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.