality Act provides that those parts of the Act relating to discrimination on the ground of age do not apply to employment in the Garda Síochána. This should not be the case and it is not the practice in other European countries. The upper age limit in the United Kingdom is 52, in Germany it is 31, in Portugal 30, in Denmark 27, in Luxembourg 45 and in Austria 40. Sweden, Finland and Spain do not have an upper age limit. Most police services in the United States do not have an age restriction. Does this legislation put an end to the upper age limit for entry into the Garda? Will people over the age of 26 be allowed to join the Garda? In answer to all my parliamentary questions in the past year the Minister said this matter would be dealt with in this legislation. Can the Minister of State clarify this matter?

I have been contacted by the Irish National Teachers' Organisation with regard to section 37(1)(b) of the Employment Equality Act. The INTO and others have claimed that this paragraph is unspecific and could, inadvertently, allow for discrimination in the areas of marital status, race, disability, sexual orientation or age.

I welcome the inclusion of the motor insurance measure in the Bill. The Minister of State has referred to cases of unreasonable treatment of young drivers who were refused a quote by insurance companies. It is also unreasonable to expect young drivers to find €3,500 every year to pay their insurance premium.

I withhold support for the Bill until some of these issues are addressed. The submission from the Equality Coalition should be examined. It contains some serious claims, particularly with regard to migrant workers and asylum seekers. I would like to hear the Minister of State clarify these issues.

The Government claims that there has been widespread consultation and deliberation with all concerned groups. If that claim is to have any credibility, attention must be given to these concerns as the Bill proceeds through the Oireachtas. Some concerned groups claim that the Bill is regressive, contrary to the Government's claim that this is totally progressive legislation.

I have never read a Bill quite like the Equality Bill 2004. It consists of a series of amendments from start to finish. The Bill seeks to amend the Equality Act 1998, the Equal Status Act 2000 and various Council directives and regulations. Why did the Minister of State not draft a consolidation Bill to collect, enunciate and articulate the principles and practices of equality which now pertain to Irish society under the law, and present a new equality framework and code? Instead of producing a coherent text in a consolidation Bill, the Minister has presented a patchwork of provisions. The Bill is a lawyer's dream and a citizen's nightmare. It is the most confused and confusing Bill imaginable. This is not good enough.

The Minister of State's private legislation factory, the Department of Justice, Equality and Law Reform, is constantly producing legislation. Between 30% and 40% of all the legislation which comes to the House comes from that Department. It is about time someone in the Department read the recommendations of the Law Reform Commission, which are that legislation should be written in an accessible and intelligible form — in plain English.

This Bill is another act of discrimination. It discriminates against the ordinary citizen who is entitled to access matters dealing with equality and discrimination in an intelligible form. The only way to understand this legislation is to have it explained by a lawyer. That is a new form of discrimination. We have added a tenth form of discrimination to the existing nine. This legislation should have gone back to the drawing board before being presented to the Oireachtas. Imagine the hardship imposed on an ordinary person who reads this Bill and sees that almost every section is an amendment to a section in earlier legislation. To understand each section one must find the section to be amended in the original legislation. How can anyone produce a Bill like this and expect it to be accessible to the ordinary citizen? The Minister of State should replace it with a coherent text which we can all read and understand.

Despite the format of the Bill, some of the substance of the Bill is welcome, some sections do not go far enough and some raise serious concerns. Most disturbing is the fear that some of the Bill's proposals could be used to water down existing equality legislation. We could be regressing instead of progressing in a number of areas. This cannot be allowed to happen, which is why changes must be made to the Bill. This is a worrying trait in the Government and should not be tolerated in legislation related to equality. We have seen legislation emanating from the Department of Justice, Equality and Law Reform which is rowing back the concessions and entitlements for asylum seekers and Travellers that have been hard won in the past, and this legislation does some of the same.

It was the French novelist Balzac who stated, "Equality may perhaps be a right, but no power on earth can ever turn it into a fact". He penned that quotation in the 18th century and it is still relevant in the 21st century. Despite years of campaigning, books being written and legislation produced, discrimination in all its ugly forms is still widespread. It is ironic that despite debating a Bill on equality, there are sections of legislation which are at odds with other legislation, all of which relate to the Equality Bill 2004. The basic aim of this legislation should be to ensure the equal protection of every single individual through a single legal code. However, there are clashes between some of the proposals contained in the Bill and other legislation which cannot exist together.

Policies contained within EU directives are only the minimum standards to be adopted by a member state, and only define the general framework within a policy area. EU directives should not encourage discriminatory legislation. However, it must be noted that the Government has dragged its heels on implementing the EU directive on anti-discrimination at work which was agreed in November 2000. This directive prohibits all forms of direct and indirect discrimination in employment or occupation. The Government agreed to put this legislation on to the Irish Statute Book by December 2003, but of course, nothing happened. My colleague, Proinsias De Rossa MEP, raised this issue recently and has formally called on the European Commission to begin the process of initiating legal action through the European Court of Justice against the Minister, Deputy McDowell, for this failure.

He needs to draw attention to himself as there is an election approaching. The other lady is getting all the publicity.

He would not have the opportunity if it was not there for him.

We did not hear one word from him in the past five years.

In all decency, the Minister should deprive him of that opportunity. This is not the only directive on equality issues which has been ignored by the Government. The EU directive on race discrimination was to be implemented into Irish law by July 2003 — I must remind Mr. De Rossa of that one as well. The only action taken by the Government thus far has been to send a copy of this Equality Bill to the Commission. Mr. De Rossa asked the Commission if it had been in contact with the Irish Government over its failure to implement the equal treatment between persons without racial and ethnic discrimination in employment and society. He was informed that the Government had notified the Commission and that changes had to be made to the Employment Equality Act 1998 and the Equal Status Act 2000 to ensure all compliance with anti-discrimination directives. This is not enough for the Commission, which has formally initiated infringement proceedings against Ireland for its failure to act on the directives. The Minister might make a reference to that when he sums up.

The Minister referred in glowing terms to the National Consultative Committee on Racism and Interculturalism, the NCCRI, claiming to have consulted it. However, the NCCRI claimed last year that the delay was unacceptable. It claimed that implementing the directive would greatly increase the scope and level of protection covered by the Equal Status Act 2000. As Deputy Deasy stated, the Minister honoured the consultation with the NCCRI more in the breach than in accepting its recommendation. It is one thing to consult but another thing to act on consultation in a positive fashion.

Since 1977, gender discrimination in the workplace has been made illegal except under exceptional circumstances. These circumstances include the appointment of a female ambassador to Iran, a country that would not have accepted a woman in that position. To forbid a woman from occupying this post was lawful under this law. However, there is now a section in this Bill which states that someone may be refused a job due to gender when justified by occupation. Is that not an unusual criteria to introduce in the Bill? This is completely wrong and is entirely out of place within the confines of an equality Bill. This section is out of sync with EU directives and will be opposed by the Labour Party.

The anomalies identified by the Labour Party include those in the Equality Bill 2004 and the social welfare provisions Bill. This concerns equality and the terms and conditions of pensions. This is based on the original Employment Equality Act 1998 and does not reflect provisions made in the Equality Bill 2004. If passed, the two Bills will contradict each other and the codes of law. This must be amended on Committee Stage when the Minister should amend the social welfare provisions Bill to reflect the Equality Bill 2004.

As things currently stand, most equality cases go to the Equality Tribunal and the Labour Court because of the requirements of European law on foot of Marshall II. Under the law, someone pursuing a case can take it to the Circuit Court which is provided in the Equal Employers Act 1998. Since then, there have been several directives in EU law apart from gender and including race. Under Marshall II the Labour Party believes that someone who brings a claim on race discrimination should have the right to go to the Circuit Court, not because this is the only way forward, but rather if it is not done the Bill will be contrary to EU law. It will also mean that a sanction with a ceiling of IR£10,000 is ridiculously low in certain circumstances. Access to the Circuit Court should also mean that the existing ceiling should be replaced with one that is proportionate to the offence.

It is now widely recognised that the model used in Ireland relies on people who realise that they are suffering discrimination and are willing to take a case against their employer. Like other European countries, we should include hard-hitting measures in this legislation to prevent discrimination occurring in the first place. This is where much work needs to be done as it is missing in the legislation. What are the obligations of the State to ensure that there is compliance in social and educational terms and in access to goods and services?

Section 37 will have to be repealed. It seeks to confine the positions where religion is a genuine occupational requirement. Deputy Deasy referred to this as something with which the INTO has concerns. The Labour Party believes that this will give church controlled schools the right to discriminate on the basis of the categories outlawed in other circumstances, namely, categories such as race, religion, marital status, family and parental status, sexual orientation and so on. We cannot approve legislation which gives a carte blanche for discrimination in our schools. It is a backward step in equality legislation.

Section 50, which seeks to reduce the protection to members of the Traveller community, should be removed entirely from this legislation. This is one of the sections which would dilute the equality protection granted to sections of our community on the basis of race. For example, it would allow hotels to discriminate against individuals where the hotels believe "the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property, at or in the vicinity of the place in which the goods or services are being sought". This means that the onus is on the customer to prove his or her good character, which is clearly discriminatory and leaves the matter open to an incredible degree of subjectivity and abuse.

Section 9 of the Bill will go some way towards ensuring that employers take effective and practical measures to adapt the workplace to make reasonable accommodation for people with disabilities. That means that the large percentage of companies which have so far ignored their responsibilities and obligations to workers with disabilities, will now have to be more accommodating to people with disabilities or face a financial fine. There is now a legal requirement on them to make adaptations and to provide specialist equipment in the workplace. However, more needs to be done to ensure that happens. The phrase "disproportionate burden" is a caveat which undermines the strength of the proposals in this section. The danger is that it may be easy to get around them.

Up to now only 10% of Irish companies have voluntarily carried out this work. That has had a lot to do with the fact that the current legislation states that facilities only have to be provided at a nominal cost to the employer. That has allowed employers to escape their responsibilities. That get-out clause has been used by companies to do nothing. I welcome the fact that the legislation tightens up that area. We must ensure the Bill brings about higher compliance. In addition, many employers are completely unaware that grants are available to carry out work to make their premises more accessible to workers with disabilities. Recent research indicates that eight out of ten employers do not know about the workplace equipment or adaptation grant. Many of these employers are unaware of the many other supports available to them, such as the employment support scheme, the employee retraining grants, the personal reader grant, the job interview/interpreter grant and the employers' PRSI exemption scheme for recruiting workers with disabilities. It is important that a full and detailed information campaign is undertaken without delay to highlight the grants and facilities available to employers. That is more important than passing legislation.

Concerns about this section have been raised by the Equality Coalition which consists of 26 organisations. It briefed us yesterday about its views on what is appropriate in the legislation, what is missing from it and what needs to be amended. It came up with 46 amendments or recommendations which should be introduced. There has not been widespread consultation on this issue. One of the concerns is that employers under this legislation will be able to take into consideration the number of persons who will benefit from these measures. The coalition further believes that the rights of disabled people should not be considered in the way they are. To illustrate that point, it suggests that this measure should not be used to promote equality between men and women. If an employer has 20 staff, two of whom are women, it is not acceptable not to provide a women's toilet because only two people would use it. It is not tolerable, therefore, that this argument should be used against people with disabilities.

One disturbing aspect of one of the more positive sections of the Bill is the proposed permission granted to employers to pay people with disabilities less per hour than their so-called able bodied colleagues on the grounds that their input is less. Despite reasonable tests being employed, this is clearly open to abuse. This is another section of the Bill which the Labour Party will oppose. It means that while the Bill affords some rights to particular sections of our society, it takes away rights which were fought hard for from other sections.

When talking about equality, it is important to highlight the fact that despite years of legislation, women are still earning less than men. CSO figures published in June 2002 reveal a continuing significant gender pay gap. The national figure is 28.4%. In June 2002 the average hourly rate for male industrial workers was €13.77, while it was only €9.86 for women. It is estimated that this gap can mean a loss of more than €0.25 million during a woman's working life compared to her male counterpart. Women are often overrepresented in the low-paid sectors and have less opportunity to pay for ongoing education and training, which will limit the opportunities open to them. This situation is set to continue until the issue of child care is properly dealt with once and for all. The ICTU has found that 72% of women who work part time do so because of child care costs. That is an incredible figure. Such women, who should get the full protection of the State because it encourages them to return to the workplace, are left with the full burden of child care costs and responsibilities.

The constitutional entitlement to pre-school education has not been properly addressed in this or other legislation. The Constitution states that the State will provide primary education. Primary education is not what we describe as national school education, but the primary education of the child, which begins before the age of four when the child goes to primary school. The State does not make any constitutional provision for pre-school education, which is primary education. Surely that is a right and an entitlement which is guaranteed under the Constitution. The most basic form of discrimination against women is in the areas of child care and pre-school education. Women must deal with the entire burden of costs without any State assistance, despite the State's guarantee in the Constitution to ensure that the children of the nation receive primary education.

The ESRI also found during 2002 that single women earn 5% less than single men, married women earn 90% less than married men and single women earn 25% less than married men. We are way down the line in terms of gender discrimination. This pay gap is wider in the private sector than the public sector and between men and women who have either no or low educational qualifications. The gap is narrower for those with third level qualifications, which highlights the importance of being able to access educational opportunities. There is also discrimination against non-nationals in higher education. One reason given for the significant pay gap is the fact that women are more likely to have breaks in their working lives, such as maternity leave, which leaves gaps in their employment history and takes its toll on long-service awards, pay bonuses, promotions and overtime. That has an impact on women's lives throughout their careers. These are all equality issues.

In addition, the ESRI found that women dominate the low-paid, part-time sector for a number of reasons. Sometimes it is because of lower qualifications and the need to balance their home and working lives, as well as child care and pre-school costs. This problem can be addressed. However, the Government has continually attacked and eroded the measures which address this disparity. It cut the CE scheme; it introduced the savage 16 cutbacks in the Department of Social and Family Affairs, which we discussed last night; it abolished the crèche supplement; it refused lone parents the transitional half-way social welfare payment when they move from social welfare back to the workplace; it extended the period of time someone must be on social welfare before he or she qualifies for the back to education allowance; and it discontinued the entitlement to the half payment of disability and unemployment benefit where the recipient is in receipt of a widow's or widower's pension or the one-parent family payment. These are hidden incremental discriminations which have been introduced gradually and stealthily in recent years by the Government.

Questions must also be asked about the role of women in management positions. Let us take the example of the nursing profession which has been dominated by women for many years. Despite only 9% of nurses being male, men still make up 50% of senior nursing posts. While 40% of psychiatric nurses are male, men held approximately 88% of the senior management posts. Within the teaching profession, which has been dominated by women for generations, there has been a consistent failure by school boards to appoint women to management positions. There is something wrong with this picture. Positive action must be taken to address this glaring imbalance and proposals must be brought forward to increase the number of appointments of women to management positions at all levels.

The Equality Coalition expressed its concern about a range of areas. Will the Minister indicate if he has met the Equality Commission and if he has looked at the 46 recommendations it made? Chapter 6 of the Good Friday Agreement requires that the Irish Government ensure at least equivalent protection of human rights as will prevail in Northern Ireland. This protection extends to protection against discrimination. What steps has the Minister taken to ensure we are not out of line with the commitments under the Good Friday Agreement in this respect?

The Minister did not mention if he had consulted the Irish Human Rights Commission. The establishment of that body was one of the results of the Good Friday Agreement. It was established to ensure that a high level of human rights pertains in this jurisdiction while its counterpart in Northern Ireland ensures that a corresponding level of human rights pertains in Northern Ireland. The Minister does not mention consulting the commission even though it was set up to proof legislation on human rights and equality.

There was an article in The Irish Times yesterday by Professor William Binchy who is a member of the Irish Human Rights Commission. He took grave exception to the Minister’s proposals on changing entitlement to Irish citizenship through a constitutional referendum. Major exception has been taken by the Irish Human Rights Commission to almost all legislation from the Department of Justice, Equality and Law Reform. The Minister has either not consulted the commission, turned a blind eye to it or simply disregarded its comments. It is one thing to do that with a non-governmental organisation but another to do so with a body that has been established on a statutory basis. Perhaps the Minister will explain what role the commission had in the consultative process prior to drafting this legislation. He said it had been a broad consultative process.

A range of issues will have to be dealt with on Committee Stage. The Bill does not fully transpose the obligations under the European Union directives as it should. In many cases, the Bill will reduce protection for some vulnerable groups. It allows discrimination by an employer, for example, in the provision of personal services within the home. This is a major area of employment, especially for women. The discrimination permitted in the legislation is too obvious.

There must be a tightening of the phrase "disproportionate burden on the employer" as a ground for not making provision for the disabled in the workplace. It is too vague, ambiguous and open to abuse. The sanctions are too lenient. The ceiling of €10,000 is ineffective in many cases against a large employer. Some anti-discrimination cases should, as the directive suggests, be allowed to go to the Circuit Court.

Section 47 allows the Minister for Education and Science to discriminate on the basis of race in providing further and higher education grants. That rolls back the Equality Tribunal decision of 2003 which demanded that the Minister extend the availability of grants in that respect. The Minister has contracted it. The Minister suggested that he will introduce an amendment in respect of section 49, which allows statutory bodies, local authorities and the Government to discriminate against non-nationals and asylum seekers in certain areas. I will wait to see the Minister's amendment.

It would be useful if greater emphasis were put on the obligations of the State and State agencies with regard to their functions in providing social protection and protection in the areas of education and grants, the workplace and access to goods and services. These should be presented as formal obligations. These matters are missing from the legislation.

Much of the Bill is welcome but the format in which it is presented is unacceptable. It is time that the people drafting the Department's legislation — there must be a bevy of them given the amount of legislation that has been produced — give consideration to producing legislation in reasonably intelligible and accessible English. This Bill is nothing of the sort. I hope we will be able to amend it to some extent on Committee Stage.

I wish to share my time with Deputy Ó Snodaigh and Deputy Cuffe. I welcome this debate. It is important that we have a wide ranging and open debate on equality issues. If we are serious parliamentarians, we must agree on one political and social objective, that is, equal treatment of persons regardless of racial or ethnic origin or of disability or gender. That is the bottom line before dealing with the detail of the legislation.

Equality is a broad issue and this Bill allows us to examine many aspects of it. The problem of racism arises when discussing matters relating to racial or ethnic origin. Sadly, it is now emerging in Irish society and in Europe generally. When discussing this issue, it is important that politicians, regardless of where they sit in the House, show positive leadership and reflect the views in the debate in a strong and objective manner. In recent days, however, with the debate about the possibility of holding the referendum on the same day as the elections, there has been a great deal of concern about this issue being raised again. On a recent walkabout in my constituency a few days after the referendum announcement, I was called all sorts of names and given much racist abuse because of my support for immigrants and asylum seekers in this country. I urge all Deputies to be calm and cautious, especially in their use of language. Ministers, especially the Minister for Justice, Equality and Law Reform, should be cool and use common sense in the debate.

We must be learn about the reality of the situation. There is constant reference to the maternity hospitals but the reality is that 2% of the births last year in the Coombe Hospital were to non-nationals. The broader figure of 22% is often used for the number of such births in other hospitals. The vast majority of the births in this 22% are to non-nationals who are either working or living legally in Ireland. We should bury these myths when discussing this Bill. It is most important.

I broadly welcome the Bill. It will make significant changes to Ireland's equality framework and amend provisions in the Equal Status Act 2000 and the Employment Equality Act 1998. The main purpose of the Bill is to implement new principles from European Union Council directives on equal treatment, on race, employment and gender. I fully support the debate on the legislation. However, I do not believe the Bill fully implements obligations under the EU directives. Further, what many perceive as technical legislation will reduce protection from discrimination for vulnerable groups. The Equality Tribunal investigates and decides on anti-discrimination cases. However, this Bill rolls back decisions the Equality Tribunal made.

The Equality Authority has recognised that the Bill represents an opportunity to enhance Ireland's equality legislation. However, the Government has chosen to ignore most of the recommendations. Many people, especially those in the education sector and the trade unions, have concerns about section 37(1) of the Employment Equality Act 1998 and have sought its deletion from the Act. The Bill as initiated does not do so. Amendments will be tabled on this issue. I will seek to have the application of section 37(1) confined to positions where religion is a general occupational requirement and to make it clear that the only discrimination allowed under section 37(1) is on the grounds of religion and that discrimination is not permitted on other grounds under the section. My wording in the proposed amendments reflects the terms of the European directives now being transposed into Irish law. These amendments also have the support of the executive council of the ICTU. I urge the Minister to consider this position seriously.

In the context of the Bill I also raise the issue of disability which is directly linked to it. There are thousands of people with intellectual and physical disabilities in this State who are not treated equally. This is an opportunity to ensure that they are given genuine equality. There are nearly 3,000 people with intellectual disability awaiting services. I hope the broader disabilities Bill is published out before the Easter recess because many people are waiting for it. The Disability Federation of Ireland contacted me on this issue and I gave a commitment that I would raise it in this debate.

Since July, there have been a number of deadlines, the first of which was in November. The Minister met the DLCG in late November to give a commitment to publication on 27 January when the Dáil resumed. That meeting was told there would be a delay of a week or so. On 17 February at a meeting between the DLCG and senior officials from the Department of Justice, Equality and Law Reform, it was stated that publication was likely within a few weeks. It was further explained to me that it would be weeks rather than months. It cannot now be published until late March at the earliest. These repeated delays are not simply causing frustration. They are feeding a growing cynicism about the intentions of the Government in this regard.

I remind the Government that it stated its commitment in its programme for Government and again in Sustaining Progress as follows:

A Disability Bill will be published by Autumn 2003, with a view to its enactment by end 2003. Implementing the proposed legislation will require an integrated and concerted cross-departmental approach and action.

Sustaining Progress was published in February 2003. It committed to publication of a Bill within six months of that agreement. The same time span has now passed again, along with numerous deadlines. Will the Minister ensure the Bill is published? This is linked to the question of equality. It is essential that all taxpayers and people who depend upon the State for their existence, including the elderly and the disabled, must be treated equally and have their rights as citizens respected. Further delay on this issue is unacceptable.

I highlight the high unemployment rate among people with a disability in this State. Between 60% and 70% of such people are unemployed. This unacceptable. There are many talented people who are disabled and have a significant contribution to make, as evidenced by the valuable work of those who have jobs. I compliment groups such as Dublin City Council that have exceeded the 3% quota. In Dublin City Council, people with disabilities comprise 4.6% of its 67,000 strong workforce. There are examples of good practice in bringing about equality as a reality for people. The issue of disability needs to be strongly emphasised in discussing this legislation.

It is stated that the purpose of the Bill is:

... to amend the Employment Equality Act 1998 and Equal Status Act 2000 ... to give effect to Council Directive 2000/43/EC ... implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Council Directive 2000/78/EC ... establishing a general framework for equal treatment in employment and occupation and Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending the Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.

I want to focus on equality as it affects women. There is much talk in the broader society about the high-tech, strong and vibrant economy with many jobs. The significant contribution of women to the development of the economy and the State generally must also be acknowledged. In terms of vocational training and employment, it is important to ensure that every person in this State is given the opportunity to develop to their maximum potential. If we are to have equality, we must have regulations and supports in place to ensure that people get an equal opportunity in life and can live out the ethos and vision portrayed in this legislation. It is important to remind ourselves that people are being born in hospitals throughout Ireland who will not have the same opportunities as others.

I welcome the opportunity to debate this Bill. It is important that the Minister of State listen to the ideas being put forward. I also urge the necessity for a balanced, cool and rational debate on the race issue.

There is an air of begrudgery about the Minister of State's speech to the House. He opened by saying that this legislation is intended to meet Ireland's obligations. In saying that, he is laying down a marker that he does not intend to go beyond merely meeting those obligations. Those words betray the false ideology of the Government. Its policy betrays an absence of leadership and an abundance of arrogance. In many respects, the Bill simply sets down the minimum requirements for dealing with the European directive. That is not good enough for those who are discriminated against, nor is it good enough for a Government that has stated on paper that it tries to go beyond minimum obligations.

Equality in its rawest form should be a freedom from discrimination. It should be equal treatment under law, equal status and equal rights. In many aspects of the Bill there is that begrudging tone that simply tries to meet the minimum requirement of the European directive. What role is Ireland to have in Europe? What role are we to have in terms of the European Presidency if we simply try to comply with the minimum requirement of what Europe tells us to do? Ireland, especially during the Irish Presidency, should be a beacon and shining light for equality throughout Europe rather than slavishly trying to adhere to the minimum guidelines.

Ireland is unique in Europe in so far as the laws in Ireland on discrimination come into effect only if an individual takes a case against an employer or a service provider. An obvious case of discrimination is not addressed unless a claim is pursued. That is at odds with the way these issues are handled in the rest of Europe. Our European counterparts addressed this inadequacy by including statutory duties to promote equality in the legislation. I do not believe that is in the text of the legislation before the House today.

I was overwhelmed by the strength of concern expressed by the 26 groups which addressed us in Leinster House yesterday about many aspects of the legislation before the House today. They were Age and Opportunity, Amnesty International, the Community Workers Co-operative, the Dominican Justice Alliance, the equality studies centre in UCD, the European Anti-Poverty Network, Focus Ireland, the Forum of People with Disabilities, the Free Legal Advice Centres, the Gay and Lesbian Equality Network, Integrating Ireland, the Immigrant Council of Ireland, the Irish Council for Civil Liberties, the Irish National Organisation for the Unemployed, the Irish Refugee Council, the Irish Traveller Movement, the National Women's Council of Ireland, the National Lesbian and Gay Federation, the National Traveller Women's Forum, Nexus, the northside law centre, One Family, One Parent, Outhouse, Pavee Point and the Wheel. Most of these groups have contacted us on various issues over the years but apart from one incident last year, this is the only time they have united to inform us of their deep concerns about this legislation.

I was overwhelmed by the strength of the views put across to us yesterday. Martin Collins from Pavee Point expressed deep concern that the Traveller community could face further discrimination, just as it did with recently passed legislation. He was concerned about the way people over the age of 50 would be treated. His concerns are real, as are the concerns of lawyers working for organisations from FLAC. I do not believe the type of concerns they have expressed to us are being addressed in the legislation.

One of the concerns put to us was about the use of specific wording in the legislation. The phrase "would put persons" was used as an example. I will come back to that in a moment but it involves the minimum requirements of implementing the directive rather than trying to go beyond those minimum requirements. As a prelude to the Bill we believe there should have been consultation with all of these bodies prior to bringing in the legislation.

This Government has characterised itself by an absence of White Papers on the crucial issues of the day. When it comes to immigration the Minister for Justice, Equality and Law Reform says we will hold a referendum, probably in ten weeks. Why do we not have debate? Why do we not have a White Paper on these crucial issues? If ever there was an issue that needed a long and informative discussion with full consultation, it is the issue of equality. We are concerned that we have not had, within the lifetime of this Dáil, sufficient discussion and information to inform us adequately of what is being proposed.

I do not wish to go into too much detail on the various amendments my colleagues and I will table on Committee Stage but I will give one or two examples. The Bill fails to address discrimination in the recruitment process. Job applicants may be discriminated against because of the potential employer's own prejudices. Respect for family life is no justification for a total ban to enable employers engage in discriminatory practices.

I am very concerned that those workers who provide domestic services may encounter deep prejudice from a potential employer. The stereotypical people who work in the home these days, frequently recent immigrants to Ireland and most often women, are facing the possibility of significant discrimination by a potential employer in regard to their work in the home. I am concerned that the area of domestic workers is not being addressed in sufficient detail in the legislation before us.

In terms of the maximum awards that can be paid out, we are concerned about the maximum amount of compensation, which is 104 times the weekly salary. Keynote cases should lay down a message for potential employers, and a maximum limit should not be put on the amounts that can be paid out in those cases because it is crucial that employees are made fully aware through the law, the media and their employers that the penalties can be severe if they ignore the law. That provision should be put into the legislation.

Section 45 states: "...where an apparently neutral provision puts a person referred a particular disadvantage..." That should be broadened to read: "...where an apparently neutral provision would put the person referred to at a particular disadvantage". It is not good enough to address the imbalance and inequity in a real situation. The legislation must anticipate the possibility of that happening, and the law must address that possibility. We shall seek that amendment in the legislation.

In terms of what needs to be added to the Bill, the functions of the State should be included in the definition of services in the Equal Status Act to ensure it complies with the race directive. Article 14 of the race directive includes an obligation on member states to take the necessary steps to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished. This has not been implemented in the Bill.

The three directives require member states to ensure that associations, organisations and legal entities with a legitimate interest in ensuring compliance with the provisions of the directives may engage in any judicial remedies and provide administrative procedures for the claimant. However, there is no provision in the Bill for trade unions and NGOs to initiate cases on behalf of the individual or represent them in the District Court and the Circuit Court. We see that as a significant failing that needs to be addressed in the detailed consideration of the Bill.

My party and I broadly welcome the main provisions of the Equality Bill 2004. The Bill's main purpose is to transpose EU directives on race, employment and gender but it fails to fully transpose the directives, and that is where our main problem lies. We are concerned that the Government is again trying to regress Ireland's approach on these directives and that we are moving backwards in several distinct aspects of the Bill which I intend to go into on Committee Stage.

I welcome the broad provisions of the Bill but I am concerned that it is clawing back many of the gains fought for with great difficulty over many years. I look forward to tabling specific amendments to the Bill.

There are nine minutes remaining in the slot. We are moving on to Question Time. Does Deputy Ó Snodaigh want to take a minute of the time now or wait?

Debate adjourned.