Seanad Éireann debate -
Tuesday, 15 Apr 1997

Vol. 150 No. 17

Equal Status Bill, 1997: Second Stage.

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

Minister for Equality and Law Reform (Mr. Taylor)

I am pleased and honoured to introduce this important measure which has the potential to improve the lives of many people in this country.

The Equal Status Bill will, for the first time, provide protection against discrimination outside the field of employment. It deals with discrimination on the grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race, colour, nationality, national or ethnic origin and membership of the travelling community and gives those who are discriminated against a statutory means of redress. It has a broad ranging scope covering provision of personal property and services, disposal of land and accommodation, education, partnerships and registered clubs. This measure parallels and complements the Employment Equality Bill which prohibits discrimination on similar grounds in the workplace.

The Equal Status Bill is about equality and it is about rights. It is based on the principle that everyone has an equal right to participate in our society. People should not be denied access to services, facilities or amenities just because of their skin colour, their disability or their membership of the travelling community. Everyone, male or female, white or black, old or young, with or without disability, should be seen as being of equal worth and entitlement. Each person should be treated on his or her own merits and not on the basis of a prejudice or stereotype. We are all entitled not to be the victims of unjust discrimination.

The primary reason for bringing forward this measure is to provide protection against discrimination for those who up to now have had no statutory means of redress. Unfortunately, for too many people, discrimination has been and continues to be an unacceptable reality. Fr. Micheál MacGréil's recent book, Prejudice in Ireland Revisited, while showing an improvement in some areas, records a growing level of social prejudice against travellers together with marked prejudice against, and intolerance of, some religious groups, homosexuals and persons with certain disabilities, among others. Such negative and hostile attitudes can, and do, manifest themselves in various forms of discrimination.

At present there is no legal redress for the woman who cannot become a member of a local golf club simply because she is a woman, the person who is refused entry to a pub because he or she uses a wheelchair or the black person who is not given a flat simply because of his or her skin colour. Such people want more than sympathy, they want the protection of the law. I have received numerous letters describing the stress, embarrassment, frustration and sense of injustice and exclusion experienced by victims of discrimination. Groups representing persons who have experienced discrimination, be they women, travellers, gays, racial minorities or people with disabilities, have been pressing for legislation on these lines for some considerable time and are anxious to see this measure in place.

In the absence of such legislation, Ireland cannot ratify the UN Convention on the Elimination of All Forms of Racial Discrimination. This convention has now been ratified by 155 countries, including all of our EU partners. The enactment of the Equal Status Bill is also necessary to enable us to lift a reservation on the UN Convention on the Elimination of All Forms of Discrimination against Women. Legislation on the lines of this Bill is, in various forms, commonplace elsewhere in the EU and in many other democracies.

There is now widespread acceptance of the principle of equal status legislation. The enactment of an Equal Status Bill has been a fundamental element of the programmes of this and the previous Government. It has been endorsed by the social partners in both the Programme for Competitiveness and Work and Partnership 2000. Recommendations relating to anti-discrimination legislation were contained in the Reports of the Second Commission on the Status of Women, the Task Force on the Travelling Community and the Commission on the Status of People with Disabilities.

I mentioned that while anti-discrimination legislation of this type is new to Ireland it has existed in many other countries for years. In developing this Bill I have drawn on the provisions of other countries, particularly the common law jurisdictions such as the UK, Canada, Australia and New Zealand. Review and comparison of the legislation of other countries and detailed discussion with those involved in the implementation of such legislation have been an important element of the Bill's preparation.

Senators may note that when anti-discrimination legislation was introduced in other countries there were fears of damage to business or of fraudulent claims similar to those which have been expressed about the present Bill. Such fears were not in fact realised and anti-discrimination legislation works well and is accepted as a normal feature of life in other countries.

The preparation of the Bill has also involved extensive consultation with interested parties. From the outset I decided that the views and proposals of all interested parties should be sought. In 1993 I circulated a consultative document to over 80 persons and groups. Since then I have had discussions with and received submissions from numerous and varied interest groups. Some groups have had discussions on several occasions with officials of my Department. I have heard the views of those representative of vintners, traveller interests, retailers, the insurance industry, gays and lesbians, people with disabilities, racial minorities, property owners and those pressing for greater equality for women in golf, among many others. All submissions received were carefully examined in the preparation of the legislation. Indeed, the process of consultation did not end there. The Bill was significantly amended during its passage through the Dáil in response to the various comments and suggestions made in the House and elsewhere following its publication.

I wish to make some general points about what the Bill does and does not do. There has been much apprehension and considerable misunderstanding about the effect of the Bill on publicans and other commercial interests. I want to make it clear that the Bill will outlaw discrimination only on specified grounds. It will not require traders to admit all comers. It will not prevent business people in the ordinary day-to-day running of their business from refusing service to someone because of misconduct, security concerns or lack of hygiene. It will not give any protection whatsoever to trouble makers or anti-social elements.

In response to concerns expressed by publicans and other traders, I invited proposals for safeguards to be included in the Bill which would meet such concerns. A number of such proposals were made and having carefully considered them I have included important safeguards in the Bill which will meet these concerns without in any way diluting the Bill's basic objectives. While I will discuss these at a later stage, I wish to draw Senators' attention, in particular, to sections 17 and 75 of the Bill.

Senators may have noticed that several of the cross references in Part III of the Bill and one in section 64 are incorrect. There was a substantial amendment to Part III on Report Stage in the Dáil and because of a procedural oversight the appropriate cross references could not be included in the published version of the Bill as passed by Dáil Éireann. I will be introducing some technical amendments to correct these cross references.

I now wish to turn to the specific provisions of the Bill. Part I defines terms used in the Bill. Senators may wish to note the broad definition of "disability" in section 2. There is also a comprehensive definition of "services" which includes services and facilities of any nature including access to and use of any place, banking or insurance services, facilities for entertainment, recreation or refreshment, cultural activities, transport or travel and professional or trade services. It does not include services provided under a contract of service, services which are not generally available to the public or services covered by the Employment Equality Bill.

The key element of this Part is section 3 which sets out what is meant by discrimination. Discrimination occurs where, on discriminatory grounds that existed, exist, are believed to exist or are considered likely to come into existence, a person is treated less favourably than another person is, has been or would be treated. It also occurs where an organisation — a gay and lesbian society, for example — is treated less favourably because of the nature of its membership or where a person is treated less favourably because of their association with a person or organisation to whom the discriminatory grounds apply. A further form of discrimination occurs where a requirement to comply with a condition has a disproportionately adverse effect on a particular category of person and this requirement cannot be justified as being reasonable in all the circumstances of the case. This form of discrimination is commonly known as "indirect discrimination" although the term does not appear in the present Bill.

The discriminatory grounds are gender, marital status, family status, sexual orientation, religion, age, disability, race — covering race, colour, nationality or national or ethnic origin — and membership of the travelling community. Victimisation of a person because of their involvement in proceedings under this Bill is also treated as a discriminatory ground. I cannot emphasise too strongly that the Bill deals with discrimination on these grounds alone and does not affect differences of treatment based on other grounds.

Sections 4 and 5, which contain particular provisions related to persons with disabilities, supplement the meaning of discrimination given in section 3. The concept of "undue difficulty" is introduced in section 4 in recognition of the fact that, in some limited circumstances, it would be impractical or extremely difficult to meet the needs of persons with a disability. Whether undue difficulty arises will depend on a number of factors, including whether catering for a person with a disability would entail difficulty, disruption or cost which is excessive by reference to the benefits accruing to all concerned.

Section 5 extends the meaning of discrimination to include refusal to do what is reasonably necessary to allow a person with a disability to avail satisfactorily of a service to which he or she would otherwise have access unless what is required would give rise to undue difficulty. What is reasonably necessary may include special treatment or the provision of special facilities. Although the term "reasonable accommodation" is not used, this is, in effect, the "reasonable accommodation" provision which was sought by the various interest groups concerned. Section 5 also provides that, subject to the "reasonable accommodation" requirement, it will not be regarded as discrimination to refuse or limit a service to a person with a disability where, because of the disability, the person concerned cannot comply with conditions that reasonably apply to the provision of the service.

Part II of the Bill deals with discrimination in particular areas. Discrimination in the provision of personal property and services is prohibited in section 6. There are a number of exceptions for differences of treatment in certain circumstances in particular areas, such as insurance, sporting events and entertainment. Among these exclusions are one-time dispositions other than in the course of a business or trade, for example, a private sale of a car. Reasonable differences of treatment in the area of insurance and finance which are based on actuarial or similar data are exempt. Examples of this would be the different treatment of persons under 25 in relation to motor insurance and the different treatment of persons on age grounds in relation to life assurance. Differences of treatment of persons on the grounds of gender, age, disability, nationality or national origin are permissible in relation to sporting facilities and events. Thus, for example, the Bill recognises and allows for different events, such as women's or men's football teams, under-21 football teams or games for people with a disability. As these examples show, the various exceptions reflect what most people would regard as acceptable and necessary differences of treatment.

Discrimination in land dispositions and provision of accommodation is also prohibited, subject to a number of exclusions. Among the exemptions are disposals by will or gift, small premises where the accommodation provider continues to live on the premises, accommodation intended for use by persons of one gender and refuges and nursing homes. Educational establishments may not discriminate against students in relation to matters such as admission or access to courses. A number of exemptions are also provided for.

Section 9 prohibits discrimination by firms of partners and so on in relation to the admission of partners or members, the status of partners or members and expulsion or other sanctions. This provision has been included — in so far as gender, pregnancy and marital status are concerned — on foot of EU Directive 86/613 on the equal treatment of self-employed persons. Similar provisions are to be found in anti-discrimination legislation in other jurisdictions.

The unjustified exclusion of women from equal participation in golf clubs and similar sporting or recreational clubs was highlighted by the Second Commission on the Status of Women which recommended legislative measures to deal with this. I have no doubt that this is an issue on which many women, and indeed men, feel very strongly. While the number of discriminating clubs may be decreasing, unequal treatment continues to exist and I do not think equality in this area will be achieved by education and persuasion alone.

The approach taken in relation to discriminating clubs in section 10, however, differs from that taken in other areas. The Bill does not prohibit discrimination by clubs against members or potential members. Instead, it seeks to discourage such discrimination by allowing a complainant to apply for a determination from the District Court that a registered club, that is, one which can sell intoxicating liquor, is a discriminating club. If the club is determined by the District Court to be a discriminating club, it would not be entitled to renew its certificate of registration and would not be entitled to public funds or the use of publicly owned recreational facilities until it had rectified the situation. However, I will be providing a six month lead-in time for this section and I hope clubs will put their house in order voluntarily and that this particular section will not have to be used.

A number of exemptions are provided in section 11 in relation to registered clubs. Clubs are not regarded as discriminating just because they cater for persons of a particular religion, age, nationality or ethnic origin. It is also permissible for a club to provide separate, but equivalent, facilities for particular age groups or different sexes in certain circumstances. Relevant and reasonably justifiable differences of treatment in relation to sporting facilities or events based on gender, age, disability, nationality or national origin are permissible. Certain positive action measures designed to promote greater equality are also exempted.

In section 13, sexual harassment or harassment based on any of the discriminatory grounds is prohibited in the areas covered by the Bill. A person in authority in an educational establishment, an organisation or club or a partnership, a person providing services or accommodation or disposing of personal property or land may not sexually harass or harass a student, member, customer, etc., as the case may be. Furthermore, a person who is responsible for the operation of an educational establishment or a place at which goods, services or accommodation facilities are offered to the public may not allow a student, customer, etc., to suffer sexual harassment or harassment there. It will, however, be a defence for the person responsible to show that he or she took reasonably practicable steps to prevent such harassment.

The definitions of sexual and other harassment were substantially amended in the Dáil following changes to the Employment Equality Bill. The provisions of the two Bills are — in essence, if not in actual wording — the same. Sexual harassment is defined as an act of physical intimacy, a request for sexual favours or an act or conduct with sexual connotations which is unwelcome and could reasonably be regarded as sexually offensive, humiliating or intimidating, or where a quid pro quo element is involved. Harassment is defined as an offensive, humiliating or intimidating act or conduct based on any of the discriminatory grounds.

Section 14 prohibits any form of advertising which indicates an intention to discriminate, to sexually harass or to harass. Senators will note the comprehensive definition of advertisement which includes every form of advertisement, whether to the public or not, and whether in a newspaper or any other publication, on television or radio or by display of a notice or other means.

I have already mentioned some of the specific exemptions which apply to particular areas. There are also some exemptions of application in sections 16 and 17. For example, actions which are required to be done by or under statute, court order or EU law are exempt, as are bona fide positive action measures. A reasonable preferential charge for persons together with their children, married couples, persons in a specific age group or a person with a disability is permissible. Treating a person who has a disability differently to prevent that person causing harm is acceptable, as is differential treatment in the exercise of clinical judgment.

Section 17 contains some important safeguards. The safeguard in subsection (1) makes it clear that a service provider or similar person is not required to serve a customer if the service provider has reasonable grounds, other than discriminatory grounds, for the belief that provision of the service would create a substantial risk of criminal or disorderly conduct or behaviour or cause damage to property.

Subsection (2) also provides that action taken in good faith for the sole purpose of complying with the Licensing Acts is not discrimination. These safeguards are intended to meet the legitimate concerns of vintners and other traders without interfering with the Bill's central thrust of outlawing discrimination.

I regard sections 19 to 21 as a particularly important aspect of the Bill. They make special provisions for the needs of persons with a disability in the area of transport accessibility and convenience in using public streets and pavements. They provide for regulations requiring that buses and trains, and bus and train stations, be readily accessible to persons with disabilities. In addition, road authorities must provide kerb ramps or similar features when constructing or altering public paths. The report of the Commission on the Status of People with Disabilities laid particular emphasis on the right of persons with a disability to the same freedom that able bodied people have to get out and about. The inclusion of these provisions recognises the importance of transport and ease of mobility in the lives of people with disabilities.

I will now turn to the enforcement provisions under Part III of the Bill. Claims of discrimination or harassment may be referred to the Director of Equality Investigations, an independent official operating under the Department of Equality and Law Reform. This office will provide a simple, inexpensive and speedy means of redress for victims of discrimination. I have already said that the decision on whether a club is a discriminating club is a matter for the District Court and I would emphasise that the Director of Equality Investigations will have no function in the matter of discriminating clubs.

There will be an alternative avenue of redress for claims under section 9 to which the EU Directive on Self-Employed Activity is relevant — broadly speaking, gender, pregnancy or marital status based cases involving firms. In such cases, there will be a right to take civil proceedings but the director will not investigate or decide on a case if such proceedings have commenced.

Much of Part III, sections 23 to 41, is concerned with the procedures applicable to claims referred to the director. Subject to certain modifications and exceptions, these enforcement procedures correspond to those applicable to cases referred to the director under the Employment Equality Bill. Senators may wish to note the following aspects of the redress procedures.

A claim referred to the director under this Bill must be preceded by an initial notification to the respondent within two months of the alleged discrimination, or of its most recent occurrence. This requirement is intended to put the respondent on notice and give him or her the opportunity to take remedial action. There is a six month limit for referral of claims to the director, which may be extended in exceptional circumstances to 12 months. The director may at any time dismiss a claim in which the complainant has insufficient interest or which is made in bad faith or is trivial, vexatious or frivolous. The director may investigate a claim or, alternatively, seek to resolve the matter by mediation. Having investigated a claim, the director may award compensation and/or require that a particular course of action be taken. Compensation is limited to the maximum that could be awarded in a civil case in contract, currently £5,000 — that is to say, the jurisdiction of the District Court for the time being. The director will have strong investigative powers to enter premises, to obtain relevant information through interview or otherwise and to ensure the imposition of sanctions in the event of failure or refusal by persons to co-operate with an investigation.

Decisions of the director may be appealed to the Circuit Court within 42 days.

The Equality Authority will have the power under section 26 to refer cases to the director. Such cases could involve discrimination against a group of persons or a situation where the person concerned is not in a position to bring the case themselves. The authority may also refer cases involving prohibited advertising, procurement of discrimination or failure to provide kerb ramps or to comply with regulations on transport accessibility. It will also have the power to seek injunctions.

Part IV provides for a restructured Equality Authority with an extended remit covering both employment and non-employment areas. The Equality Authority, currently known as the Employment Equality Agency but to be renamed under the Employment Equality Bill, will have a new composition to reflect its altered mandate. It will have 12 members, including a chairperson, of which at least five will be women and at least five men. Of the ordinary members, two will be nominated by employer organisations and two by employee organisations. The remainder of the ordinary members will be persons with knowledge or experience of matters relevant to the functions of the authority.

The general functions of the authority, as outlined in section 54, include working towards the elimination of discrimination; promotion of equality of opportunity in matters relating to this Bill or the Employment Equality Bill; provision of information on, and review of, the Equal Status Bill, the Maternity Protection Act, the Adoptive Leave Act and the Employment Equality Bill and review of the equal treatment aspects of the Pensions Act, 1990. The authority is also given specific functions under various provisions of both Bills.

The authority is given a number of instruments with which to pursue its functions. It may undertake research and information activities and charge for these. It may also conduct investigations. If, arising from an investigation, the authority finds that a person is discriminating or is otherwise in breach of either the Employment Equality Bill or the Equal Status Bill, it may serve a non-discrimination notice requiring the person to take remedial action. The High Court or the Circuit Court may, on the motion of the authority, grant an injunction for failure to comply with a non-discrimination notice.

Another significant feature of the authority's remit is that it may give assistance in cases under both Bills where an important matter of principle is involved or where it would not be reasonable to expect the person concerned to present the case adequately without assistance. It should be noted that assistance may be given by the authority not only at any stage in relation to references to the Director of Equality Investigations, the Labour Court or the District Court, as the case may be, but in relation to any proceedings arising from such references.

Also noteworthy is the authority's power to prepare codes of practice aimed at the elimination of discrimination or the promotion of equality. Following my approval, such codes are admissible as evidence in a court.

Part V contains various general provisions. I would draw attention to section 75, which provides that parties to an investigation by the Director of Equality Investigations, witnesses before the director or the authority, or persons required to supply information to the director or authority, will have the same immunities and privileges as a witness before the High Court. This section will, I believe, allay any concerns that a person involved in proceedings under this legislation might find themselves sued for defamation.

It will be obvious to Senators that there is a close relationship between this Bill and the Employment Equality Bill which the President has referred to the Supreme Court to test its constitutionality. The Equal Status Bill would be incomplete if the Employment Equality Bill is not also enacted. I do not intend, therefore, to make any orders commencing the Equal Status Act at least until the Supreme Court gives its decision on the Employment Equality Bill. If that decision upholds the constitutionality of the Bill, both measures can be given effect as appropriate in the ordinary way. Otherwise, the whole subject will have to be revisited by the Government and the Oireachtas. I am concerned, particularly in light of representations I have received from groups which will enjoy protection in the Equal Status Bill, to ensure that it becomes law as quickly as possible and, therefore, I am proceeding in this way instead of holding over further consideration of the Bill in this House until after the court's decision.

The Equal Status Bill has been a long time in gestation. As it breaks new ground and covers a variety of categories and range of areas, its preparation has necessarily been a complex and difficult task. It is part of a wide ranging programme of measures aimed at the promotion of greater equality and the full participation of all groups in the economic, social and cultural life of this country. Its provisions and those of the Employment Equality Bill would give Ireland a comprehensive anti-discrimination code.

The equal status legislation will have a profound impact on Irish society. I would hope not to see a multitude of cases under this legislation. Rather, my hope is that the existence of such legislation will inhibit would-be discriminators and reduce the incidence of discrimination. While I recognise that legislation alone cannot change attitudes, I also hope that over time discrimination against persons simply because of factors such as their race, sexual orientation, disability or gender will become socially, as well as legally, unacceptable. The activities of the Equality Authority in its expanded role will also contribute to this outcome. The Equal Status Bill is a significant step towards a society of greater equality, mutual respect and tolerance.

This Bill was the subject of positive debate in the Dáil and I hope to hear a similarly constructive debate in this House. I look forward to contributions by Senators on this important legislation.

Mrs. McGennis

I welcome this Bill which complements the Employment Equality Bill which has been referred by the President to the Supreme Court to test its constitutionality. I hope it will be adjudged to be in accordance with the Constitution.

Mr. O'Toole

The Senator is backing the wrong horse.

Mrs. McGennis

The Minister said this legislation, like the Employment Equality Bill, was the subject of widespread consultation. He met a large number of people and groups with a specific interest in order to reach agreement on it.

The Minister mentioned the concerns of traders. I am grateful the Bill will not require traders to admit all comers, that it will not prevent business people in the day to day running of their business from refusing service to someone because of misconduct, security concerns or lack of hygiene and that it will not give any protection to troublemakers or to anti-social elements. People were concerned that known criminals could demand and have right of access to business premises or other establishments. I will not deal with the concerns of vintners because my colleague, Senator Bohan, will discuss that aspect.

I also welcome section 19 which deals with access for disabled persons to public transport and the need for public transport providers to ensure that new fleets are accessible to them. Two years ago members of the Centre for Independent Living protested outside the Houses of the Oireachtas and in the anteroom to this Chamber — they could not gain access to the Public Gallery — to highlight how their lives and prospects of employment were affected because they did not have access to public transport. I welcome the fact that there will be an onus on public transport providers to ensure that new fleets are accessible to disabled people.

Section 21 refers to the requirement of local authorities to provide dished footpaths, etc. Local authorities have undertaken a programme to improve footpaths which is funded by the National Roads Authority. However, local authorities must take into account the effect of road networks not just on disabled persons but also on able bodied people. It is difficult, particularly in parts of Dublin, for able bodied people to cross roads in housing estates and it is almost impossible for those who are disabled to get across in safety because of their width and design. Local authorities must ensure that road networks are safe for able bodied people and disabled persons.

The Minister mentioned a number of exceptions for differences of treatment in certain circumstances, particularly in the area of insurance, about which I am concerned. Section 6(2) states:

Subsection (1) does not apply in respect of—

....

(e) differences in the treatment of persons in relation to annuities, pensions, insurance policies or any other matters related to the assessment of risk where the treatment—

(i) is effected by reference to—

(I) actuarial or statistical data obtained ..., or

(II) other relevant underwriting or commercial factors, and

(ii) is reasonable having regard to the data, or other relevant factors.

I am concerned that this could be misused by insurance companies or that BUPA could take it to mean it was allowed to offer insurance cover which is not community rated. Perhaps he could clarify that.

The Minister said that educational establishments may not discriminate against students in relation to matters such as admissions or access to courses and that a number of exemptions are also provided for. Perhaps he could clarify if school catchment areas are unlawful in this regard.

Much attention has been given to the rights of the travelling community to have access to hotels and public houses. Their entitlement to enjoy weddings or a social drink should be laid down in law. An area which is of greater concern to the travelling community and me is the right of members of the travelling community to local authority housing, whether in halting sites or group housing scheme. This is an area in which politicians must be courageous and they must not shy away from responsibility. I am proud that the Fianna Fáil spokesperson, Deputy Flood, has taken his responsibilities seriously. He has publicly supported proposed halting sites in the constituency he shares with the Minister when other elected members there were not willing to support the rights of the travelling community. My position on this matter is clear.

Section 7(6) states that a housing authority, pursuant to its functions under the Housing Acts, 1966 to 1992, may provide, in relation to housing accommodation, different treatment to persons based on family size, family status, marital status, disability, age or membership of the travelling community. I am a little concerned about the mention of marital status in particular because it is my understanding, as a member of a local authority for 13 years, that local authorities do not take marital status into account in any way, shape or form in relation to the allocation of points or the provision of housing accommodation. I am concerned that we are providing a right in law to a local authority to do so.

Of equal concern to me is the fact that the Bill allows local authorities to discriminate on the basis of membership of the travelling community. That may mean that a specific group housing scheme could be constructed for travellers; that is positive discrimination but it also suggests that if a member of the travelling community applies for housing on Blackditch Road, for example, which is not a housing scheme specifically for travellers, he or she may not be considered for it and may only be considered for Avila Park, which is a group housing scheme for travellers. I want the Minister to reassure me that this will not allow local authority members to create ghettos for the travelling community because many members of the travelling community do not want to live in halting sites or group housing schemes and have decided that they want to apply for a house from the normal housing list.

It is acknowledged that women have been among the most discriminated groups in society, and we discussed this under the Employment Equality Bill. They even had to fight for the right to vote. Their right to equal pay must be enshrined in law. During the passage of the Employment Equality Bill through this House I referred to the concept of a notional comparator. Since women earn slightly in excess of 60 per cent of what their male counterparts earn, there is a need to ensure that women are treated on an equal basis. I am not sure if that can be done under this Bill but I want the matter to be addressed in any future legislation in this area.

I am pleased the Minister has dealt in a most sensible way with clubs which discriminate. Sanctions, such as the loss of licence or grants, are the most effective way of dealing with such groups. I proposed to the Minister for Environment and to a previous Fianna Fáil Minister for the Environment that local authorities which discriminate and do not live up to their responsibilities in terms of accommodation for the travelling community should be penalised through the withdrawal of grant assistance. This did not receive unanimous support but the way the Minister is proposing to deal with clubs which discriminate with regard to membership on grounds of gender is the correct one. Are the gentlemen's clubs on St. Stephen's Green still in existence? Might we see them lose their licences in future?

Mr. Bohan

There are women members.

Mrs. McGennis

I must seek membership.

The Minister stated that the Equal Status Bill is about equality and rights, and I agree. This Bill probably goes as far as is possible within the legal framework but I want to put the reality of inequality in society on the record. In Gallanstown, Ballyfermot, Dublin, ten houses have been boarded up for over two years yet decent people have had to live in appalling conditions for the past two and a half years when there is a housing crisis throughout the city and county. Down the road in St Michael's estate, Inchicore, Dublin, there are between 50 and 60 flats boarded up. They may not be in great demand but people have come to me looking for accommodation in these areas. This is not the environment in which other communities in Dublin and throughout Ireland have had to live. This is a basic inequality and, for what it is worth, I bring it to the notice of the Minister. When I contact the local authority, the staff tell me that this is unfortunate but there is no money for repairs. No community living in private housing would tolerate the kind of conditions in which the people of Cherry Orchard or St. Michael's estate have had to live. It represents a basic inequality in society.

In the area of education, I have had meetings with Sr. Rita, the principal of Basin Lane school, who told me that she is now paying out of her own pocket to board up windows which have been vandalised to the extent that the Department can no longer repair them — and I am sure Senator O'Toole can add to this list. She was delighted to be told by the Department that the school would be given a teacher for a special project to cope with children from dysfunctional families or difficult circumstances but she was later informed that the teacher would not be replaced and the school would have to pay for a replacement. In addition, St. Louis's school, Ballyfermot, which would be recognised as an area of disadvantage, is not included in the breaking the cycle scheme. These representations were brought to me in the same week that the Government announced spending of £30 million on computers. A computer is a luxury which the teachers of Basin Lane cannot afford but they would be delighted to have the windows replaced and an additional remedial/resource teacher.

The launch of the Ballyfermot partnership highlighted the fact that 1 per cent of young people from the area are likely to gain access to third level education. That is a basic inequality which suggests equal status is not available in this city.

In the health area, there is a five year waiting list for orthodontic treatment for a teenager. If a person has money, he or she can receive immediate orthodontic treatment for his or her son or daughter. Otherwise, one must sit and wait. An ex-Labour Party colleague of the Minister highlighted on the front page of a newspaper the fact that a constituent spent 28 hours on a trolley in St. James's Hospital. A drug abuser who has a medical card told me that his GP has decided not to prescribe methadone so he must rise at 5 o'clock to attend an alternative doctor who will prescribe methadone outside surgery hours but not on the medical card. As a result, this constituent pays £50 per week for his methadone maintenance programme.

With regard to crime, syringes are found strewn around housing estates and women have informed me that they must take their children to school via circuitous routes because they are afraid to pass areas with major drug problems where bag snatching occurs. I know the Minister is aware of these problems but it must be put on record that, as good as it is, equal status legislation does not tackle these inequalities in society.

I attended the launch of the Vincentian partnership's "A Programme for Voter Education" last week which was enlightening. In the Dublin West by-election the voter turnout in a particular area was 12 per cent. The Vincentian partnership's programme informs people who experience deprivation and marginalisation in the areas to which I referred that they have been abandoned by politicians and they have decided not to vote because there is nothing in it for them and the cycle will continue because politicians ignore their communities. From what I witnessed at the launch of that programme, the religious communities are empowering people to take control of their lives and make it clear to political parties and politicians that their votes are important and that they will determine the composition of future Governments. If politicians continue to ignore these people, they do so at their peril.

There was no need for the launch of a voter education programme to highlight the fact that the gap between those who have and those who have not has widened considerably during the past ten years and that the number of people living in poverty has increased substantially. I recognise the Minister's sincerity and he is doing everything possible within his area of responsibility. However, he and the Government elected to power following the general election must be made aware that, unless inequalities are removed from society, any legislation passed by these Houses will mean nothing to those who believe that we, as politicians, have forgotten and abandoned them.

I welcome the legislation and I will be supporting it. However, the areas I highlighted require positive and immediate action to put flesh on the bones of the legislation.

Mr. Neville

I welcome the introduction of this legislation. I agree with the final part of Senator McGennis' contribution where she identified areas where profound inequalities exist. It is very important that the Government and politicians address the situation developing in our inner cities and provincial towns, where social exclusion has reached the stage that people have withdrawn from the system and involvement in the political process. These people do not believe the State responds to their needs or helps them tackle the difficulties they face. We must work towards the inclusion of all sections of the community in society. In that context perhaps we should consider what society delivers to discover why certain groups feel excluded.

A discussion on this issue took place in my constituency yesterday. Large sections of society feel that the education system, as it is delivered, does not respond to their needs and they do not see any relevance in it. We must consider this issue in terms of equality to ensure that education services relate to those who feel they are socially excluded and believe that the political process either does not respond to their needs or is irrelevant.

It is important that everyone responds to the final part of Senator McGennis's very relevant contribution, not only by way of lip service but also by way of action in attempting to address the problems she highlighted. This area is not exclusively the responsibility of the Minister; there is an onus on a range of other Ministers to take action. We must consider this problem, respond to it and learn from the disastrous situation that has developed in other countries where total social exclusion and total non-involvement in society exist and people have little or no cognisance of political events. We are in a position to ensure that this does not occur in Ireland and we must do so.

I welcome the Equal Status Bill which had a long gestation period and I hope it will be passed as quickly as possible. I agree with the Minister that it will have a profound impact on Irish society. However, it is important to emphasise that a change of mindset is needed in many areas to ensure that discrimination against persons on the basis of factors such as race, sexual orientation, disability or gender becomes socially and legally unacceptable. The Oireachtas can make discrimination legally unacceptable but it must also become socially unacceptable and people must be treated as equals, regardless of their race, colour or creed.

The Bill provides protection against discrimination outside the context of employment. This is the first occasion on which a Minister has considered this situation. Since the early 1970s, various forms of legislation to protect people from discrimination in employment have been introduced and have proven to be relatively successful. Reference was made to discrimination in respect of equal pay, which still exists to some extent. However, marvellous strides have been made in this area and one need only recall the situation which existed prior to 1974, when equal pay legislation came into force, for evidence of this.

The Bill also makes it illegal to discriminate on the grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race, colour, nationality, national or ethnic origin or membership of the travelling community. Senator McGennis made particular reference to discrimination against the travelling community. On previous occasions I placed on record details of a community which does not discriminate against the travelling community and vice versa, although tensions do sometimes occur. I represent a town in County Limerick of which 45 per cent of the population are travellers and 55 per cent are members of the settled community. Three weeks ago a new development of 11 houses, in addition to the four already in existence, was opened for the exclusive use of the travelling community. Both communities in the area believe there is a need for this housing.

Difficulties arise when people from the outside, who are often referred to as "not our travellers", cause disruption. It is a fact of life that travellers from outside a community cause difficulties when they visit to attend weddings or other family or celebratory occasions. These problems are controlled and minimised at present but they have occurred in the past. The travelling community must recognise the norms and values of the settled community whose members have a right to live their lives as they please. When discussing the values and rights of the travelling community, there is an obligation to ensure non-discrimination against travellers who, in turn, have a responsibility to respect the norms, values and behavioural patterns of the settled community. To a large extent, this is happening in the town I represent which provides an excellent working model of how two groups with different norms and values can co-exist. I accept that there is tension but there is also a high level of tolerance and understanding between the communities.

The Bill introduces the principle that everyone is equal. Such a principle is overdue for being enshrined in legislation. It is welcome, however, because it is a basic human right. Religious instruction tells us that everybody is equal under God and we should also hold the principle that everybody should be equal under human institutions. The Minister is legislating for that principle. It is unfortunate that one should have to legislate for it but, as I said, hopefully legislation will not be necessary in the future as discrimination becomes socially unacceptable.

It is not to Ireland's credit that it has not ratified the UN Convention on the Elimination of All Forms of Racial Discrimination. It is ironic that this is the only EU country which has not done so because as a race we were discriminated against in many parts of the world over the centuries. We have all read of the notices which were common in America in the last century and early this century which read "No Blacks or Irish Need Apply". As a race which has suffered discrimination abroad and at home during the period of colonisation, when we could not practice our religion, obtain education or speak our language, it is ironic that it is among the last states to ratify the UN convention against discrimination. I welcome the introduction of this Bill which will facilitate the ratification of the convention.

The Minister referred to the consultative process on the Bill. He consulted all interested parties, including, at one stage, the Fine Gael Parliamentary Party. He listened to the concerns of the Fine Gael Members about some of the expected provisions, many of which did not materialise, perhaps as a result of the consultation with others. The Minister also heard the views of the vintners, traveller interests, retailers, the insurance industry, gays and lesbians, people with disabilities, racial minorities, property owners and those seeking greater equality for women in golf clubs, among many other groups. One could not have had a much broader consultative process. As a result, the Bill was highly controversial during its gestation and discussion but is now largely accepted by all sections of the community.

I congratulate the licensed vintners. Senator Bohan and Senator Howard are among their champions. There is no doubt that the information feeding system, that is, strong lobbying, was never more effective from any group as from the licensed vintners on this issue. The Minister was as good as his promise to listen closely to their concerns and to respond to them. He has made it clear that the Bill outlaws discrimination on specified grounds only, will not require traders to admit all comers or prevent business people in the day to day running of their businesses from refusing service to somebody because of misconduct, security concerns or lack of hygiene and will not give protection to troublemakers or anti-social elements.

In response to the licensed vintners and other traders, including the jewellers who felt vulnerable on this issue and from whom we had many representations, the Minister has ensured that proposals to safeguard them would be included in the Bill and that their concerns would be met. Section 17 makes it clear that a service provider or a similar person is not required to serve a customer if the service provider has reasonable grounds to believe that the provision of the service would create a substantial risk of criminal or disorderly conduct or damage to property. It safeguards the legitimate concerns of vintners and other traders without interfering with the central thrust of the Bill which is to outlaw discrimination.

Section 75 also assists in this regard. Concerns were expressed about legal difficulties which could arise if witness evidence was given to support accusations of misconduct. People felt that they might be sued for making such information available in good faith. Section 75 deals with this concern. It is important because it ensures that traders who refuse people service can express their concerns to the Director of Equality Investigations without the risk of litigation.

The Bill allows for discrimination in certain sporting and other events. This is a sensible approach to achieving a welcome balance. I welcome the Bill and look forward to its assisting in eliminating discrimination, promoting equality of opportunity in a range of areas in conjunction with the Employment Equality Bill, 1996, and the review of the Maternity Protection Act, 1994, and the Adoptive Leave Act, 1995. The Bill is the start of a process of ensuring that people are treated as equals.

Mr. O'Toole

I do not know why I have so many differences of opinion with the Minister for Equality and Law Reform. He is one of the most progressive Ministers in the history of the State and he has brought forward impressive and welcome legislation. This Bill will be seen in most of its provisions as such. However, I believe section 8 is unconstitutional and the Bill will follow the Employment Equality Bill, 1996, to the Supreme Court. Section 8(3) purports to give schools the right to refuse to admit pupils on the grounds of denomination. This flies in the face of the right of parents to choose the ethos of their children's education and is without doubt unconstitutional. It does not bear argument.

Article 42 of the Constitution states that parents are the primary educators of their children. They can choose to educate their children themselves or they can choose a school. There is no restriction, nor can there be, or confining of them to schools of the same denomination as their parents. There is a constitutional imperative on parents to make the correct choice regarding their children's education. That is not a choice but an imperative. If Catholic parents decided that a Protestant education would be best for their children and they select such a school, that is more than their entitlement: it is their imperative. The State cannot introduce law that restricts that right.

Article 42º2 of the Constitution is clear and unambiguous. It states that:

Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.

In no way can this be restricted by religious affiliation. That goes completely contrary to what was intended by the Constitution in spirit and wording. To reinforce this, article 42º3 goes on to state:

The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State ...

Neither can the State prevent parents, in legislation, from selecting schools of their choice. Despite all this, the State now proposes to restrict parental choice, in certain cases, to schools of the parents' denomination. Once again, the Churches and the State are interfering with the constitutional rights of citizens and they expect us to accept that the enrolment of four year old children of different denominations would undermine the ethos of a school. The Church line that somehow the ethos of a school would be undermined by introducing children of a different faith to a school is particularly offensive. The Constitution, in other cases, and rules of national schools make it absolutely clear that children have the right not to attend religious instruction if that is the parents' wish.

The Equal Status Bill is even more obviously unconstitutional than the Employment Equality Bill. It is impossible to believe that the constitutional lawyers advising the Government approved this section, which is not only unconstitutional but also inequitable and fundamentally wrong. Four year old children cannot and will not be used in the argument to protect ethos.

The Minister agrees with my views on this issue in his heart of hearts. Any time I have heard him discuss these matters he has made the same points. Whatever people think of the Constitution, it is clear and unambiguous and I want the relevant sections of the Constitution on the record.

Article 42 states:

The State acknowledges that the primary ... educator of the child is the family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral ... education of their children.

It is more than a right; it is the duty of parents to make the right choice. Parents would not be discharging their responsibilities to their children if they did not see it as their duty to make the right choice. Article 42 goes on to state:

Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.

Many parents have educated their children at home but we are talking here of schools recognised by the State. There are four choices — education can be provided at home, in private schools, in schools recognised by the State or schools established by the State. The next section is even more important:

The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State or to any particular type of school designated by the State.

One might say that there is a constitutional preference here, though it is not as clear as previous sections. If the Constitution lays it down that a parent cannot be obliged to send a child to a particular type of school designated by the State, then the Minister will agree that there is an equal and opposite constitutional right: neither can the State, in violation of the parents' lawful preference, oblige them not to send their child to a particular school designated by the State.

Article 44.2º of the Constitution reads:

....

2º The State guarantees not to endow any religion.

3º The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.

Nonetheless, section 8 of the Bill states that:

An educational establishment does not discriminate under subsection (2) by reason only that ... it refuses to admit as a student a person who is not of that denomination, and, in the case of a refusal, where it is proved that the refusal is essential to maintain the ethos of the school.

Anyone can see that that is discriminating on the ground of religious belief. Apart from that, if the section I quoted was not in the Constitution, what kind of model of society are we putting together? On the Order of Business, we criticise those who act in a polarised, sectarian way in the North by chasing people out of their homes or by burning homes and places of worship. On the other hand, we are bringing in legislation which separates people from a very young age. Surely people's ethos can be respected and promoted as well as children's education being progressed in the same building without having to discriminate against or separate children.

There is a serious difficulty here and I do not know what kind of agenda is in the State at present. The Employment Equality Bill will deprive people of their right to a private life and discriminates against those working in religious institutions — which may be endowed — and will be seen to do so. The Equal Status Bill purports to discriminate against four year old children who may not, under certain circumstances, be enrolled in a school on the basis of their religion, despite at least four sections of the Constitution which appear to rule this out. Tomorrow we will deal with the Universities Bill which claims to be liberalising areas on one hand and yet repeals a section of the 1909 Act which does not allow a religious test that would enable a university to discriminate against a potential employee on the grounds of religion. We are moving backwards to a fundamentalist approach to society which we will rue someday.

It has been put to me that this legislation is important in the light of the declining numbers in religious communities. We are now setting up a structure which will contain certain protections and demands. When there are no longer any religious to run these schools, the vacuum created by their absence will be filled by fundamentalists, a situation we have encountered already. Communities, teachers and those running schools should be trusted to protect the ethos of their schools. We not only have a duty to do so but a constitutional imperative to respect the ethos of homes and children. In this comprehensive legislation which gives due right and regard to people of various backgrounds such as travellers, people with disabilities, people with different sexual orientation and people with different marital status, why is this provision necessary? It is unconstitutional and moves in a direction which cannot be good for society. It also gives credence to the view that a school cannot maintain its ethos if some of the children are of a different religious denomination.

I appeal to the Minister to remove that part of section 8. There are circumstances in which preference can be given to a coreligionist. If, for example, one place were available in a school and two children, one of whom practised the same religion as that of the school, were seeking admission, it would be in order to take that fact into consideration in making the choice. That would not be unconstitutional. However, to say we have enough or we do not have enough or we have too many of a particular religion in a school and for that reason, although we have space, we will not admit a child and to assert that it is necessary to refuse admission to a four year old child in order to "maintain the ethos of the school" defies belief. Where did that originate? The Minister must be as uncomfortable with the provision as I. His views on these matters are well known.

In the history of this State we have been required, correctly, to protect the ethos, beliefs and culture of various groups. That should continue to be the case. However, section 8 does not go about achieving that properly. Instead it raises a huge problem. I appeal to the Minister to remove that subsection of an otherwise extraordinarily good Bill and to make appropriate changes to section 8 to ensure the Bill does not fall by the wayside. A Constitution which provides that one may not discriminate on the grounds of religious belief, profession or status and a Bill which provides that an educational establishment does not discriminate if it refuses admission to a person who is not of its denomination, where that refusal is essential to maintain the ethos of the school, are incompatible. I would welcome an opportunity to see the legal advice which states otherwise.

This is a serious and difficult issue that must be addressed. The legislation is being put at risk by the inclusion of this provision. Neither the Constitution nor the people will be comfortable with a Bill which discriminates against children on the spurious grounds that their admission to a school might undermine the ethos of the school. That is not the case and I do not believe it will happen. It is wrong to consider it possible.

This Bill is incompatible with the Constitution. The Constitution provides that one may not discriminate on the grounds of religious belief and that parents are entitled to make appropriate choices for their children's education. That includes the right of Catholic parents to select Protestant or other denominational schools for their children if that is their wish. That is incompatible with a Bill which provides that children may be refused admission to a school on the grounds of denomination, particularly if that proves necessary to protect the ethos of the school. I appeal to the Minister to sanitise the Bill immediately and render it constitutional. He must change section 8 to ensure we will feel comfortable with what is otherwise a superbly progressive, comprehensive and welcome Bill.

Mr. Bohan

I thank the Minister for the consideration he extended to the licensed vintners whom I represent in the Seanad. I am concerned with the sections of the Bill which affect the Licensed Vintner's Association. The Minister was available to the association at all times and we had many meetings with him. Initially, the Bill was not attractive from the association's point of view but the Minister listened to our concerns and made the necessary changes, with which the association is reasonably happy. I will not oppose the Bill.

Since the Minister announced his intention to introduce this Bill two years ago, I and my colleagues in the Licensed Vintners' Association have found the Minister accessible, prepared to listen with care and attention to the valid concerns of the Dublin licensed trade and willing to do everything in his power to ensure that, having regard to the constraints in the nature of the legislation, those concerns were addressed. In the real sense of that much abused term, the Minister is a gentleman and I wish him and his wife happiness during his well earned retirement.

The introduction of legislation which might adversely affect the publican's well established right to refuse service was naturally a matter of anxiety for the association. The power to refuse service is a cornerstone in the maintenance of order in a licensed premises. Any legal limitation of this power would lead to a serious breakdown of the discipline which underpins the orderly management of a public house.

The power to refuse service is not used by publicans as a means of discrimination. It is a tool of management which is essential to the good order and safety of those who work in and frequent licensed premises. Publicans, as ordinary sensible people, are primarily interested in building up their businesses and not in turning business away. During the period preceding the publication of this Bill, the Licensed Vintners' Association conducted a study of refusals in the Dublin licensed trade. The survey was designed in questionnaire form and was completed by over 40 per cent of the association's members, a measure of the importance they attach to the power to refuse service.

Two of the findings of the survey were illuminating. The first was that, contrary to the perceived view, people are not discriminated against in licensed premises solely on the grounds of their being members of minorities. Second, and regrettably a measure of the times in which we live, violence is frequently an accompaniment to refusal. In circumstances where this power was reduced or removed, chaos would ensue. For that reason I welcome section 17(2) of the Bill which states:

Action taken in good faith by or on behalf of the holder of a licence or other authorisation which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the provisions of the Licensing Acts, 1833 to 1995, shall not constitute discrimination.

This is the key provision of the Bill for the licensed trade. The Minister struck a fair balance in providing protection for the publican and his or her staff while safeguarding the rights of minorities who are prepared to behave in an orderly way on licensed premises.

The Bill addresses other concerns expressed to the Minister on the numerous occasions deputations from the Licensed Vintners Federation met him over the past two years. Section 25(b) gives the Director of Equality Investigations the power to dismiss a claim at any stage in an investigation where he is of the opinion it has been made in bad faith, is frivolous, vexatious or relates to a trivial matter. I hope the director will make full use of his power. All sectors of the retail trade are aware of the regular abuse by some sections of the community in pursuit of their so-called rights, whether it be through the courts or before other statutory bodies. One has only to witness the scandal of public liability claims to find a more than adequate endorsement of my argument.

I also welcome section 75, which provides parties to an investigation by the Director of Equality Investigations with the same immunities and privileges as a witness before the High Court. The question of privileged information is one of great importance, especially in circumstances where a refusal was based, not on the minority status of the customer, but on other confidential knowledge — for example, the customer being refused on the grounds that he or she was a known but unconvicted drug pusher.

I wish to refer to section 23(2)(a) and (b) which state that the director will not investigate a claim unless he is satisfied that:

(a) the complainant has, within two months after the prohibited conduct is alleged to have occurred, or where more than one incident of prohibited conduct is alleged to have occurred, within two months after the last such occurrence, in writing notified the respondent of the nature of the allegation, the remedy sought by the complainant in respect thereof and the complainant's intention to refer the matter to the Director if the complainant is not satisfied with the respondent's response to the allegation, and

(b) the respondent has not, within a reasonable time after the notification referred to in paragraph (a), responded to the complainant to the satisfaction of the complainant.

I ask the Minister to seriously consider reducing the two month's deadline to a considerably shorter period of two to three weeks. If an incident occurs in a busy public house on a Saturday night involving a half dozen people and they make a complaint, it is next to impossible for a member of staff to remember after two months who caused the trouble. I ask the Minister to seriously consider shortening the deadline. If someone has a complaint I see no reason why they cannot return the following week and make it. Whoever refused them service would then be in a position to remember what happened. It is not a major problem but it is something I ask the Minister to examine.

I mentioned earlier the comprehensive research the LVA included in its submission on this Bill to the Minister. One of the findings of this research was that in a large number of Dublin public houses refusals ran from hundreds of incidents to thousands each year. Such numbers of refusals occurred not only in traditionally difficult areas but also in areas which have a large passing trade through business, tourism and recreational activities or where the customer is normally unknown to the publican or bar staff. The potential for litigation in such circumstances becomes enormous, especially since it would be almost impossible for the publican or his staff to have an exact recollection of events surrounding each and every refusal. The Minister should reconsider the two months deadline not only in the interests of the trade but in the successful administration of the new legislation.

Overall, this Bill is to be welcomed and I congratulate the Minister and his staff in drafting this understandable form of what is complicated legislation.

I wish to refer to the Minister's forthcoming retirement. The Oireachtas will be a poor place in his absence. I have known the Minister, Deputy Taylor, since he was a young solicitor in the late Herman Good's office and that is a number of years ago. He was a gentleman then and has remained so. I am very sorry to see him leave because he will be a loss not only to the Labour Party but to the nation. He has been an excellent Minister and one of the finest I have seen in this House. That is not just speaking from the experience of the past ten years I have been a Senator but from the years before that when I frequently visited the Oireachtas and dealt with many Ministers of all parties. The Minister has been excellent in his job and I am sorry to see him leave. I wish him and his wife luck, happiness and good health for the future.

My association and the people I represent are reasonably happy with the Bill now it is amended to give protection to publicans and their staff. One reads every day in the papers of barmen being attacked by thugs, of which we unfortunately have too many. This legislation gives a measure of protection to them.

Ms O'Sullivan

I welcome this badly needed legislation because, although we have made many improvements and progress in society, there are still areas of discrimination and I am glad these are recognised in this Bill.

Like Senator Bohan, I too wish the Minister well in his retirement and congratulate him on the excellent work he has done, especially as Minister for Equality and Law Reform. He will have a monument to his memory in the legislation he has steered through with determination.

I welcome this Bill. It protects against discrimination in a range of areas outside employment such as housing, service in shops, pubs, hotels and guest houses, access to education, sale of land, registered clubs and access to transport such as trains and buses. There are a number of areas in which discrimination will not be allowed on the grounds of sex, family status, marital status, membership of the travelling community, sexual orientation, religion, ethnic background, nationality, age, disability and skin colour. The issue of skin colour is topical. I watched Tiger Woods win the US Masters at the weekend. It was said that seven years ago he would not have been allowed to play golf on the course where he won. It is not just in this country where we are overcoming discrimination problems. The Bill also addresses harassment based on these grounds and provides a method of redress.

Much focus was placed on publicans' problems with the Bill and on the issue of travellers. It is interesting that the publicans seemed to disappear like melted snow as soon as their problems were solved. They sent letters to us, phoned us and frequently visited our offices for a number of months. I presume they are now satisfied with the Bill because I have not heard a word from them for a while.

Mrs. McGennis

Senator Bohan did a good job on their behalf.

Ms O'Sullivan

I presume the obstacles have been removed. I welcome the points made by Senators McGennis and Neville in relation to the broad issues of social exclusion and equality. They are not dealt with in this Bill but it is important that they are raised. Senator McGennis outlined the problems which are increasingly faced by many communities. There is a need for societal and attitudinal changes in addition to legislative changes to deal with the rights of those excluded from aspects of our society. In some cases this is due to inadequate income. However, there is now legislation in place to deal with discrimination.

Perhaps we do not discriminate in broad areas. However, there is still a level of discrimination and exclusive attitudes which we might not even recognise. The NIMBY syndrome is a good example. People express liberal views on issues such as travellers; however, if a halting site is proposed in their own backyard many will object. They may find legitimate reasons to oppose the halting site but there is often an undertone of discrimination. We must all examine our attitudes.

Schools have a role to play in changing attitudes. I do not know if there are specific school programmes dealing with inherited attitudes. Some programmes have been introduced dealing with issues which are more social than academic, such as drugs. Perhaps we need to consider a programme dealing with discriminatory attitudes. This might be included in teaching training modules.

I welcome the fact that sexual harassment is dealt with in the Bill. I also welcome the inclusion of access to public transport for the disabled. These are the practical problems which the disabled confront and they often feel they are not addressed, particularly in smaller stations and on shorter routes. One often sees changes in facilities used by a large number of people. These changes should be implemented in the less used facilities where there is an equal need for access.

The Director of Equality Investigations is an important post. The Minister stated that the director could use the mediation mechanism in addition to the heavy hand of the law. This may prove to be a useful mechanism. Most people will wish to cooperate with this legislation. If breaches are pointed out to people they will want to cooperate with the Bill and the mediation mechanism may prove most useful for this purpose.

Senator O'Toole spoke about section 8 of the Bill. None of us is particularly happy with that section. I do not know whether anything can be done at this stage. Section 8 deals with the refusal of a school to admit an individual of a different denomination on the grounds that this is necessary to support its ethos. I do not know if this section will be used very much.

How will this Bill affect the Private Rented Dwellings Act? Two years ago a gay man, whose partner had died, lost a case in which he was seeking to stay in a house which had been his home for 30 years. The house was in his late partner's name. If the couple had been a man and woman there would have been no problem. Will this legislation provide protection for people in such circumstances? This is an example of discrimination.

How will this legislation interact with the Employment Equality Bill? We cannot address this properly today in light of the referral of the latter Bill to the Supreme Court. However, the two Bills are somewhat interdependent. This is particularly the case in relation to the post of Director of Equality Investigations, which is established under the Employment Equality Bill.

Two months ago I suggested to the Cathaoirleach that some of us might challenge his position on the Oireachtas rugby team when this legislation came into force. From reading this legislation I find that this will not be the case. There are exemptions and it will be possible to form all male or all female teams. I am glad that I will not have to rise to that challenge.

I welcome this legislation. It has been requested for a long time by the various groups involved. I have had representations on behalf of travellers, and they need this legislation. Sometimes we are discriminatory without intending to be or realising that we are being so. People confuse rights and responsibilities. One must give people rights. Only then can one talk about responsibilities and work out how they should be exercised between various groups. The important point is that all sectors of society should have equal rights and our legislation should leave no doubt that this is the case.

Minister for Equality and Law Reform (Mr. Taylor)

I thank Senators for their interesting and generally constructive contributions to this debate. The significance of this measure is that, for the first time, it gives legal protection to those who are discriminated against outside the workplace. Legislation on these lines has been sought for a considerable time by groups representing people who have experienced discrimination, including women, travellers, gays, lesbians, people with disabilities and racial minorities. Many of these have written or spoken to me about the vital importance they attach to the enactment of equal status legislation.

I received a letter recently from Mr. Christopher Robson, on behalf of the Equality Campaign, a broad coalition of interests who have been pressing for equality legislation. The relevant section of the letter reads:

Our campaign includes people who have been fighting for the Equal Status Bill for nearly ten years and who have been hugely encouraged at the progress that has been made in the last two months towards its enactment. We are writing now to urge you and the Government that the Oireachtas should pass all Stages of this Bill as rapidly as possible. We appreciate that the reference to the Supreme Court of the Employment Equality Bill may also have implications for the Equal Status Bill. But if the Equal Status Bill is now completed there is a very good chance it may be passed into law either directly upon its enactment or in some weeks time if the Employment Equality Bill is judged constitutional (as you may know though some groups in our campaign still had reservations about the modified section 37, there was strong agreement that the Bill as a whole contained the most powerful and essential protections.) If, however, the Equal Status Bill is not passed now, then there is a very much greater chance that all that painstaking work by so many people may be set at nought. This Bill should and most probably will instead stand as a proper tribute to your own work as you prepare to leave office.

I thank Senator Bohan and others for their kind personal remarks which I appreciate. I found Senator Bohan and his vintner colleagues constructive in the many discussions we had on this Bill. Senator Bohan suggested the two month notification period might be reduced to two weeks. A period of two months strikes an appropriate balance between giving the complainant enough time to make the notification and not having so long a period that the publican or other respondent would have forgotten about the particular incident.

Senator McGennis was concerned that the exception in section (6)(2)(e) might affect the community rating principle in health insurance. It does not. This is governed by other legislation which requires providers of such insurance to apply community rating.

I assure Senators that the reference in this subsection to what is reasonable and relevant will in no way let insurance companies off the hook. The question of what is relevant or reasonable will not depend just on the word of the company alone, but will be determined in each individual case by the Director of Equality Investigations.

Senator McGennis raised the right to equal pay and referred to the notion of a hypothetical comparitor. This Bill does not deal with employment matters, which are dealt with in the Employment Equality Bill. The Senator also asked about provisions for housings and details of the rationale of the various exemptions allowing bodies to provide different treatment to persons based on family size, status, etc. There is a need for local authorities and approved voluntary housing organisations such as social housing landlords to be reasonably flexible in allocating dwellings in order to ensure that purpose built and designated dwellings — for example, elderly persons' dwellings and accommodation for travellers, etc. — continue to be used for their original purpose. To ensure an appropriate social mix in their housing estates, flexibility is necessary in the following circumstances: family size — statutory schemes affording additional priority to larger families; family status — in order to promote adequate social mix, local authorities and voluntary bodies may have to ensure a particular type of family does not predominate in one estate; and age — it would not be reasonable to allocate supported elderly persons' accommodation to families. This degree of flexibility by way of this enabling provision has to be there as I hope Senator McGennis will agree.

Senator McGennis also asked about the catchment areas in education. This is a matter for the Minister of Education. The Bill deals with discrimination on specified grounds only and the area of residence of a particular family is not one of those grounds.

Senator O'Toole queried the provisions of section 8(3)(b) and their compatibility with the Constitution. Section 8(3)(b)(i) was drafted following careful examination by the Attorney General of all the issues involved. The section gives a denominational school the right to refuse to admit someone who is not of that denomination where this is essential to maintain the ethos of that school. This right of refusal is intended to cover the situation where a minority school, although taking in all the small number of applicants from its own religion, would lose its character as a denominational school if it accepted all the other applicants for which it had, or could, make places. I am satisfied the wording of the section is constitutionally sound and strikes an appropriate balance between the rights of parents and those of denominational schools.

Senator O'Toole also referred to the entitlement of Catholic parents to send their child to a Protestant school. I do not know how the Senator would expect a Protestant school to keep its denominational character if it was obliged to take pupils without regard to their religious affiliation. Should such schools be swamped by those who are not co-religionists? How could a school be regarded as Protestant if 60, 70 or 90 per cent of its pupils are not of that religion?

Senator O'Toole referred to various articles of the Constitution in support of his arguments. I do not accept this selected use of the Constitution. Following careful examination of this issue, I was advised that the provisions as worded not only do not conflict with the Constitution but, on the contrary, are necessary to ensure compliance with the Constitution.

This Bill never had the objective of the dismantling of denominational education. However, it requires denominational schools to justify particular instances of discrimination or exclusion and the school's reasons will be reviewed by the Director of Equality Investigations. This in no way changes the status quo or gives any extra rights to schools. It requires schools to justify themselves in any given case.

I was particularly intrigued by the lack of opposition or comment from Senator O'Toole to section 8(3)(b)(ii) which has a virtually identical exception regarding schools catering for persons of a particular nationality. Is he saying it is in order to have a Japanese or German school but not a Protestant school?

Senator O'Toole's reference to Northern Ireland was particularly misconceived. If we took the course outlined by him and, in effect, brought about the end of schools catering for minority denominations we would send a very negative sign to people in Northern Ireland where Catholic schools exist with substantial though not full state funding. We would be giving a clear message that we reject diversity and aimed to assimilate minorities. I do not agree with this course and I believe the House does not agree to it.

I thank Senators for their contributions. A number of detailed comments on particular issues were made and I took forward to discussing these issues on Committee Stage.

Question put and agreed to.

Committee Stage ordered for Thursday, 17 April 1997.

An Cathaoirleach

When is it proposed to sit again?

Mr. Neville

Tomorrow at 10.30 a.m.

Sitting suspended at 5.15 p.m. and resumed at 7.30 p.m.