Equality (Miscellaneous Provisions) Bill 2013 [Seanad]: Second Stage (Resumed)

Question again proposed: "That the Bill be now read a Second Time."

Deputy Catherine Murphy was in possession. She had only one minute remaining and I assume she is not resuming. As there is no other Deputy offering on this Bill, I call the Minister of State to reply.

I thank Deputies from all sides for their valuable contributions on this Second Stage debate and for the broad support they have given to the principle of equality for all workers, particularly teachers and other workers who feel threatened by the current provision of section 37(1) of the Employment Equality Act 1998. Deputies referred to the devastating effects of discrimination and homophobia, and studies highlighting higher rates of depression and self-harm among the LGBT community have, sadly, underlined these effects all too clearly. These, and other examples mentioned by Deputies, show the extent of the problem and the urgency of having amending legislation in place as soon as possible.

It was for this reason that the Government, in the programme for Government, undertook to amend section 37(1) to provide for a more equitable balance between the rights and freedoms of religion and religious institutions on the one hand and the right to be free from discrimination on the other. The aim of the Bill is to provide clear guidance on resolving disputes that may arise between employees and employers. While it will always remain the case that an employer has the right to take action against an employee who acts against the employer's best interests, or undermines the institution's ethos, there will now be criteria against which to determine the reasonableness and proportionality of any action taken. The Bill requires that employers who provide publicly funded services should meet a higher standard of justification for any action taken against an employee on grounds of undermining the institution's religious ethos. The Bill thus distinguishes between religious institutions run wholly for private purposes and those providing a social, educational or medical service to the public financed by State funding. This important distinguishing feature must be recognised in any amending legislation in order to ensure its constitutionality.

I understand the frustration of some Deputies that the Bill does not go far enough and their desire that section 37(1) be repealed. However, there is a constitutional balance to be struck in reconciling the competing constitutional rights involved, namely, on the one hand, freedom of religion and freedom of association for religious bodies and their freedom to establish and maintain their own institutions, and on the other hand, the right of employees to be free from discrimination. To present it in a positive way, the legal advice available is that the State has a stronger standing, the right and, arguably, the duty to ensure people whose salaries are paid directly or indirectly from the public Exchequer are protected and that in such circumstances a stronger intervention in the employee-employer relationship than would be appropriate in purely religious institutions is justified.

The fundamental point with which we are grappling is that religious institutions do, and must, have the constitutional right to differentiate, which is the sense in which discrimination is used in EU law and our domestic legislation, on the basis of religion or belief. We can say there must be a rationale for favourable treatment and any action taken must be fully justified. We can raise the bar to a very high level where public funding is involved. However, we cannot prohibit religious institutions from differentiating on the basis of religion. Otherwise, the legislation when passed will be liable to successful challenge in the courts.

The Bill should be seen in the context of what the Government has achieved for LGBT people. We have introduced compulsory anti-bullying procedures in all schools explicitly referring to homophobic and transphobic bullying for the first time. We recently enacted progressive gender recognition legislation, making us one of the most progressive countries in the world for transgender rights. This week, we gave effect to the results of the marriage equality referendum last May through the commencement of the Marriage Act 2015. Ending discrimination in our schools and hospitals is the next major step in the programme of reform. I look forward to engaging further with Deputies on the technical aspects of the Bill on Committee Stage.

Question put and agreed to.

When is it proposed to take Committee Stage?

Committee Stage ordered for Wednesday, 2 December 2015.