Employment Equality Bill, 1997: Report and Final Stages.

I remind Members that a Senator may speak only once on Report Stage except the proposer of an amendment, who may reply to the discussion on the amendment. Each amendment must be seconded.

I draw Senators' attention to a correction to the amendment list. The asterisk should appear on amendment No. 10, not amendment No. 9.

I welcome the Minister of State, Deputy Mary Wallace, to the House. Perhaps she would take on board my comments on the Order of Business on the delay in receiving the Report Stage amendments. I was expecting to receive them on Tuesday but I believe they were not tabled until late yesterday evening. That is not acceptable from the point of view of the business of the House and dealing comprehensively with the Bill.

I realise I tabled many amendments to the Bill and probably caused people a lot of work but I have attempted to treat the Bill with the respect it deserves. However, I want to complain about the delay with the amendments. It would have been far better if they had been received earlier and could have been given greater consideration. I am also disappointed at the lack of amendments particularly in view of the Minister's comments last week. I had been particularly expecting amendments on the disability issue. Having put that on the record, I will leave it at that.

The Government amendments were received in the Seanad Office at lunchtime yesterday. In this case, I exercised my discretion, as provided for in Standing Orders, and accepted amendments, including Government ones, at shorter notice than the two days required under Standing Orders. This was to enable the debate on the Bill to go ahead today as ordered. However, I firmly believe that would be more beneficial for the efficient working of the Seanad if all amendments, including Government ones, were tabled within the required time limit.

I thank you, a Chathaoirligh, for that clarifying remark. I will leave it at that. We have all made our point in that regard.

I move amendment No. 1:

In page 9, line 34, after "divorced" to insert ", cohabiting".

This a slightly shorter version of the amendment I tabled on Committee Stage. I have taken on board what the Minister said about the legal consequences of annulments with regard to this section. He repeated more than once that an annulment has a legal consequence and, as a result, there is no need to insert it in the Bill and that the section would cover people whose marriages have been annulled. However, I do not accept that the Bill covers this group of people who are, in effect, cohabiting. There was a debate on this on Committee Stage, as the Minister of State knows. It was made very clear from this side of the House that a group of people are not covered by the definition in this section of the Bill by virtue of the fact that they are cohabiting and the law simply does not allow for them to be married. As a result the Bill is not as comprehensive as it should be.

I am disappointed to see that there is not a positive response to this, but we have the possibility of seeing one today. I urge the Minister of State to take this matter on board. While this legislation is comprehensive, the amendment is being moved in the spirit of improving it. It reflects thinking which was generated in the Dáil debates on the previous legislation, particularly by the then Deputy Helen Keogh, who made strong arguments about this issue at that time.

They were not accepted but that does not mean the Minister of State and the Government cannot take the arguments on board now and, in doing so, actually improve the Bill by making it more comprehensive and placing on the Statute Book legislation which affords protection to everyone.

I second the amendment. It seeks to insert a single word, but it is of extreme importance. We went into the reasons for this in great detail on Committee Stage and I believe they are compelling. In the light of clarifications by the Minister on Committee Stage, the absence of the word "cohabiting" from the legislation means that in a number of categories of lifestyle, which are commonplace and which we accept are now part of modern Irish life, people are wide open to discrimination by employers.

Single heterosexual people who happen to be cohabiting are not covered by this legislation because the very fact of cohabitation as a form of de facto family unit is not protected by the legislation. The Minister made this clear on Committee Stage.

Equally significant is the fact that while the legislation prohibits discrimination against people on the grounds of their sexual orientation, it does not prohibit discrimination against people whose sexual orientation is different from that of the majority and who are not celibate — in other words, people who are involved in a sexual relationship with a person of the same sex. The only way that can be done in any formalised way is by cohabitation. There is nothing in the legislation which prohibits discrimination against sexually active homosexuals. It is a form of prohibition that is completely acceptable to the majority religion in the State and which says one should not discriminate against people because of their sexual orientation but which does assert that it is perfectly acceptable to discriminate against people who are homosexual and not celibate.

The admirable intention of this Bill, to prohibit discrimination against people because of a different sexual orientation, will only apply to people who are gay and celibate unless we change it by introducing the word "cohabitation". I have not heard a single plausible argument against this, based on the Bill's intent. One begins to think there is a subtext of deference to the majority religion's view of what is and is not acceptable.

If we are not prepared to say explicitly what the intent of this Bill is, and if people will be discriminated against because they are homosexual and sexually active, then the Bill is meaningless. If people will be discriminated against because they are heterosexual and cohabiting, then the Bill is also meaningless.

What will happen to people who have been divorced under State law and who choose not to remarry because their church will not allow them to, yet they choose to make a new family with a second partner? What will happen to such people who are not married in the eyes of their church but are married in the eyes of the State? In the view of the church they will be cohabiting and, in the immortal phrase, "living in sin". Unless the word "cohabitation" is inserted in the Bill, as Labour Senators have proposed, all these possibilities will arise. Problems that will arise quickly in the operation of this legislation are being ignored. The Government's response in saying it cannot do everything is most disappointing.

I listened carefully to the Minister's arguments on Committee Stage and, having heard them, I looked up some statistics. The number of children born outside marriage is constantly quoted in the newspapers as 25 per cent in the Dublin area and 20 per cent for the rest of the country. However, I also consulted the figures for the number of marriages within the country. I found the rate of marriage has dropped dramatically, which means there are many unmarried people in stable relationships who have families. As Senator Ryan said, they may not be in a position to get married because they have been divorced, or it may simply be that they are not getting married in the first place. The annual rate of marriages has fallen from 22,000 ten years ago to about 16,000 last year. That dramatic drop demonstrates there is a lifestyle in the country which we are not used to dealing with. Unless we insert the word "cohabiting", the Bill will not protect the considerable number of people who are involved in stable relationships and whose children are part of the family unit.

I speak as one who professes to be a practising Catholic, but I would not regard myself as a perfect one. I am, perhaps, as faulty a practising Catholic as one could find.

I am worse.

I have no difficulty in being criticised as such, however. This is very relevant to the amendment and to the sentiments expressed by Senator Ryan and, last week, by Senator Norris. I did not rise to the bait on that occasion, but I am compelled to do so today. Neither do I have any difficulty in people justifiably criticising a majority or minority religion where there is clear justification for such criticism. Indeed, last week I subscribed to some of that criticism, which I felt it was justified within the context of the debate on particular amendments. I am taken aback today again by a further attempt by Senator Brendan Ryan to have a swipe at the majority religion in this country. He stated that it was his considered view that there was a hidden agenda, that the majority religion here did not want the word "cohabiting" inserted in the Bill and that the Minister was stalling because that was the real agenda. It appears to me that Senator Brendan Ryan and others are using every opportunity in this House to take a swipe at the majority religion. Frankly, it does not do them or this House justice. If the majority religion or any other religion deserves criticism in this House I would support them. I try to look reasonably at every situation, but some of the sentiments expressed last week were totally unjustified and uncalled for. The sentiments expressed today by Senator Brendan Ryan are equally uncalled for and I would prefer to hear him withdraw them, but I am sure he has no intention of doing so.

It is wrong for Senator Brendan Ryan or any other Senator to state that last week the Minister acceded to certain views to which they referred today. The simple facts are that the Minister made it abundantly clear last week that there is no legal status for cohabiting, that in law a person is either married or single. He stated that a person who is not married is regarded as single, whether by reason of never having been married, being divorced, having a legal separation or moving away from and disowning their partner. Such a person is either de facto single, de jure single or single in both contexts.

If the Senators believe there is a compelling argument for the recognition of cohabitation in law for reasons which pertain to this Bill or for other reasons, then they would have a right to put that compelling argument. However, this Bill is not the appropriate mechanism by which to promote that argument. It is, perhaps, one of them, but it is certainly not the vehicle by which one gives legal status to cohabiting. Even though Senator Henry's research, which clearly proved to her that cohabitation was becoming increasing popular in Ireland, may be correct, this Bill is not the vehicle to give legal status to cohabiting.

This Bill is about equal opportunity to employment and promotion. For the Minister to attempt a pre-emptive strike on all other Departments by saying "I now deem, in the context of the Employment Equality Bill, 1997, cohabiting to have legal status" would be unprecedented. To some Senators there would be nothing wild or irresponsible about that but in my view, it would be very irresponsible because the question of cohabiting has much wider and deeper implications than in the context of the Employment Equality Bill, 1997. I hasten to assert that to the Senators opposite, who should take that on board carefully. There are many other wider implications down the line once one gives legal status to cohabiting.

Just as the Senators opposite have the right to demand the inclusion of cohabiting here, I equally have the right to demand — I am not, indeed, indicating my opposition to granting legal status to cohabiting — a comprehensive debate on the implications of granting legal status to cohabiting. I do not believe that my right to demand such a debate on the wider implications could be respected within the context and narrow scope of this Bill, broad as it is in the context of what it proposes to do.

Mr. Cregan

I listened to Senators speaking about relationships and, most importantly, stable relationships. I do not see why the word "cohabiting" should be inserted in a Bill such as the Employment Equality Bill. It would not be appropriate. Equality is relevant to every individual; it is about every person being treated equally when it comes to their entitlements. We fought very hard for that, and rightly so.

Senator Henry made strong points about what is happening in our country. I know what is happening to our children, particularly as regards relationships and children born outside of marriage and to single persons. Is this relevant to this Bill? I do not think so. However, this subject has been raised and I want to say something about it.

Senator Liam Fitzgerald made a very strong point about the insertion of a reference to cohabitation in a Bill. As a father of seven I am very old fashioned on this issue. We should be careful in what we say. Are we encouraging people to enter into common law relationships because cohabitation is a common law state? In other State areas, such as social welfare and housing, recognition is given to common law partners whether we like it. The reason I do not agree with it is that it creates the problem to which Senator Henry referred. More than 25 per cent of children are born outside marriage but if one were to look at the true figure, I believe it would be nearer 40 per cent, if not 45 per cent. That is not a nice thing to say. If some people want to encourage that in a so called Catholic society, or in a liberal society, I do not. I do not believe in it. We should not encourage including the word "cohabitation" in legislation just to satisfy somebody in the context of an equality Bill.

I would like Senator O'Meara to think about what we are trying to do. In theory she is trying to be nice but in practice she would be creating massive problems because she would be sending the message that everybody in such a relationship has legal status. Are we saying people would not use the word "cohabitation" when it suited them to gain entitlement to State benefits? Are we saying that it is not being done at present? Are we saying that less rent is being paid for local authority housing because people say they are in common law relationships when they are not — the man probably comes home at 9 p.m. and gone by 9 a.m.? Are we saying that is not happening? Who is paying for this? The taxpayer of course. We should be very careful what we insert in Bills.

I hope I am being realistic. Stable relationships are very important when it comes to the family unit. A stable relationship is best. What is a "stable relationship"? It is the married relationship because it is not easy to dissolve a marriage.

In the interests of what has already been said here this morning about the protection of our children, are we asking which child — the child born within marriage or the child born within a relationship outside marriage — is the better child? Does Senator O'Meara want me to agree to insert something in the Bill which will undermine that? I will not do that and I do not think the House should do it. We have a duty to make sure that all children are treated equally.

Senator O'Meara should listen to what I am saying. I am not trying to talk down to anybody; I would not do that. I have often said that perhaps I should not be married, and my wife has probably said it more often than I, but that is not the point. It is very important that we are seen to be building up something stable and constructive, which marriage is.

Senator Ryan spoke about couples who want to cohabit, whether they are two men, two women or a woman and man. However, while I am not necessarily saying these relationships are wrong, are we saying that every such relationship must be recognised as stable and should have equal rights in law? We cannot do that because everyone would take advantage of it.

I have heard people use the term "common law" to say they are living with a certain person when they are not. I have been a local government member for many years, as has Senator Fitzgerald and others. The situation has arisen at local government level where two people have two houses although they only live in one. The taxpayers must pay the £80,000 or £100,000 for the other house which is not being used because we recognise their common law status. We must be very careful because people are well able to use the structures we set up.

This Bill should recognise that every person has equal rights. However, we should not undermine the stability of marriage in the Bill. Senator Fitzgerald is right that there are other areas in which this can be addressed. We got the message during the divorce referendum, which was passed by a margin of only 0.2 per cent and not 52 per cent. I could not believe the result was so tight, and I am in favour of divorce. We must be careful about what we are doing because the Irish people are quite conservative when they want to be. I ask the Senator to reconsider because this amendment might undermine this very important Bill.

I thank Senators for their comments. As the Cathaoirleach pointed out, the Government amendments arrived in the Seanad Office at 12.30 p.m. yesterday and we received Opposition amendments up until 5 p.m. yesterday. There was extensive debate on the Bill in the House last week. We have done everything we possibly can since then to address a number of the issues raised. We tabled at least ten amendments in response to queries raised by Senator O'Meara on Committee Stage. It must be accepted that when the Government tables amendments they must be cleared legally. Those amendments were cleared and were in the Seanad Office by lunchtime yesterday; it is incorrect to say they arrived at 7 p.m. yesterday.

As Senators Fitzgerald and Cregan pointed out, this amendment is unnecessary. It is out of place to introduce a new marital status which does not have a legal basis in this Bill. An individual who is cohabiting is already protected under one of the categories covered by the present definition of marital status in the Bill. As the Minister, Deputy O'Donoghue, pointed out last week, every individual has a status which could be defined as single, married, separated, divorced or widowed. These categories already have a basis in law. Therefore, the definitions currently in the Bill also apply to people who are living together, irrespective of the nature of that relationship. For that reason, I do not propose to accept the amendment.

In regard to the point made by Senator Henry about 25 per cent of children being born outside marriage, those children are born to people who are single, married, separated, divorced or widowed — they cannot be born to anyone else. Therefore, they are born to one of the categories included in the Bill. People who are cohabiting are single, married to someone else, separated, divorced or widowed. There is no legal basis to add another category. Unfortunately, therefore, we are not in a position to accept the amendment.

I am disappointed the Minister is not accepting the amendment. I listened carefully to what Senator Cregan said but I do not believe inserting the word "cohabiting" in the Bill will encourage or discourage anyone in regard to how they conduct their relationships. I am concerned about ensuring the widest possible number of people, whom I know the Minister wants to protect, are protected in the Bill. The spirit of the legislation is to be as comprehensive as possible and the amendment is an attempt to ensure that happens.

Various speakers spoke about the introduction of a new marital status or giving recognition to the status of cohabitation. We effectively do that already. The social welfare code and, as Senator Cregan pointed out, local authority housing provision have recognised this status for a number of years.

Senator Henry referred to the fact that an increasing number of people are choosing to have children outside marriage for a number of reasons. That has nothing to do with debates in the House or words we use in legislation, particularly in an Employment Equality Bill. It might have some impact on a Social Welfare Bill or the construction of the social welfare code. However, what kind of signals are we sending to younger women about marriage if so many of them choose to be single mothers? That is something which, as a parent, I have wondered about on occasion. What kind of society are we constructing where some women feel they have better status in the community outside marriage than inside marriage?

Mr. Cregan

They think they do.

That is important too. I do not believe this Bill will have that effect. We are attempting to protect everyone, but are we sending out the wrong signals in that regard? Senator Cregan and I are probably not that far removed from each other's thinking in that regard.

The aim of the amendment is to ensure the greatest number of people possible are protected under the Bill. This is an anti discrimination Bill which is designed to provide people with an avenue if they feel they are being discriminated against on the basis of their status. There is a growing number of people whose status, from their point of view, cannot be accurately described as single, married, separated, divorced or widowed but only as cohabiting. They are not protected under the Bill if they are discriminated against on the basis that they are cohabiting. We know it is possible for that to happen.

This is not a backdoor attempt to give legal recognition to the status of cohabitation. It is an upfront attempt to ensure everybody the Bill wants to protect is protected. There is a group who can only be described as cohabiting and cannot be accurately described as single, married, separated, divorced or widowed. That is what the amendment is attempting to achieve. I am disappointed that, despite all the debate and arguments, and despite the fact it has opened a much wider debate than was intended, although that is no harm, the Minister still chooses not to accept what we consider to be a very constructive amendment.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Amendment No. 2 in the name of Senator O'Meara is also a Government amendment.

I move amendment No. 2:

In page 11, line 11, after "order" to insert ", other than under section 1(2),".

I am pleased the Minister has been able to accept this amendment and some of my other amendments. I accept that the Minister and his Department have taken on board a number of suggestions we made last week. This is a technical amendment. I am disappointed that some of the non-technical amendments have not been accepted. I know we will debate disabilities shortly.

Amendment agreed to.

An Leas-Chathaoirleach

Amendments Nos. 3, 4, 18, 19 and 20 are related and may be discussed together.

I move amendment No. 3:

In page 12, line 29, to delete "traveller" and substitute "Traveller".

These amendments attempt to describe a traveller using a capital letter "T" when using the word "traveller" in the context of legislation to describe a traveller — in other words, a proper noun. This is a very important amendment. A fortnight ago I attended a conference on racism organised by the National Union of Journalists which was addressed by members of the travelling community and refugees. Racism is at the core of this Bill because it seeks to outlaw discrimination on the basis of race, among other things. We know we have ignored incidents of blatant racism inflicted upon the travelling community. I welcome the fact that we now recognise blatant racism in relation to refugees and identified a racist group. This has brought the issue out into the open. For many years members of the travelling community have struggled with a situation where they were subjected to discrimination but nobody every described it as racism because they were Irish and did not have a different skin colour.

One of the issues that arose during the conference, and is part of the NUJ's code of ethics, is the use of the word "traveller" either with or without a capital "T". The travelling community consider it an insult and patronising that they are not recognised as an ethnic group as symbolised by the use of the word traveller. I hoped the Government would accept my amendment, if only in deference to the views of the travelling community, which has been very badly treated by the wider community in many instances down through the years. This is the first legislation which gives a legal remedy to members of the travelling community, a place where they can go, a State agency with strong powers to root out discrimination and to ensure that the injustices which they have suffered in the past will hopefully be rooted out, at least in a legal sense. The signal being sent out by this Bill is very important and my amendment is vital because it reflects our thinking in that regard. We will not get another opportunity to amend this Bill. I cannot imagine reopening this legislation to make a small technical amendment such as this. This is our opportunity to do it and there will no legal consequences as a result of it. I am very disappointed the Minister of State has not taken this amendment on board and I urge her, even at this late stage, to accept it.

I support this amendment. Draftsmen, particularly Government ones, sometimes fail to appreciate the importance of symbols and symbolic statements which have no legal affect. They are sometimes insensitive in their use of language. It is not a criticism but it is a different viewpoint. One of the roles of the political legislative process is to identify where technically correct drafting contains an unintended offence. This is a simple example of it. This is an unintended offence and the proposed amendment can do a lot of good. There is no legal significance in the change but it has a symbolic significance. Therefore, there is no reason why you cannot accept this amendment other than for the fact that people believe they have done a good job. This amendment can be accepted with no implications. It would not undermine the family or society. We are introducing new principles. We are simply saying that when we describe minority groups in our society we should describe them as they wish to be described, not as we see them. The travelling community has made it clear that the correct way to identify them — and this is consistent with the general view on minority groups — is not as a travelling community who fly from airport to airport but as a unique Irish ethnic minority, which is what they are. The most appropriate way to make that distinction is by inserting a simple and symbolic capital letter.

As Minister O'Donoghue stated on Committee Stage, the terminology used in the Bill is as a result of a request from the NAPF to change the term "travelling community" to "traveller community". The use of "t" in the lower case is entirely consistent with other legislation, including the Housing Act, 1988, and the Unfair Dismissals (Amendment) Act, 1993. We are not disposed to accepting these amendments. Senators may think it is simply a matter of changing a letter but it has implications for a lot of other words used in legislation. We are talking about legislation convention. A capital letter "T" in this case might be indicated in a report or in some other non-legislative document, but it is a different matter for a Bill or an Act because it is a legislative convention to minimise the use of upper case letters except in relation to a small number of terms where precedent dictates the practice. For example, when referring to divorced people do you use a capital letter "D"? Do you use a capital letter "D" when referring to people with disabilities? This might seem a small matter but there is legislative convention. I have already mentioned the two Acts where the traveller community is referred to using the letter "t" in the lower case. There are many other groups who could make the same point. If this amendment was accepted it would affect all legislation. For this reason I cannot accept the amendment.

Just because the Minister says this has never been done before, that it might be inconvenient and somebody else might look for a change, is not a good argument against this amendment. I am very disappointed with the Minister's response. I hoped we had a positive, forward thinking attitude towards the traveller community, but this shows we have not. Are we not to do something simply because of legislative convention?

This is new, reforming legislation which is designed to push out barriers and change things. We are trying to ensure that members of the travelling community feel that there is now legal recognition that what they are suffering is discrimination and that the State is committed to rooting it out. Yet we insult travellers by not listening to what they are saying. I accept that the Government has listened to the views of the NAPF and has changed the words that have been used in the past. We changed our common usage of the word "itinerant" at the request of the travelling community. There was no plea of legislative convention when that change was made. The Minister's argument is very weak. No legal consequences flow from this amendment but strong symbolic consequences do. I have no doubt that this question will be debated when the Bill goes to the Dáil and I am disappointed with the Minister's response.

Amendment, by leave, withdrawn.
Amendment No. 4 not put.

I move amendment No. 5: In page 12, between lines 31 and 32, to insert the following:

"(j) that one comes from a background characterised by social, educational, income or other disadvantage and the other does not (`the disadvantage ground');".

I wonder if it worth my while standing up. If we cannot change a small "t" to a capital "T" can one expect change on a major issue such as this? I am concerned that the consequences of the amalgamation of the former Departments of Justice and Equality Law Reform has not been beneficial. I detect the ethos of the Department of Justice descending on what was a reforming Department. My experience tells me that the Department of Justice has always been secretive, anti-reformist and preserves to itself any privilege it ever had — even that of deciding whose name is to be written with a capital letter.

Ours is one of the most class-ridden and least socially mobile countries in western Europe. An ESRI study has shown that Britain, Sweden and France have more socially mobile societies than we do. We like to think of ourselves as a classless society, but we have rigid class structures which make it extremely difficult for people to move from a disadvantaged class background to another level. We do this through our education system and our employment procedures. This amendment will not have a great effect. I am sure that the Minister will say that it would be difficult to enforce. The national anti-poverty strategy, to which the Government is committed, includes a commitment to the elimination of poverty and the discrimination associated with it in all Government policy.

The practice of making employment decisions on the golf course is widespread. In many areas of the financial sector discrimination is commonplace. In my own city, attendance at one of two fee-paying boys' schools dramatically improves one's employment chances in a number of local businesses. As a matter of principle, where all other things are equal, it should not be acceptable for an employer to choose one employee over another on the basis of background. I do not demand positive discrimination. We must, however, send a signal to employers that discrimination based on background, parents' background or place of residence, is not acceptable. Members who hold constituency clinics will know of talented young people who are forced to give false addresses in order to get job interviews. These young people know that if they give the wrong postal address many employers will not even bother to call them for interview. We must begin the process of signalling to employers that this is no longer tolerable.

I support Senator Ryan's amendment. I made similar points when we debated the earlier Stages of the Bill. I have nothing to add except to ask the Minister what her objections are to the addition of these few simple lines to this section?

I, too, would like to support Senator Ryan's amendment, which is very much in the spirit of the legislation and will send out a signal to employers. We know that a job applicant's address is, unfortunately, a factor in his or her success, even in getting an interview. Many good people are lost to employers as a result of this attitude. Perhaps such employers do not deserve these employees. This amendment is in keeping with the spirity of the legislation as drafted by the former Minister. I agree with Senator Ryan when he wonders if the ethos of the Department of Justice has strangled the former refoming Department of Equality and Law Reform. This is a great pity and is to be deplored.

I expect the Minister will say that this amendment is not consistent with other legislation, not in keeping with legislative convention or unnecessary. If she does, I will be disappointed although not surprised. I urge the Minister to accept this amendment.

It is not possible to accept the amendment at this stage. The policy and drafting implications of this proposal to extend the legislation to cover the grounds of social, educational, income and other disadvantages can be considered when the legislation is reviewed in two year's time.

I hope Senator O'Meara will accept that this ground was not included when the Bill was drafted in the Department of Equality and Law Reform by the former Minister.

We are the only country in Europe which does not have anti-discrimination legislation. We have been attempting to have such legislation passed for four years. I am anxious to have anti-discrimination legislation on the Statute Book before the end of 1998. The former Minister did not succeed in having this legislation passed and I do not accept the remarks made by Senators concerning the new Department of Justice, Equality and Law Reform. Points which are raised now will be examined during the next two years and may be found to be acceptable at the two year review.

By virtue of a slight error on the part of the electorate of the NUI, I was not a Member of the Seanad in the period when this legislation was previously debated and I offer no apologies for raising this issue now. In the period since I first tabled this amendment, the Department of Justice, Equality and Law Reform has not examined its implications. The fact that the Department requires two years to make such an examination is difficult to understand.

On Committee Stage I stated that as it stands this is essentially a middle class Bill and it caters for the concerns, which are close to my political convictions, of middle class people. However, the Bill refers to class in our society. Throughout my political career I have stated that people are more disposed to encourage religious integration in schools than they are to encourage social integration. The same people who demand religious integration in schools resist the idea of social integration. Social integration and social equality are threatening concepts to those in positions of privilege. They are not actually threatened but they believe themselves to be because one or more avenues of privilege will be closed to them.

One of the avenues of privilege which remains open to people is the knowledge that because they are well off their children will have access to preferential treatment in many areas of employment. Saving the presence of Senator O'Donovan, does anyone believe that the vast majority of solicitors' staff are not influenced by the background of the graduates they recruit? With regard to the profession in which I work, engineering, does anyone believe that if two people, the parent of one of whom is a member of the same golf club as the prospective employer while the other's parent is a member of the local pitch and putt club on the northside of Cork, seek employment in a consultancy firm, that the average employer will remain unprejudiced? I accept it would be difficult to enforce the provisions suggested by the amendment. However, it would be worth putting it in place and beginning the process of informing employers that they should not act in that way because it is bad for them and for society in general.

Social discrimination has served the country badly because it has often placed people of lesser competence into positions of significance. People of greater competence who lack a certain social background have not been able to break through glass ceilings other than those to which frequent reference is made.

My reason for referring to the diminishing ethos is not related to the amendment. This is a major amendment but I hope we can proceed with it. I believed there was something wrong with the ethos because the change from a small letter to a capital letter seems to defy the Department's reforming zeal.

It is important to consider the grounds on which the Senator's amendment are based and his inquiry regarding why this cannot be agreed in the space of one week. The amendment refers to "other disadvantage" and is designed to prohibit discrimination of the grounds of a person's address. We must consider the broader aspects of this issue. For example, is a person who believes they did not obtain employment on the basis of their address in a position to take a court case on foot of the legislation? How do we define "other disadvantage"? Should that definition be extremely broad in its meaning? The Senator must understand that we need time to consider the implications of this matter. I am willing to give it the necessary time and consideration but I am not willing to delay this important anti-discrimination legislation, which we have been trying to place on the Statute Book for some time.

Do I have the right to reply to the Minister of State's peculiar statement?

An Leas-Chathaoirleach

The Minister of State was merely clarifying the position.

Amendment put.
The Seanad divided: Tá, 14; Níl, 22.

  • Burke, Paddy.
  • Coghlan, Paul.
  • Connor, John.
  • Coogan, Fintan.
  • Cosgrave, Liam.
  • Doyle, Avril.
  • Doyle, Joe.
  • Henry, Mary.
  • Manning, Maurice.
  • Norris, David.
  • O'Dowd, Fergus.
  • O'Meara, Kathleen.
  • Ridge, Thére se.
  • Ryan, Brendan.

Níl

  • Bohan, Eddie.
  • Callanan, Peter.
  • Cassidy, Donie.
  • Chambers, Frank.
  • Dardis, John.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Liam.
  • Fitzgerald, Tom.
  • Fitzpatrick, Dermot.
  • Gibbons, Jim.
  • Glynn, Camillus.
  • Hayes, Maurice.
  • Kett, Tony.
  • Kiely, Rory.
  • Lanigan, Mick.
  • Leonard, Ann.
  • Mooney, Paschal.
  • Moylan, Pat.
  • O'Brien, Francis.
  • O'Donovan, Denis.
  • Quill, Mairín.
Tellers: Tá, Senators B. Ryan and Norris; Níl, Senators T. Fitzgerald and Quill.
Amendment declared lost.

Amendment No. 6 is in the name of Senator O'Meara and has also been tabled by the Government.

I move amendment No. 6:

In page 12, line 34, to delete "who".

This is a drafting amendment.

Amendment agreed to.

An Leas-Chathaoirleach

Amendments Nos. 7 and 8 are related and may be taken together. Is that agreed? Agreed.

I move amendment No. 7:

In page 13, to delete lines 4 to 16, and substitute the following:

"(a) both perform or, if both were employed would perform, the same work under the same or similar conditions or each is, or if both were employed would be, interchangeable with the other in relation to the work; or

(b) the work performed by one is, or if both were employed would be, of a similar nature to that which is, or would be, performed by the other and any differences between the work which is, or would be performed, or the conditions under which it is, or would be performed, by each either are, or would be, of small importance in relation to the work as a whole or occur, or would occur, with such irregularity as not to be significant to the work as a whole; or

(c) the work which is performed by one is equal in value to the work which is or would be performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.".

These amendments concern the comparator, which was debated on the previous Stages. It is an issue which has dogged this legislation since its inception and has not been tackled successfully. It is still an important issue and I pursue it because I hoped the intellectual capability of the Department could be exercised to come up with a solution, even at this late stage on the second incarnation of the Bill. I do not accept that we should be slaves to history or consistency — why should we, since we are trying to do the best for those we are trying to protect? In this regard my concern is with women in low paid employment and this concern is shared by the National Women's Council, trade unions and Fianna Fáil when in Opposition — as I said previously, Fianna Fáil made a commitment to bring forward legislation allowing for the use of a notional comparator but there is still no sign of one.

I do not need to stress, to those who have followed the debate, the importance of a comparator. In industries and workplaces which either mostly or wholly employ women, one must be able to make provision to allow for comparison with a hypothetical male for the purposes of equal pay. If equal pay, anti-discrimination and equality legislation such as this is to succeed and to have real effect, particularly in cases where there is a high propensity to use women as cheap labour, it must provide a mechanism for ensuring that all women are able to secure what would be the male rate for the job.

The European Court of Justice has ruled out any comparisons not based on work actually performed by employees of different sex within the same employment and Community law does not require comparisons with a hypothetical male. This Bill does not extend equality legislation beyond our obligations under Community law but there are huge implications for industries and businesses which employ all female staff. It must be our concern as legislators to ensure that those who are vulnerable are protected by legislation such as this. Despite our best efforts and the Celtic tiger many of our workers, particularly women, are in low pay, low status jobs.

I put down this amendment to ensure this issue stayed live — I hoped the Government would come up with something but I hoped in vain. In legislation such as this we should devise a mechanism to ensure that those in low status jobs are protected. Senator Ryan said this Bill was largely for the middle class and was not relevant to the groups I mention but I hope he is not right. This is an opportunity to do something for such people. Both here and in the other House lip service is often paid to the need to do something about low pay or people in dead end jobs who are unprotected. We should get away from that and one way to do so is to compare women's pay with that received by men in a similar job.

Based on our Report Stage discussions so far I expect the Government not to respond positively, which is disappointing. I accept this is a technically and legally complex area which makes our aim difficult to achieve but that does not mean we should not try. Such an excuse is not good enough when we put laws on the Statute Book.

I second the amendment. Senator O'Meara's intent is to deal with the problem of institutionalised low pay. I will put some facts on record to underline the importance of this work and no matter how the Government deals with the amendment we will continue to focus on this. In the last seven years we have experienced economic growth on a scale unprecedented in a democratic society but we have not necessarily done much about distributing that growth evenly. Yesterday evening I was reading the reports of the Revenue Commissioners — they will not let me have their records. In the tax year 1989-90, before the boom started, there were 600,000 taxpayers with total incomes less than £10,000per annum, equivalent to about £200 per week. In the last tax year the same number of people were earning that amount of money, even though the economy has expanded by perhaps 50 per cent in the same period. We are creating an increasingly unequal society with some of the prosperity from which the rest of us are benefiting being built on the institutionalisation of low pay for about 40 per cent of the working population.

That is what the amendment is concerned with. It is a difficult area but we cannot dismiss it for that reason and not do anything about it. The Government has the resources to tackle, study and prepare for these matters so it has an obligation to respond and work towards a desirable objective.

The Minister, Deputy O'Donoghue, has considered the matter since taking office and has come to the conclusion that there are significant practical impediments to the development in legislation of a viable model for the hypothetical comparator. We share the concerns of Senators about the vulnerability of women in the workplace and with this aim in mind the Programme for Government contains a commitment to introduce a national minimum hourly wage, following consultation with the social partners. To follow up on this commitment, the Tánaiste and Minister for Enterprise, Trade and Employment established a National Minimum Wage Commission last July to advise Government on the best way to implement the commitment having regard to the level and extent of low pay in the economy. It is understood that the commission, which has consulted widely, received both oral and written submissions from interested parties and hopes to have a final report for the Tánaiste later this month. Examination of the minimum wage option is, in my view, a more fruitful approach than the hypothetical comparator in tackling issues of low pay at this time.

Senator O'Meara said Fianna Fáil when in Opposition had a clear view on this matter; she might also have said that the former Minister, Mr. Mervyn Taylor, had a clear view also, because she is taking a different view to his.

As is my right.

Only Fianna Fáil does those things to people.

The point she made can be applied either way, because Mr. Taylor was also forced to conclude there were significant barriers to the development of an acceptable and viable model for the hypothetical comparator.

The Bill has a number of provisions which will facilitate the elimination of pay discrimination in employment. In particular, the scope for identifying a comparator has been extended; one no longer requires a comparator working in the same location or at the same time. This is a valuable improvement which will allow important developments in case law.

The Government is concerned about this matter and the Minister, Deputy O'Donoghue, has reviewed the position. The work of the National Minimum Wage Commission will represent a key step in the analysis of low pay and the development over time of appropriate policies to deal with this complex and multi-dimensional issue.

I am convinced that we must be informed by developments in this area before alternative proposals for dealing with low pay, which have not proved viable to date, are revisited. In the past six months much work has been done on this important issue and the report of the commission should be with the Tánaiste by the end of this month. The establishment of the commission and the amount of work done in the past six months signifies the Government's commitment to the fact that this issue must be addressed.

Amendment, by leave, withdrawn.
Amendment No. 8 not moved.

For the information of the House, the asterisk should not be printed on amendment No. 9, it should be printed on amendment No. 10. Amendments Nos. 9 and 10 are related and will be discussed together, by agreement.

I move amendment No. 9:

In page 14, line 8, after "employees" to insert "or prospective employees".

This is a very simple and straightforward amendment which seeks to extend the protection of the section to applicants for employment as well as existing employees. It is quite a valuable amendment in that regard.

We have examined the matter and the effect of Senator O'Meara's amendment would be to extend the subsection to prospective employees. It would not be appropriate to apply the subsection to prospective employees as the purpose of this provision is to prohibit the employer from having rules or instructions or operating practices which discriminate or would be likely to discriminate against existing employees. To remove any confusion in relation to the meaning of the subsection, amendment No. 10 would delete the reference to "access to employment" from this provision.

It appears to me that amendment No. 10 does not necessarily meet what I am trying to achieve in amendment No. 9. Deleting "(a)" and substituting "(b) does not necessarily have the effect of extending the protection to prospective employees.

What Senator O'Meara is trying to do here is to insert "prospective employee". The matter has been looked at in detail since last week's debate and it is felt that the section does not apply to prospective employees. Therefore, in order to clarify the matter, we have included amendment No. 10.

Amendment, by leave, withdrawn.
Government amendment No. 10:
In page 14, line 11, to delete "(a)" and substitute "(b)".
Amendment agreed to.

Acting Chairman

Amendments Nos. 11, 12 and 13 are related and will be taken together, by agreement.

I move amendment No. 11:

In page 17, line 34, to delete "section" and substitute "Act".

This amendment has been brought forward from Committee State. It is an important amendment from the point of view that it strengthens and extends the protection of the section by replacing the word "section" by the word "Act". Therefore, it is a very worthwhile amendment and I hope the Government will take it on board.

I second the amendment.

I tabled amendment No. 13 because I asked the Minister if section 12 could be applied to seminaries devoted exclusively to the vocational training of ministers of religion. Much to my surprise, in his reply the Minister said he was uncertain about this and that it would have to be sorted out in the courts. I have no desire to use legislation produced by the State to tell religious organisations whom they should accept into their seminaries. Contrary to what has been said on the other side of the House in the past few weeks, I have no hostility to religion, quite the opposite. My only hostility is to those who use religion as an instrument of political power. As far as I am concerned, religion in itself is both good and valuable.

Section 12, as it stands, prohibits discrimination against a person entering what is called a course of vocational training

(a) in the terms of which any such course or related facility is offered,

(b) by refusing or omitting to afford access to any such course or facility, or

(c) in the manner in which any such course or facility is provided.

Section 12(2) provides a definition of "vocational training" as meaning

any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.

There is no way the practice of religious ministry is not covered by that definition and I do not think it is the business of the Oireachtas to determine who should be admitted to seminaries run by the majority religion. I may say that because I am continually accused of attacking them. If a seminary is run largely by the majority religion — presumably a similar training centre is run by other groups and other minority religions as well - I do not think there should be the possibility of someone ending up in the High Court wanting to be admitted to either the seminary in May-nooth or any other seminary in the State. I feel very strongly about it. It is sloppy legislation if this is the case.

If the amendment is not accepted I will put it to a vote, and I will put it to a vote safe in the knowledge that there are a number of Members on the opposite side of the House who are staunch defenders of the majority religion and who will, therefore, vote to have this amendment inserted in the legislation for precisely the reasons they have been expounding in the past week about the rights of the majority religion here, rights to which, in their own place, I subscribe fully. This is an attempt to put such rights properly into this legislation in a way that is correct and consistent with any sensible understanding of religious pluralism.

I have no difficulty supporting this perfectly rational amendment. However, I do not imagine there will be great numbers of Jews, Moslems or Church of Ireland people desperately battering down the gates of the various Roman Catholic seminaries. I believe the vocational institutions should be funded by the religious groups to whom they belong and not by the State. I wish to put on the record that, in fact, Trinity College moved in a slightly different direction during my period there because there was a faculty of theology and divinity in the college which was sectarian. Its principal purpose was to train ministers for Anglican orders. It has now become a faculty of theology which is open to all and I think that is the way universities, generally speaking, should go. The last two heads of this department have been two very distinguished Roman Catholic theologians. That is to be welcomed. The Church of Ireland has a separate training and theological college in Braemor Road. That is the what should happen. I happily support my colleague, Senator Ryan, but I include the proviso that most, if not all, seminaries are supported by the different religions. Whereas they should be allowed to preserve their integrity, it is not part of the function of the taxpayer to pay for the training of persons in specific religious vocations. It is valuable and important that taxpayers should help to support faculties of theology which go beyond the boundaries of one particular denomination, sect or belief because, intellectually, we can learn a great deal from different religions.

On Second Stage, I spoke of my concerns about strengthening the Bill in any way because of the danger that would create in discouraging small employers, in particular, to take on new people. I had no problem adding my name to amendment No. 13. It is carefully worded with the objective of making sure it would be accepted by the Minister. We are attempting to formulate good legislation which will not have to be amended or be found to have created conflict or bad law. On that basis, we cannot have freedom to practice religion without having the freedom to educate in the practice of religion. On Committee Stage, the Minister said it would be possible that the law could forbid discrimination in the choice of a teacher of religion in an educational establishment devoted entirely to the teaching of religion.

This is a well worded amendment which is capable of being accepted and I do not understand why there would be a problem accepting it. If the Minister is willing to think this through, he will have no problem accepting the amendment because it would make good law.

On Committee Stage Senator O'Meara tabled a technical amendment, similar to amendment No. 11, to seek to replace the word "section" with the word "act" in section 12(2). The Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, indicated the matter would be revisited on Report Stage. Since then we have had the benefit of advice from the parliamentary draftsman on this point and he indicated the definition of "vocational training" for the purposes of the Bill generally is in section 2(1). The reference in section 12(2) to the meaning of "vocational training" in the context of that section is entirely appropriate and a matter of legal construction.

An amendment similar to amendment No. 12 was tabled by Senator O'Meara on Committee Stage and at the time the Minister indicated he would examine the proposal and return to Senators on Report Stage. The definition has been examined and it is not proposed to bring forward a Government amendment. The definition is based on the definition of "vocational training" contained in section 12(2) of the Employment Equality Act, 1977. Any broadening of this definition would result in an extension of the scope of the Bill to courses that are more in the nature of educational than vocational training.

The Equal Status Bill will deal with discrimination in regard to the provision of goods and services and it is in that arena rather than this Bill that provision for educational and training courses other than those solely geared to vocational training will fall. It is intended to introduce equal status legislation later this year which will prohibit discrimination on the same nine grounds as specified in this Bill in terms of the provision of goods, facilities and services, including education. On that basis, I do not consider it necessary or appropriate to extend the definition of "vocational training" contained in section 12(2).

In amendment No. 13, the provision which Senator Ryan seeks to amend has been in employment equality legislation for 22 years and during that period it did not give rise to difficulties of the kind which the Senator seeks to avoid. The reason is that religious formation for a priestly ministry falls outside the scope of the definition of "vocational training" in the Bill and the Employment Equality Act, 1977. Courses or training which may be provided to people wishing to pursue a vocation as a minister of religion can be characterised as training for a vocation. However, we are not convinced, as the Senator and others are, these courses or training amount to a system of instruction required for the carrying on of an occupational activity and it is that type of training which is covered by the Bill.

Confusion about this amendment arises because the words "vocation" or "vocational" have several distinct meanings and two alternative meanings seem to be at issue here. One meaning refers to one's regular work, business or occupation while the other is the action on the part of a person who has made a declaration or vow to enter upon a spiritual life. Training for all occupational activities come within the scope of the Bill. Religious formation to pursue a spiritual life as a minister of religion or otherwise does not in any obvious way come under that definition. It appears that courses at well known national seminaries are largely confined to male seminarians. However, attendance at the courses is not just restricted to male candidates, but to male candidates who have satisfied the relevant authorities they possess the spiritual inclination suitable to such a religious ministry. Seminaries seem to act within the constitutional guarantees laid down by Article 44 of the Constitution. Even if the amendment were relevant to the Bill, I question whether it is constitutional. Given the history of the Bill to date and the broad and constructive debate which has taken place, I ask Senators to withdraw this amendment.

Does Senator O'Meara wish to exercise her right to reply?

Does Senator O'Meara wish to give her right of reply to Senator Ryan?

Is that agreed? Agreed.

I have an advantage over the Minister on this issue as I attended a seminary for two years. I am not talking about what a seminary does from the point of view of a misunderstanding of vocational training. A seminary trains priests so that they perfect their knowledge and technical capacity to carry on the occupational activity known as a minister of religion and which is exclusively concerned with that.

I am not confusing it with a faculty of theology which, as Senator Norris said, is and should be open to all religions. It is hoped the NUI will gradually begin to introduce significant faculties of theology which it was prohibited from doing by antiquated legislation for a long time. However, I refer to the right of religious groups to select the people they want to train as priests according to their free choices.

Let me respond to the Minister's reply that it has always been there. Everything is there until someone challenges it. The parliamentary draftsmen of this and previous generations are not infallible and neither are a succession of Attorneys General; there is ample evidence of that. The fact something is there and has never been challenged is no reason for not looking at it again. The way to avoid problems is to attempt to anticipate them and to plan so they do not happen. It is an incorrect way to order society, business or legislation to wait until there is a fuss before we deal with the problem.

The reality is this legislation is ambiguous about whether it covers religious seminaries. If it does not that is fine, the amendment is meaningless. If it does cover them, the amendment means they are protected from an unintended consequence of section 12. As far as the constitutional aspect goes, this is a matter of mind boggling confusion to me. The Minister says there is a constitutional guarantee of the right to practise a religion and, therefore, a constitutional guarantee of the right to train people to provide a ministry for that religion. The problem, then, is that perhaps section 12, which has been found constitutional by the Supreme Court as it stands, could result in litigatious mayhem for religious communities by someone who wanted to make life troublesome. We owe it to the religious denominations to make it clear that it was never the intention of the Oireachtas to inhibit them in any way in the selection of members of their community as appropriate for training as ministers of religion.

The constitutional argument does not hold water. The definition of vocational training is, in my experience, precisely what one does in a seminary, for the first two years at least, which is the period I spent in a seminary, but to my knowledge the full eight years are all about this. We should say that we do not want to make trouble for people, we want this to apply where people are being trained as ministers of religion. There is no reason not to accept this amendment. It is a simple attempt to anticipate trouble in the future and therefore avoid it.

We have not had this trouble in the last 22 years. On constitutional grounds this section has been found to be correct. The candidates in the seminary also have to satisfy the relevant authorities that they possess the spiritual inclination suitable to such a religious ministry. Overall, the section is constitutionally sound and there has been no trouble for 22 years so I do not anticipate trouble.

Amendment, by leave, withdrawn.
Amendment No. 12 not moved.

I move amendment No. 13:

In page 18, between lines 39 and 40 to insert the following:

"(8) Nothing in this section shall apply to any course of vocational training whose sole purpose is the training of ministers of religion."

I second the amendment.

Amendment put.
The Seanad divided: Tá, 13; Níl, 21.

  • Burke, Paddy.
  • Coghlan, Paul.
  • Connor, John.
  • Coogan, Fintan.
  • Cosgrave, Liam.
  • Doyle, Avril.
  • Doyle, Joe.
  • Henry, Mary.
  • O'Dowd, Fergus.
  • O'Meara, Kathleen.
  • Quinn, Feargal.
  • Ridge, Thére se.
  • Ryan, Brendan.

Níl

  • Bohan, Eddie.
  • Chambers, Frank.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Liam.
  • Fitzgerald, Tom.
  • Fitzpatrick, Dermot.
  • Gibbons, Jim.
  • Glynn, Camillus.
  • Hayes, Maurice.
  • Kett, Tony.
  • Kiely, Dan.
  • Kiely, Rory.
  • Lanigan, Mick.
  • Leonard, Ann.
  • Mooney, Paschal.
  • Moylan, Pat.
  • Norris, David.
  • O'Brien, Francis.
  • O'Donovan, Denis.
  • Ormonde, Ann.
Tellers: Tá, Senators Quinn and B. Ryan; Níl, Senators T. Fitzgerald and Gibbons.
Sitting suspended at 1.10 p.m. and resumed at 2 p.m.

Amendments Nos. 14 and 21 to 24, inclusive, are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 14:

In page 20, to delete lines 9 to 13, and substitute the following:

"(3) For the purposes of this Act an employer shall do all that is reasonable to accommodate the needs of a person with a disability. A person with a disability shall not be regarded otherwise than as fully competent to undertake any duties, if either with or without the benefit of reasonable accommodation that person would be so competent.".

Amendment No. 14 and the related amendments could be referred to, for purposes of convenience, as the "disability amendments". They refer to what I would consider to be the most important section of the Bill in the sense that it is the section which needs to be most amended. In effect, the protections people with disabilities require have been totally undermined by the Government's lack of response to the Supreme Court judgment. It seems to me that the Government is afraid to stray from the judgment in any way. As a result, an extremely narrow and minimalist approach has been taken. I would argue that that approach is not only unnecessary but undesirable.

The Supreme Court did not set out to damage the rights of people with disabilities. It was its intention to ensure the Bill was constitutional. The spirit of this legislation is to ensure that a range of groups, including people with disabilities, is not discriminated against in the workplace. It appears that the Government's response to the Supreme Court judgment and the sections of the Bill relating to employers' obligations to people with disabilities is seriously deficient. I have tabled these amendments — hopefully not in vain - to attempt to go some way towards remedying the current position.

I am very disappointed to note that the Government has not responded to the disability issue. On Committee Stage last week, the Minister, in his response to the extensive disability amendments, indicated he would return to the House with proposals on Report Stage which would meet Senators' concerns. I was very pleased to hear that and looked forward to seeing comprehensive amendments being tabled by him. In that context I was quite hesitant to table my own amendments because I felt that the Minister, with the benefit and expertise of his officials, would table far more adequate amendments than I could. That has not happened and it is a source of serious disappointment to me. The Minister has obviously had a change of heart and that is a matter of serious concern, particularly to people with disabilities.

I am certain it was never the intention of the learned Supreme Court judges to undermine the rights of people with disabilities. It is the Minister's job — and our job as legislators — to draft legislation which is constitutional but which also meets its requirements and spirit. That must be done in a balanced fashion which ensures the rights of all concerned, including employers, are met. I do not think it is impossible to do that. Anyone who reads amendment No. 14 will see that we are not seeking to place an undue obligation on employers. We merely want to substitute that "... an employer shall do all that is reasonable to accommodate the needs of a person with a disability. A person with a disability shall not be regarded otherwise than as fully competent to undertake any duties, if either with or without the benefit of reasonable accommodation that person would be so competent." The amendment speaks for itself. The proposal contained therein is extremely reasonable and, I suggest, entirely constitutional.

On Second and Committee Stages I pointed out that the effect of section 16, as currently drafted, on the obligations of employers gives the distinct impression that employers of any disabled person would incur considerable costs. That is not true. The section also conveys the impression that all disabled people are severely disabled, which is not true either. We are actually creating a situation where not only are employers provided with a complete "out" with regard to employing people with any range of disability but where the notion of nominal cost is introduced. The section suggests that it would not be allowable under this legislation for a sum of even £10 to be expended on improving a workplace. That is an extraordinary position and one which cannot be allowed to continue.

I cannot understand how the Government or the Minister can stand over a position where people with disabilities — one of the core groups whose rights are addressed in this legislation — could be left, in effect, so exposed. No proposal has been put forward to provide some sort of middle ground to ensure that the rights of people with disabilities are met. In the context of the Supreme Court judgment, I am only seeking to have that done in a reasonable fashion. The notion of nominal cost is a severely deficient one and one which, if retained in the Bill, will cause huge problems and will mean that a purely minimalist approach is applied to ensure that people with disabilities are encouraged into the workplace.

I referred earlier to the NESF report on the equality provisions of Partnership 2000. It is true that in recent years many strides were made, particularly by the former Minster for Equality and Law Reform, Mr. Taylor. In that context the response to this problem is even more disappointing. Maureen Gaffney, the Chairwoman of the National Economic and Social Forum, quite rightly pointed out that a balance must be achieved between the constitutional rights of property and social justice. It is the responsibility of the Minister, in the first instance, to introduce legislation which contains that essential balance. It is our role as Senators, particularly on the Opposition benches, to meet deficiencies in legislation which does not achieve that objective. That is what we are trying to do with the sections which, as drafted, are seriously deficient. They are completely unbalanced as regards property rights to such an extent that the employment of anyone with a disability is almost actively discouraged.

Previously, I praised the Bill for its proactive approach to generating an atmosphere of equality. There is the extraordinary situation, however, that if an employer must incur a cost of any description, the rights of disabled people are not taken into account. I find it hard to believe that any Minister or Government could stand over that and amendment No. 14 seeks to achieve that by way of reasonable accommodation.

Amendment No. 24 relates to section 35, which is one of the key sections concerning discrimination against employing people on the grounds of disability. That section, which is the foundation of the Bill's spirit and core principles, is deficient because of the minimalist approach the Government has adopted. Amendment No. 24 seeks to address that problem, particularly in relation to subsection (4), which states:

Nothing in this Part or Part II applies to discrimination against a person on the disability ground in relation to employment of any description if—

(c) there is clear evidence that the provision of that accommodation would involve significantly increased cost to the employer.

The Government must come forward with something on the cost issue. It is not acceptable to leave the situation the way it is, purely referring to nominal cost. It is deficient and I cannot understand it. I was looking forward to hearing what the Minister of State would say, considering the commitment given last week on Committee Stage, but I am sorely disappointed. I could understand it if the Minister of State said there was not enough time, but I am not inclined to hope for the best. I will be pressing the amendments.

In seconding the amendment I echo what Senator O'Meara said. Section 16(3) states:

For the purposes of this Act, but without prejudice to section 35(4), a person who has a disability shall not be regarded otherwise than as fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment of facilities, that person would be so fully competent or capable.

As Senator O'Meara pointed out, this gives an out to certain employers in relation to the cost of providing facilities for disabled people. The wording of the amendment is eminently reasonable. I tabled a similar amendment on Committee Stage which, unfortunately, I was not here to move. I cannot understand what the Minister of State can find wrong with it or why she will argue that it is reasonable for her to press ahead with the section as it stands.

The Bill's core philosophy is to outlaw discrimination and, as a section of society, disabled people have found themselves subject to much discrimination in employment. Disabled people with excellent qualifications and competence have found themselves unable to secure employment because employers claim it would place a special burden on them to accommodate such people.

There has always been in-built discrimination against people with disability. For the purpose of inserting a lasting philosophy on this issue in legislation we are pressing the Minister of State to accept this amendment.

I rarely get annoyed with Ministers because they have a difficult job to do and it is easy for those of us in Opposition to demand this and that. However, in my experience over the 17 years since I was first elected to the Seanad, when a Minister indicates on Committee Stage that he is prepared to re-examine a matter, it is rare for that review to produce a total blank. That is not my experience of the use of language by Ministers. Therefore, it is extremely disappointing, frustrating and aggravating to have had the Minister essentially defuse a discussion last week by being the picture of sweet reason — and we all understand the difficulties because of the extraordinary decision of the Supreme Court — and to come back this week without having done anything. The Minister has had all that time since the Supreme Court decision to think about the matter, yet it has been decided to do nothing.

The Minister of State has been articulate in stating that we are the only country in Europe without anti-discrimination legislation. That is not a record we want to maintain for very long, but will we now end up as the only country in Europe without any significant legislative protection for disabled people against discrimination in employment? Is the Government saying this legislation is unfortunate for the disabled, but there is nothing it can do about it because of the Supreme Court decision? That is what it amounts to because any employer can use the cost factor as an excuse not to employ a disabled person.

Anybody in a wheelchair can reach the top drawer of a three-drawer filing cabinet, but they cannot reach the top drawer of a four-drawer filing cabinet. Are we now saying that an employer who would have to undertake the minimum change of installing three-drawer filing cabinets rather than four-drawer, is to be excused from any obligation to treat disabled people fairly? This is what these amendments are about.

On Committee Stage we should have been engaged in an attempt to establish a constructive political consensus to get beyond the decision of the Supreme Court. That decision was not as all excluding as the Government seems to suggest. A succession of matters were mentioned in the decision, each of which could have been addressed. I suspect that if one or other of them had been addressed, the question of the constitutionality of the general obligation on employers not to discriminate against people with disability would probably be all right. It was the combination of circumstances that the Supreme Court found in the previous legislation that led to its decision.

The Government's real job should have been to find a way through those criticisms which met the constitutional requirement but which also went as far as possible towards protecting the rights of people with disability. Instead, we have gone nowhere. We have left a phrase in the legislation which means it is no more than a rhetorical flourish signifying nothing. We need something different. An imaginative Government and a genuinely reforming Department of Justice, Equality and Law Reform would not have said: "Tough luck. We did our best but there is nothing more we can do". They would have tried again and again, as has been the case in the past with legislation where constitutional difficulties arose. On this occasion, however, somebody somewhere decided it was not worth the candle to try it again. It would be a pity if a determination to get this legislation — which has been around for a long time — out of the way, was to leave disabled people with minimalist protection.

It is difficult to disagree with much of what Opposition Members have said about our requirement as legislators to do everything in our power to guarantee disabled people equality of employment opportunity, in so far as possible within the Constitution. Many of the sentiments which have been expressed by the Senators would be enthusiastically endorsed by the Minister, the Minister of State who has special responsibilities for the disabled, all Senators on this side and me. To do otherwise would be to speak contrary to what the Bill proposes.

It should be borne in mind that some of the sentiments tend to suggest, if not assert, that the Government and the Minister of State seem to have scant regard for the needs of the 30 per cent of disabled persons who would require what is referred to as reasonable accommodation. It is very misleading to assert that, given that the Government appointed a Minister of State with special responsibility for the disabled. That, in itself, is not only a powerful statement, but a powerful action demonstrating that the Government acknowledges the needs of the disabled and is very committed to trying to ensure the delivery of the services to meet those needs at the earliest possible date. Otherwise, why would the responsibilities of a particular Minister of State focus on disabilities? It does not seem to me to make sense.

Senator O'Meara stated that the Minister gave commitments last week. I cannot recall exactly what he said, but, taking her at her word, he gave a commitment to look at the situation again and do what he could, in consultation with the Minister of State, to go some way towards meeting the shortfall today. It is only reasonable and fair to presume that the Minister and, indeed, the Minister of State, are committed — as they undoubtedly are if one looks at the resources which have been made available to the disabled over the past six months since they took office — and would have done everything within their power. Not only would they have reflected on the shortfall arising out of the Supreme Court judgment but, I am sure, without having any insider knowledge of it, that they took the case right to the wire with the powers that be within Government to try to determine what could be done and what latitude there was arising out of the Supreme Court judgment. No doubt every effort was made to try to come forward today with additional amendments which would go some way towards meeting that shortfall.

We must bear in mind that 70 per cent of the people with disabilities do not need reasonable accommodation as defined in the Bill. Those people are covered as regards discrimination within the context of this Bill. I hope everybody agrees that they are fully protected the same as everybody else.

Amendment No. 24 would seem to be unconstitutional because it would appear to me to revert back to the original position prior to the Supreme Court judgment or go some way back towards that position. According to the Supreme Court judgment, the Senator's amendment would appear to challenge the rights of the employers of the other 30 per cent of disabled people who we all acknowledge need reasonable accommodation over and above what is afforded to the able-bodied applicant. I have no difficulty with challenging the constitutional rights of those employers. My problem is that if it is doing so — and the Supreme Court appears to have ruled that it is not reasonable, given the constitutional rights of employers to do that — then it would appear to me that amendment No. 24 could be found to be unconstitutional. If that is the case, we are back to square one. I am not a constitutional expert so I do not presume to exercise the judgment; I am expressing an opinion based on a literal interpretation of what is intended.

It would be wrong to allow go unanswered the views which have been expressed by Senator O'Meara, much as I agree with and support much of what she said. In particular, I am referring to her view that the Minister and the Minister of State would appear to have gone away, thought about it and decided not to bother. That is not true and I am sure Senator O'Meara did not intend it in that way either because she knows it is not true. I am sure that a Minister who would stand up here and give commitments or assurances — if that is what he gave — to look in depth at this again, in conjunction with the Minister of State, would have made every effort and examined every potential possibility to try to come forward with a positive response today. Obviously, they have been unable to do so. I assume there must be some legal or constitutional problems in relation to it. I have no inside information as to what are the problems, but no doubt the efforts were made.

The Disabilities Bill is being drafted at present. I urge the Minister of State to consider taking on board again all of the concerns which have been expressed here in the context of the Disabilities Bill. I hope it will be possible for her and the Minister to accommodate as many of those concerns as possible at that stage as it would be appropriate to do so then.

I support amendments Nos. 14 and 24.

I have difficulty with amendments Nos. 21 and 23. The House will remember that I tabled these amendments on Committee Stage, but I find it difficult to justify the insertion of the phrase "the same or an increased". That seems to introduce a rather odd kind of positive discrimination. I do not see why people should be paid an increased wage simply for being disabled. It seems to me that one would need to make a very particular argument for that. However, the idea of reasonable accommodation seems to me to be vital to the proper functioning of the Bill. Without it, we cannot really claim that we are travelling in the direction of equality.

Interestingly, Senator Liam Fitzgerald stated that he understood the reasonableness of our case and sympathised greatly with it, but he assumed that there were constitutional bars to it. He admitted casually that he did not know what they were, but he simply assumed that they did exist. In a way, that shows to me the unfortunate situation about this House, that its room for manoeuvre has been eroded by the partisan nature of the distribution of seats because it is clearly a party matter. A subject is taken on trust simply because it is the decision of, or in the programme of, a particular party and there is an absence of argument. There is a reliance on the judgment of the Minister and her advisers in advance of any argument having been made and an assumption of it being unconstitutional.

The question of reasonability has been raised. The very word "reasonable" appears in both of the amendments about which I feel most strongly. Presumably, a court being asked to test this would take into account the fact that this very notion of being reasonable, being marginal, is a part of the operation of the Bill, if amended. We must ask: if this Bill is not amended in this way, will there be unreasonable treatment of people with disabilities? It seems clear to me that there will, because we are only asking for marginal changes and accommodations.

Section 35 (4) states that the provision will not apply if "that person needs special treatment or facilities in order to satisfactorily take part in a selection process or to undertake that employment" and if the provision of that treatment or facilities would give rise to costs "other than costs of a nominal nature". What constitutes special treatment or facilities? For example, wheelchair access is not mandatory. While it is an objective of the Government that there should be wheelchair access, we are not prepared to specify that such access should be provided.

A situation could easily arise under this legislation where people who are perfectly competent to undertake a job could be disbarred simply on the grounds of lack of wheelchair access. I strongly suspect it would be possible for an employer who did not wish to employ someone in a wheelchair to locate the interview room in a site without wheelchair access. They could then say they could not employ the person because it was impossible to interview them. I would like to be told I am categorically wrong in making that assumption, but I think that case could be sustained. An employer who did not want the bother of employing someone in a wheelchair could easily shed any wheelchair applicant by using that cynical manoeuvre.

I am certain that neither the Minister of State, her advisers nor Senator Fitzgerald wish this to happen. However, we, as legislators, are charged with the responsibility of ensuring such a situation could not occur. I believe such a situation could occur under this legislation because wheelchair access could be construed as requiring special treatment or facilities because such access does not exist universally and is not required by law.

Amendments Nos. 14 and 24 are eminently reasonable because they are hedged by conditions. The provision will not apply if the person needs "reasonable accommodations" which "goes beyond what a reasonable employer could be expected to provide". Why should we cater for an unreasonable employer? It also will not apply if "there is clear evidence that the provision of that accommodation would involve significantly increased cost to the employer". I do not wish to rehash all the arguments but, as the Bill stands, it would be possible for an employer to reject a job application on the ground that employing the applicant would involve making small plumbing alterations and moving plugs or switches so that they could be used by someone in a wheelchair.

"Nominal" means just that. We are just trying to push the emphasis a little further from "nominal" to "reasonable". It is the equivalent of a peppercorn rent — a notion, in other words, rather than something real, tangible and practical. We will have failed as legislators if we cannot demand reasonable treatment by employers of the disabled, despite the stated objectives of all Governments and parties.

I wish there was a free vote on this occasion. If that were the case, the arguments made on this side of the House, and which have not been met significantly by Government arguments, would lead to the carrying of this amendment. Let us take a risk. Are we really that frightened by the Supreme Court judgment?

Yes, we are.

Oh dear. I hope the microphone picked up that admission. I am not a bit frightened because I am fairly litigious.

Been there, done that.

Exactly. It would be a public service to let this be tested if an employer or the President decides to refer this to the Supreme Court. Would it not be a triumph for the Minister of State——

It has been tested.

——if the Supreme Court vindicated her judgment?

We did that last year.

Yes, but not with this amendment - it was a substantially different one. I believe this amendment would pass the constitutionality test. If not, perhaps it is time to have another look at the Constitution in this area. The rights of employers and property owners should not be allowed to supersede those of the most vulnerable sections of the community.

Nothing in these amendments would endanger the commercial viability of a company, which would be a very reasonable point to make. If an employer could demonstrate convincingly to a court that the provision of this accommodation would render them uncompetitive, the court would clearly decide that, regrettable as it was, the disabled person had no automatic right as a citizen to that job. It would be ludicrous to say that someone could have a job at the expense of the entire company because there would be no job if the company went out of business. Very few people would be stupid enough to push that. We are talking about reasonableness. I urge the Minister of State to take this amendment on board.

When we entered Government last July we were faced the difficulty of trying to accomplish what we wanted to do while still complying with the constitutional requirements raised in the Supreme Court. When the previous Bill was debated by the Oireachtas this time last year people did not accept that this aspect would cause problems. However, it raised constitutional difficulties.

The Minister, Deputy O'Donoghue, said to Senator O'Meara on Committee Stage last week that he would look at this again. We have been looking at this matter constantly for the past six to eight months since we entered office. The Minister did not say anything that was different from what we have been constantly saying. Let us do what Senator Fitzgerald has suggested by pushing the boat out to the limit and including as much as we can in the Bill for people with disabilities. We have had considerable deliberation on the comments made on Committee Stage to see if we can do anything further in the Bill, while bearing the constitutional requirements in mind.

Senator Norris' suggestion that we should chance it again has been very tempting to us since last July.

The Government should yield to that temptation.

We cannot continue to keeping chancing it in the Supreme Court because, to return the point made by Senator Ryan, we are the only European country which does not have anti discrimination legislation. There are nine categories in the Bill. While the category which we are currently discussing is the most important for me, we must cover all nine. There are many people waiting for us to pass anti discrimination legislation. Some of those are the people to whom Senator Fitzgerald referred, that is, the 70 per cent of people with disabilities who do not require the provision of reasonable accommodation.

We face the dilemma of whether to place anti-discrimination legislation on the Statute Book and do everything possible for disabled people or continue to review the situation as time goes on. As Senator Fitzgerald stated, we should bear in mind that the Government proposes to bring forward a disabilities Bill and it will be reviewed after two years. We should remember that it has taken four years to get this Bill to this stage. After it was passed by both Houses of the Oireachtas it was found to be unconstitutional in the Supreme Court. We do not want a repeat of that in another four years.

We need to take whatever steps we can to put anti-discrimination legislation onto the Statute Book. We need to do everything possible for the nine categories of discrimination, including the 70 per cent of people with disabilities with whom we are dealing and then keep working on the issue as Senators Fitzgerald and others want us to. I do not think anybody, particularly those covered in the nine categories, would thank us if we spent the next four years taking a chance with the Constitution and the Supreme Court. For that reason we have to put this legislation onto the Statute Book. As Senator Ryan pointed out, Ireland is the only European country without anti-discrimination legislation. The point made by Minister O'Donoghue last week was that we reviewed this matter every day and we must continue to do so.

Senator Norris discussed amendments Nos. 14 and 24. The aim of section 16(3) is to strengthen the position of people with a disability who are in employment and who may have been provided with some special treatment or facilities to enable them to carry out their work. In such circumstances under this subsection, an individual cannot be regarded as otherwise than fully competent and capable of doing the work even though she/he needs the assistance of reasonable accommodation. The inclusion of the phrase "either with or without the benefit of reasonable accommodation" sets no value on the specific protection afforded to people who need reasonable accommodation by extending it also to people who do not need it. My advice is that the amendment instead of strengthening the existing position would have the effect of neutralising the provision to such a degree that the entire subsection would be rendered superfluous.

The use of the phrase "reasonable accommodation" in the proposed amendment and the specific proposal that "an employer shall do all that is reasonable to accommodate the needs of people with disabilities" in the advice available, seriously impinges on the area of unconstitutionality defined by the Supreme Court in the judgment of May 1997 to the Employment Equality Bill, 1996, Mr. Taylor's Bill. I am advised that if these amendments were accepted we would run the risk of having the Bill judged unconstitutional just as was Mr. Taylor's Bill and that is why we find it difficult to accept those amendments.

With regards to amendments Nos. 21 to 23, inclusive, an amendment to substitute the words "same or increased for particular" in subsections (1) and (3) seem to specifically provide that an employee with a disability may be paid more than an employee without a disability or with a different disability even though both are doing the same work. This would be a form of discrimination and would be an inappropriate provision in the Bill. I cannot accept those amendments on these grounds.

The Employment Equality Bill, 1996 failed to strike the acceptable constitutional balance between the principles of social justice and the property rights of employers. It attempted to set limits to the extent of reasonable accommodation, even having regard to the concept of undue hardship, but these provisions were held to be repugnant to the Constitution. It is difficult to say how these proposed amendments would fair any better. We all wish to see legislation on the Statute Book for the first time in the history of the State which prohibits discrimination in employment on grounds of disability. To achieve this objective we must accept the Supreme Court judgment, even though some of its implications are unpalatable. As someone committed to this issue I know we cannot ignore the Supreme Court judgment. Our longer term policy objectives must direct us towards establishing a new basis for dealing with its implications.

I am well aware that Senators are very committed to the amendments that relate to reasonable accommodation. I know everybody working in the sector is also committed to this issue. I also know the sentiments in these amendments are genuine but we have examined them in great detail. We will do everything possible to make a movement here. We consulted our legal advisers in great detail about the possibility of inserting the phrase "reasonable accommodation" in the Bill. So far we have not been able to develop a formula of words that will pass the tests of constitutionality and acceptability. By acceptability I mean it would have to be acceptable to everyone involved in the sector, including myself.

At this stage I am concerned that a formula of words may be very difficult to achieve but it will not be for the want of trying. Unfortunately, I am not able to accept the amendments because, as I explained to Senator Norris, I do not want this legislation to be found unconstitutional again even though we all wish to do more work on this matter.

Section 35(1) revolves around a number of the proposed amendments. I am aware of the specific difficulties that arise for many disabled people. The Minister said we would look at this matter and we will continue to do so. Unfortunately, we are not able to bring forward a suitable wording now. I repeat that it is not for the want of effort on our part. The Government has identified disabilities as an extremely important area and one of the first decisions made by it was to look at the provision of a disabilities Bill. We are currently putting through anti-discrimination legislation.

Everyone will be aware that the Government has taken a number of key decisions in the disability area over the past six months, whether it was the decision to propose a disabilities Bill, a national disability authority, the doubling of funds for the Council for People with Disabilities who last year got £300,000 and this year got £700,000. Our commitment to disabilities is such that it will not be confined to the Department of Health and Children as a medical issue but will come under the aegis of the Department of Justice, Equality and Law Reform so that disability is seen to be an area to be dealt with by every Department and agency. Those commitments are all there. I reiterate that this Government will not be found wanting in terms of its commitment to people with disabilities. In terms of this legislation we have done everything possible and have been guided by legal advisers. Last week we said we would look at this again and we will continue to review the matter.

What about wheelchair access?

The Senator's point is interesting. Everybody here would make the same supportive points regardless of the side of the House they came from. The Minister would be in the same position. We all want to do more, even though we are confined by the Constitution.

We would be faced with the terrible choice of spending four more years looking at the problem and still have no discrimination legislation. Let us do what we can now and continue to keep this item on the agenda.

May I remind the Minister that she did not address Senator Norris' point on wheelchair access?

When I spoke on this matter I expressed concern about people who become disabled while in employment. Will the Minister consider providing funding for a reasonable employer to provide accommodation for employees with disabilities? I can understand how small employers might find it difficult to provide suitable accommodation but Government funding might enable them to do so. Opposition Senators cannot propose such an amendment but perhaps the Minister could consider such a measure.

Part M of the building regulations must be complied with.

Is there any danger that they will be declared unconstitutional?

They have been in operation since 1991 so we should be safe enough.

Have they been tested?

Senators Norris and Henry have raised an important point. The Bill relates to the nominal cost to the employer. The work adaptation grant, operated by the National Rehabilitation Board, can be paid for adaptations costing up to £5,000. If an employer who has a cost of £4,000 receives a work adaptation grant there will be no nominal cost to him.

Could an employer avoid applying for the grant and then, if he wished to be malicious, claim to have incurred more than a nominal cost?

The law requires an employer to provide reasonable accommodation so long as he does not incur more than a nominal cost. He would, therefore, have to avail of the grant.

I do not question the Government's or the Minister's commitment to advancing the cause of people with disabilities. The many measures she has taken must be welcomed but this commitment sits uncomfortably with the wording of the Bill. I know that the Minister may feel hidebound by the Supreme Court judgment. She has spoken about her legal advice. I too have received good and experienced legal advice.

The Minister for Justice, Equality and Law Reform undertook, during the Committee Stage debate, to look at this section. When a Minister gives such an undertaking it is reasonable to expect that something will emerge. It now appears that no change will be made by the Government. This is a matter of deep disappointment to me and to those who are watching the progress of this Bill. There is no mention, for instance, of the possibility of a constitutional amendment on the question of disability arising from the difficulty created by the Supreme Court judgment. I am a member of the all party committee on the Constitution and I would welcome any proposals from the Government on this matter. I stand over my view that the Bill is deficient despite the very laudable intentions of the Minister and the Government. The Bill leaves much to be desired because of the Government's inadequate response to the Supreme Court judgment.

Question proposed: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 20; Níl, 12.

  • Bohan, Eddie.
  • Chambers, Frank.
  • Dardis, John.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Liam.
  • Fitzgerald, Tom.
  • Gibbons, Jim.
  • Glynn, Camillus.
  • Kett, Tony.
  • Kiely, Dan.
  • Kiely, Rory.
  • Lanigan, Mick.
  • Leonard, Ann.
  • Mooney, Paschal.
  • Moylan, Pat.
  • O'Brien, Francis.
  • O'Donovan, Denis.
  • Ó Murchú, Labhrás.
  • Ormonde, Ann.

Níl

  • Burke, Paddy.
  • Connor, John.
  • Coogan, Fintan.
  • Cosgrave, Liam.
  • Doyle, Avril.
  • Henry, Mary.
  • Manning, Maurice.
  • Norris, David.
  • O'Meara, Kathleen.
  • O'Toole, Joe.
  • Quinn, Feargal.
  • Ryan, Brendan.
Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators Norris and O'Meara.
Question declared carried.
Amendment declared lost.

Is it proposed to sit until the Bill is completed?

We will proceed until the Bill is finished. How long that takes is up to the Members.

Amendment No. 15 is in the name of Senator O'Meara and it is also tabled by the Government. Amendments Nos. 29, 30 and 34 are related and all may be discussed together. Is that agreed? Agreed.

I move amendment No. 15:

In page 21, line 11, to delete "and 1993" and substitute "to 1997,".

This is an issue on which the Government has adopted our constructive suggestions.

Amendment agreed to.

I move amendment No. 16:

In page 24, between lines 10 and 11, to insert the following:

"(2) It is immaterial for the purposes of this section whether A and B are of the same gender.".

This amendment concerns the provisions of the Bill dealing with sexual harassment in the workplace. The amendment was tabled on Committee Stage. It is designed to ensure that the protections in the Bill are as extensive as possible. The amendment would apply the provisions to same sex sexual harassment in the workplace which is not an unknown occurrence. I thought the Government would have been happy to accept this amendment as it is in keeping with the spirit of the legislation and strengthens it.

I second this valuable amendment.

We are all aware of cases in which behaviour of this kind has occurred. I can recall a number them. This does not necessarily imply that either or both persons involved are gay. It can frequently be a case of obnoxious and nasty harassment as a form of practical joke. In this jurisdiction and in the US harassment of this type has had tragic consequences, going as far as suicide. The only reason I can imagine the Minister of State will not accept the amendment is if she can demonstrate that such a situation is already encompassed by the Bill. Otherwise there is no reason the matter should not be addressed, particularly given that there is a tragic history in this regard.

This behaviour is not taken seriously enough by Government. A report from the working party on suicide was published recently. It is a frightening statistic that young gay people are six times more likely to commit suicide. A considerable body of evidence was placed before the working party by professional groups working in this sphere, yet there is no mention of the matter in the working party's report. There would seem to be a deplorable callousness in the attitude of officialdom in this regard.

I am glad Senator O'Meara had the foresight to table this amendment. The point is better made coming from her than from me. Had I tabled it the House might have thought I was on my hobby horse yet again. I did not spot the opportunity to table the amendment but I urge the Minister of State to accept it.

This amendment seeks to extend the definition of sexual harassment to same sexual harassment. I realise that there are aspects of harassment and bullying which do not come within the scope of the nine grounds in the Bill. I intend to focus on outlawing discrimination on these nine grounds rather than broadening the scope of the Bill to new issues, however worthy they may be.

Part III of the Bill transposes into law the EU equal pay and equal treatment directives. The foundation of these directives is the notion of a comparator of the opposite sex. I do not intend to deviate from this policy in this regard. Section 32 of the Bill gives protection against other forms of harassment and I am not, therefore, disposed to include same sex harassment in this section. Same sex sexual harassment is seldom simply a matter of discrimination on the grounds of sex. It is often based on age, sexual orientation or family or marital status. Harassment on these grounds is covered specifically in section 32.

I accept the Minister of State's point that there is sufficient protection in the Bill. She does not object to the spirit of what we seek to achieve and I would have thought that strengthening the provisions in section 32 would be useful. It is a pity the amendment has not been accepted.

Amendment, by leave, withdrawn.

I move amendment No. 17:

In page 26, line 13, to delete "or adoption".

This amendment relates to section 26 of the Bill which deals with exceptions relating to family and personal matters. It states:

Nothing in this Act shall make it unlawful for an employer to arrange for or provide treatment which confers benefits on women in connection with pregnancy and maternity (including breast-feeding) or adoption.

The amendment seeks to delete the reference to adoption to ensure that male adopters are not given less favourable or less equal treatment.

I second the amendment.

The purpose of section 26 (1) is to ensure that legislation or collectively agreed and contractual arrangements which confine benefits such as leave to women in connection with pregnancy, maternity or adoption will not conflict with employment equality law. The reference to adoption is intended in particular to protect from challenge adoptive leave schemes which are confined mainly to women. The arrangements are entirely in line with EU case law. As a result, I cannot accept the amendment.

Section 26 (1) allows for positive action measures in favour of women in connection with pregnancy, maternity and adoption and will fall to be interpreted in accordance with the EU equal treatment directive. This provision is entirely consistent with EU law. Senators may be aware that the European Court of Justice has ruled that adoptive leave provisions which confine such leave to mothers are in line with the principles of that directive. The Supreme Court recently held that an adoptive leave scheme confined to women was contrary to the Employment Equality Act, 1977. The case turned on the wording of that Act, which is more restrictive than the analogous provision in the equal treatment directive. Following the enactment of the Adoptive Leave Act, 1995, it is permissible for employers to have an adoptive leave scheme directed primarily towards leave for adopting mothers.

Classic minimalism.

I thank the Minister of State for her reply. This amendment and the others are tabled in a spirit of constructiveness. I welcomed the pro-active approach to equality. Some of my amendments would have made major changes to the Bill but the changes in these amendments would be minor. I am disappointed by the Department's general response, which is extremely minimalist and narrow. It was said in the past that there is often a more wide-ranging discussion on Bills in the Upper House but that should hold for both sides.

Amendment, by leave, withdrawn.
Amendments Nos. 18 to 24, inclusive, not moved.

I move amendment No. 25:

In page 34, line 47, after "citizenship", to insert the following:

"for persons who are not citizens of another member state of the European Union".

I am intrigued by section 36, to which this amendment applies. Subsection (2) provides that certain employments may make the following requirements of an employee — residence, citizenship and proficiency in the Irish language. I am an enthusiastic supporter of retaining a requirement of proficiency in the Irish language where appropriate, particularly in the Garda Síochána and the public service, and I have a long standing commitment in that regard. However, I have my doubts about continuing to insist that citizenship of this State is a qualification to serve as an officer or servant of a local authority, a harbour authority, a health board, a vocational education committee, or a teacher in primary or post-primary schools. My understanding is that we are part of a single market in employment and cannot discriminate between citizens of this State and of other EU member states on the grounds of citizenship — we have moved beyond that. While we can require that people meet particular training standards, standards of proficiency in the Irish language and residency requirements, we cannot tell applicants for a job in the categories mentioned that they cannot be employed because they are citizens of another EU member state. If I have misunderstood the position I would be happy to have it clarified but if not, I want to hear why this amendment is not necessary in order to avoid the Bill coming into conflict with our EU commitments.

I second this reasonable and logical amendment. How can citizenship possibly be used as a blanket determinant for discrimination? It could be so used for people outside the EU but, as Senator Ryan says, the Bill as it stands blatantly comes into conflict with our Treaty obligations. We are required to cater for the free movement of goods, services and labour; how can that square with a citizenship requirement which purports to deny people employment simply on the basis of the absence of Irish citizenship, even though they are citizens of another EU country? This seems absurd.

Senator Ryan has found a loophole in the Bill. How can citizenship be a criterion for officers or servants of a local authority? People who have lived here for 20 years may not wish, for sentimental or other reasons, to surrender their citizenship of Germany, the UK, France or Holland, but they are resident and employed in this country. If they have all the right qualifications, why should they not be employed in this capacity? This constitutes a clear infringement of EU legislation.

It is the practice, not only here but in EU member states generally, to confine eligibility to apply for certain appointments, particularly in central government jobs, to one's own nationality. I note the Senators' concern about this but we are doing something similar to what is done in all member states. If there was a change across Europe I am sure we would make the change in line with other countries but I am not sure this legislation is the place to do it.

Could the Minister give instances?

All I can say is that it has been checked and the policy of confining eligibility for certain public service jobs to state nationals is one which is common internationally. At this point we believe that if this is to be advanced it should be advanced at the same time in other European countries, perhaps through the Council of Finance Ministers taking a common decision. For the present it is common among member states that central government jobs would be retained for citizens of the respective state.

Before deciding whether to accept the amendment I must state that I do not accept there is a practice across Europe that, for instance, a hospital in Germany would only employ German doctors and that one could only work in that hospital if one was a German citizen. This section extends itself not only to central government but to officers of a health board, which is precisely the term used to describe a doctor in a health board hospital. It would also mean that a Dutch citizen who qualifies as an engineer could, under our law, be refused a job simply because he or she is a Dutch citizen, even though that person may speak better English than I do.

And know more about harbours.

I sometimes wonder at the advice given. There are areas of national security, whatever that is, where these issues may arise but I understood that we lived in a single market within which people were judged on their competence to do a job. That often means Irish citizens cannot get jobs in Germany because they cannot speak German sufficiently well to compete with German natives and therefore do not get the jobs. However, I am not aware of widely extensive provisions in each EU member state saying that in large swathes of the public sector one cannot have a job unless one is a citizen of this State. If there are such provisions, the illusion being fostered by the EU's propaganda arm in Molesworth Street is nonsense. There is no such thing as citizen's rights if one does not have the right to apply for jobs in the extensive public service which exists in each of the 15 EU member states and if one does not have that right, the Common Market is meaningless.

I think someone forgot we belonged to the EU and put this provision in the Bill because it was in other legislation which pre-dates the commitments we have now entered into. I have no strong feelings on this and it does not matter to me whether the Government accepts the amendment because it will not affect me nor anyone else about whom I am particularly concerned. However, I hate sloppy legislation because it is a reflection on both Houses of the Oireachtas. Where it is sloppy it should be amended and it is sloppy here.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Amendments Nos. 26, 27 and 28 are related and will be discussed together, by agreement.

I move amendment No. 26:

In page 35, line 24, after "where" to insert "taking all appropriate circumstances into consideration".

Regarding a point made earlier by Senator O'Meara, I have been a Member of this House for 11 or 12 years and I have come to understand the particular language of Ministers and Ministries. I also know that one should never take for granted or include the Department of Justice, Equality and Law Reform in anything other Departments do. It has always been reflected in my previous experiences that when the Minister of the day says he or she will look at something and make a serious attempt to consider it, that has always been the case. I have never found myself misled by those words before; I have always found them honest in terms of their response. It is true I have often been unhappy with what certain Ministers have brought back on Report Stage following a commitment on Committee Stage, but I have not come across a situation where a Minister undertook to examine something and came back on Report Stage to find absolutely nothing had been done. My understanding in this particular case was that the Minister was prepared to look it. I have probably examined section 37 in more detail than any other person because this is the section which causes me most concern. I have said a lot about it previously and I am getting more and more worried about it. I do not find any reasonable attempt being made by the Minister to meet the reasonable issues raised.

I made it very clear on Committee Stage that I had serious difficulties with this section. I indicated the kind of amendments I thought proper to make it more acceptable. I also indicated I thought those amendments were not acceptable to the Minister because such issues as the Supreme Court judgment. I now find it extraordinary and most unacceptable and contemptuous of the operations of this House that the Minister would come back without making any movement whatever on the issue. I know the Department of Justice, Equality and Law Reform does its business in this manner; they do not care much about the concerns of public representatives and they are not moved by the concerns of the people whom we represent. This is contemptuous treatment. I do not believe this is the way Ministers should do business.

The next time a Minister or Minister of State in the Department of Justice, Equality and Law Reform stands up in this House and indicates that he or she will look at a particular wording and come back on Report Stage, I will cite this instance for not believing them. If people thought it was clever to say, "let us put off the battle until Report Stage" that is reasonable enough; it is acceptable for the Minister of the day to say "let us have the war on Report Stage when we will have had time to consider it", but it is not acceptable if they do nothing in the intervening period.

I want a ruling from the Leas-Chathaoirleach as to whether it is acceptable under Standing Orders that the Report Stage amendments should not be available until less than 24 hours before they are dealt with in the House. This is not my understanding. I would like a ruling on the matter before the conclusion of this debate. We can all fight dirty if that is what the Minister of State wants.

During the Committee Stage debate on section 37 we found more and more issues of concern to Members. I described ethos as ephemeral, and so it is; it changes from day to day. Perhaps "ephemeral" is an over-statement. The reality is that it may not last 24 hours. I do not know how to interpret this legislation. I asked a question on Committee Stage which the Minister was not prepared to answer. I asked if we were talking about an ethos as defined by the particular religious body referred to in the legislation or about an ethos defined by the board of managements of every school and hospital. Can different boards of management of the same religious denomination have a different concept of ethos? Since the Minister of State has not been able to confirm otherwise, I must take it that that is the case.

During her response on Committee Stage, the Minister of State indicated the words in my amendment "taking all appropriate circumstances into consideration" did not create a difficulty from her point of view, but apparently they do. There was an extraordinary interjection by some Members on the question "ethos". It is important that this matter is put clearly and firmly on the record for the benefit of Senator Lydon and others who only half listen. From my point of view and that of my colleagues, when it comes to ethos I believe in parental choice. There is no question of my being opposed to ethos. I will fight and defend the right of parents to have a school of a particular ethos for their children as much as I will fight on behalf of a teacher who I feel is being abused by tolerance. It is not a question of being opposed to an ethos, neither is it a question of being opposed to or having a difficulty with a particular ethos. In fact, for the record, and speaking with my trade union hat and as someone who must deal with religious denominations every day, I must say that the larger the denomination the less likely it is to have difficulty with that issue. However, that does not always apply to people on the ground where there could be difficulties. I believe in parental choice and that means choice of a school of a particular ethos, whether that be denominational, non-denominational or multi-denominational. This choice must be protected.

A pluralist society is not about uniformity, it is not about creating a homogeneous society where everyone is liberal, where there is as much room for the woman saying the rosary in O'Connell Street as there is for the most progressive person within the context of society's framework. It is not about oppressive behaviour; it is about choice. But within that choice, people must respect the rights of those working within the system. The courts rule on these matters every day of the week; they find a balance between the rights of different people.

I cannot recognise how the words I am asking be inserted in this section takes from the integrity required by the various denominational groups or from the importance of the interpretation given by the Supreme Court. The fact that this matter is constitutional means just that; there is no added extra for it being constitutional. The Department of Justice, Equality and Law Reform talks about its constitutionality as if it found a crock of gold at the end of a rainbow. All legislation is supposed to be constitutional when it leaves the Department and is introduced in this House. It should not need to be tested in the Supreme Court. We expect the legislation to be constitutional and we work on that basis.

There is other legislation which can defend this argument. On Committee Stage I referred to the importance of section 15 of the Education Bill which requires a board of management to respect the diversity in society or in the community. That is important. Another circumstance to be considered would be what if the ethos changed? I go back to my description of it being ephemeral. If it changes daily, "ethos" is what we say it is today, it is the way it is written. We have not defined "ethos" and this is creating problems.

Section 15 of the Education Bill defines "characteristic spirit" which to all intents and purposes must mean ethos. But as was clearly enunciated by Senator Norris on Committee Stage, Chambers Dictionary's definition of "ethos" does not fit in here, or if it does, it does not make any sense in the context of the remainder of the Bill.

Is a nurse or teacher appointed to work in a religious institution and who may work there for up to 40 years, required to be aware of changes in the ethos or satisfy themselves on day one as to what it is when reference is made to respecting it? Is the board required to inform teachers of changes in the ethos of the school as it interprets them? How is an individual to be satisfied that he or she is conforming to the ethos of the school? This is similar to a Third World totalitarian regime where laws are made up from day to day and the people are not told about them. How are people supposed to make sure they are not undermining the ethos of the school if they are not to know what is the ethos? Even if they are able to determine it, it can be changed without them knowing.

These issues are crucial. We have spent long hours debating the protection of workers, young and old, involved in different industries and those seeking maternity protection, for example. This is yet another example. I have never had a difficulty with the need to protect ethos. I support the idea in a pluralist society that the ethos of a particular group should be protected. However, I have had difficulty at times with the ethos of one religious group which does not conform to the general objectives of the school curriculum as determined by the State but that is a matter for the State to deal with.

It is not the business of a teacher to undermine the ethos of a school and there can be no case for protecting a teacher who would deliberately attempt to do so. I have no brief on that but neither do I want people to do that. It is fair to ask that they know what is required of them and that is not the case in this instance. There is a broader set of circumstances involved here than is provided for in the Bill which states a religious institution established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values — I presume that is where schools are included — shall not be taken to discriminate against a person if it gives more favourable treatment on the religion ground to an employee or a prospective employee where it is reasonable to do so in order to maintain the religious ethos.

The ethos will have to be decided. The Minister of State's advisers did not look at the appointment procedure for primary school teachers when that section was drafted. Her Department has responsibility for aspects of equality where equality officers are often called upon to challenge appointments that have been made. They follow a rigid set of circumstances. They look at weightings given to certain desirable and essential qualities in the person to be appointed. Is it not the case that a certain weighting will be given to ethos? How will it become a reasonable and accountable appointment procedure? At what point in the procedure will it be decided it is reasonable to do something in order to maintain the religious ethos of the institution?

In over 3,000 primary schools, boards of management are advised by a selection committee. The committee may comprise the principal of the school and the chairperson of the board, among others. The selection panel usually consists of three people but may have five or more on occasion. It will come to a conclusion and propose the appointment of an individual to the board of management. The board defines the ethos of the school and also confirms appointments. Is it at that point, when the selection procedure has concluded, that it will decide on the religion ground that one individual is more qualified or acceptable than another in order to maintain the religious ethos of the institution? Is a new process entered into at this stage? Is ethos raised after the appointment or is it now appropriate for a board of management to state Catholics need not apply or Protestants need not apply because this is necessary in order to maintain the religious ethos of the institution? What is to stop the board doing that? Is it entitled to do that?

We are entering a morass. I referred to certain difficulties which cannot be resolved by my amendment, but at least it allows an individual to defend himself or herself by taking the wider picture into consideration. I cannot see how that undermines the objectives set by the Department to protect ethos. I do not have a difficulty with the protection of ethos but I have with the Minister of State's refusal to accept the amendment. It does not undermine what she is trying to achieve or take from the points made by the Supreme Court. The fact that it will not be accepted is not helpful in terms of protecting employees.

Is there a hidden agenda? What is the Minister of State trying to achieve that is contravened by my amendment? What in my proposal changes the direction of what she is trying to achieve? What are her advisers saying?

The Bill states:

If it gives more favourable treatment where it is reasonable to do so in order to maintain the religious ethos of the institution.

My amendment states:

... where taking all appropriate circumstances into consideration it is reasonable to do so in order to maintain the religious ethos of the institution.

Where is the difficulty? I have outlined appropriate circumstances. It should be appropriate for an individual to argue this is the ethos today but it was not the day he or she was appointed; that certain events occurred which proved this was a change, for example, if a school decided to take a more fundamentalist approach than it did originally. We heard a woman interviewed on "Today with Pat Kenny" who runs and determines the ethos of a school and she put her views forward. There were problems in the school arising from this fundamentalist movement.

The Department has just simply decided it does not have to accept amendments and has returned to the old days where it does not have to do business. Ar scáth a chéile a mhaireann daoine.

An Leas-Chathaoirleach

In relation to the question raised, the procedure is that normally amendments are in two days previously but the Cathaoirleach has discretion in the matter and it was exercised. It might do no harm to raise that in another forum in the light of what the Senator said and what Senator O'Meara said this morning.

I do not want to go over the ground that Senator O'Toole has covered so well. I will say that when I arrived in this House in 1981, on the first Bill on which I was involved on Committee Stage, I was advised by a colleague on the independent University benches that it was convention that when a Minister undertook to look at something again it meant that the Minister was acknowledging there was a case. It was a question of the Minister coming back with some proposal to meet the case. That advice came from the then Senator Mary Robinson, who had been in the House since 1969. Over a 30 year period a convention had developed where there was an understanding that when a Minister undertook to look at something again, it meant they would propose something. It never meant they would propose nothing. They wanted to come up with something improved, not go back, think about it and stay where they were. I do not want to get involved in accusations of deliberately misleading the House but it was not the right way to treat this House and it is not the way for the Minister for Justice, Equality and Law Reform to expect this House to be reasonable with him or the Minister of State if they want our co-operation in the future. It is not the way to win friends and it is not in the spirit in which I am used to Committee Stage of legislation being carried out.

One should not have to say this in this House, but I am a religious person. I believe in the value of religion. I sent my children to a Catholic school by choice and I am sick of this presumption that because you do not like the way a large and powerful institution has used its position in society that you are somehow attacking religion. I am tired of this and I have to say that if it comes up again from the Government benches I will have to assume bad will because they are not listening to what is being said here, they are finding cheap shots to make a point. I value religion in society and that is why I resent the playacting of certain people who use religion as an excuse for their own personal power.

This is the problem with section 37. The intent is not objectionable. As Senator O'Toole said, and he is in a stronger position to say it than I will ever be, nobody is going to defend a teacher who sets out to undermine the accepted ethos of the school where he or she works. Nobody is concerned about that, but we are concerned about the fact that ethos should be something people can understand and it should not change because the Reverend Mother in a convent changes from someone with liberal views to someone with conservative views, because the principal of the school changes or the parish priest changes.

That is why I have an amendment in this group of amendments to invite the religious groups to define what they regard as the ethos of the school. They should have to satisfy the various agencies, including the Equality Agency, that the reason they are discriminating against somebody is because of a clear conflict with the ethos as defined by the religious institution, not because they felt that someone's skirt was too short, their lifestyle was different, they wore too much jewellery or they wore a particular style of dress which was disapproved of. It should not be something ephemeral which can change with the opinions of individuals. That has nothing to do with the defence of religious values and institutions or parental choice. It is do with defending individuals who use good ideas and values to justify their own prejudices. All we want to do in these amendments is to reduce the possibility of unscrupulous people misusing those terms to do things that have damn little to do with religion and nothing to do with justice or equality.

I second the amendments. I would like to comment on the behaviour of the Ministers involved in this because it calls into question the whole notion of ethics. It does not seem their behaviour on this occasion has been ethical. This House was left under the impression that there was going to be some kind of response. That clear indication was given on the last occasion this Bill was debated. There is another piece of neat footwork, where the evidence of this avoidance of the normal responsibility is concealed from the House until it is too late, by a most unusual tactic, where the amendments are received so late. It is perfectly clear from the Leas-Chathaoirleach's advised intervention that there is concern at the level of that office as well. It raises the question of whether the Department and the Ministers involved understand the meaning of the word "ethics". They have behaved in a most unethical manner on this occasion. It is a serious matter.

I tabled amendment No. 27, which seeks to delete the words "reasonably necessary" and substitute "essential" because we need to be very restrictive in permitting the power to discriminate and we are not being so restrictive in this section as it stands. We are handing over wholesale the capacity to discriminate to a group whose recorded history should make us very unwilling to trust them. It would be irresponsible to take any other view historically. I am speaking of all Churches, not just the Roman Catholic Church. When I spoke last, I referred to the Roman Catholic Church in particular. This was taken amiss by some people. May I point out that within the last couple of days the question of the behaviour of Cardinal Gruscha, Archbishop of Vienna, has arisen. When Cardinal Gruscha was accused of the sexual abuse of students in a seminary, the response from the Vatican by the present Pope was to express compassion for the hierarchy. There was no compassion expressed for the victims. It was denied and hushed up. It does not just happen in Ireland, it is a general phenomenon. Now we understand that there is an acceptance by the Vatican that there was substance in these charges and there were victims to whom no compassion whatever has been shown.

This all fits into the understanding of what we mean by ethos. Even according to the defective Chambers dictionary definition there is the suggestion of an observable time scale. It seems to me the whole notion of ethics must include an observable and consistent pattern of moral ideas and behaviour. That worries me, particularly regarding gay people. I am taking an interest from that point of view because there are so many people who have been victimised as a result of this kind of prejudice. In any examination of discrimination against gay people, whether you take John Boswell, Wainwright Churchill or any of the academic authorities on this matter, they automatically go back to the Judaeo-Christian ethic.

The Judaeo-Christian ethic is the source of discrimination. Yet, we empower the source of discrimination and the capacity to continue discrimination with no let or hindrance. This is dangerous and seems to abrogate all kinds of moral responsibility. Are the Minister and her advisers afraid of getting a belt from a crozier? I have news for them — there is scarcely a belt left in the crozier these days and there is nothing for them to worry about. In the case that it is assumed I am being deliberately sectarian, the Anglican Church, to which I belong, claims to be part of the one true Catholic Church and we also have croziers.

Which crozier?

The Minister may not be in any great danger from a belt of an Anglican crozier, but gay people employed in jobs controlled by the Irish Anglican Church are. I remember a case in the past 15 years where a young man was dismissed from employment in a parish not a cuckoo's spit from the back wall of this House. He was told that if he did not end his relationship — and the distinction between homosexual orientation and homosexual practice is relevant here — his job would be terminated. His job was terminated and was advertised as suitable only for a married person, which is illegal. However, the Church got away with it and the relationship was effectively destroyed by its intervention. One of the partners is now fundraising for AIDS in south California and the other went to London, formed a second relationship, as a result of which he died of AIDS. That is the kind of discrimination of which I accuse my Church, of which I am a regular, loyal member and communicant.

I support the points made by Senator Brendan Ryan and Senator O'Toole. It is not disloyal to Christianity to resist entrusting wholesale the capacity to discriminate to people who have, more than any other section of society, showed themselves quite unfit to be permitted this power, which every Christian Church has consistently abused. In the past ten years I have known victims of this power and capacity to discriminate. For that reason I object to this section.

Senator O'Toole spoke about discrimination on the grounds of religion in schools, which I am sure has happened in non-Roman Catholic schools. I hope it does not still happen. I know one of the reasons why my Church has discriminated against people is fear. It thought religion was contagious and that if a Roman Catholic teacher was given a position of prominence in a school and he or she was a good teacher, it would impact so substantially on students they might be induced to change religion.

When I taught in Trinity College complaints were made to the Provost about me. They were not that I was a bad teacher, but the reverse. They were rather that I was too good a teacher, which is flattering in a curious way. The fact that I was a good teacher and students enjoyed my lectures represented a threat to the moral and sexual identity of the students; the fact that I spoke interestingly about E.M. Forster, D.H. Lawrence, James Joyce and Gore Vidal might induce people to change their sexual pattern. This was absurd and obviously the university had more sense. Discrimination reared its ugly head unsuccessfully.

These fears are fanned by the gloating in certain aspects of the Irish media which discusses the slightest chance that Princess Margaret may turn or whether Princess Diana was a secret Catholic.

What about Tony Blair?Mr. Norris: There is a real plum. Senator Connor can have him — anyone who is a friend of Rupert Murdoch is no friend of mine or a friend of the human race. He can go to Rome with the horrid Ann Widdicombe and her little porkpie hat. Nothing could be more guaranteed to sink what James Joyce described as the leafy barge of the Bishop of Rome. There are boatloads of those Conservative bowsies——

I ask the Senator to return to discussing the amendment.

I was getting into my stride.

I am not recruiting.

I offer the Minister an alternative suggestion, which Senator O'Toole reminded me of and which I made to the former Minister, Mr. Taylor. Perhaps section 37 (1)(b) should state that discrimination is acceptable if a body takes action which is reasonably necessary to prevent an employee or a prospective employee from "deliberately" undermining the religious ethos of the institution. There should be some active choice. I would go so far as to suggest "deliberately and consistently" should be inserted.

Ethos has not been defined and there is as yet — unless Senator Brendan Ryan's excellent amendment is accepted — no requirement of what it consists of. If one is given no guidelines and unwittingly transgresses on one occasion by some unthinking act, gesture or word, one should be given a second chance. Therefore the phrase "deliberately and consistently" should be inserted in section 37(1)(a).

When I spoke on this section the last time the Bill was dealt with in the House by the former Minister, Mr. Taylor, I had no definite evidence to prove my fears about how this section would affect young women pregnant outside marriage. Since then, despite the fact that the Minister for Health and Children has not published the report commissioned by the previous Minister for Health, Deputy Noonan, on the number of women travelling to England for abortions, those who researched it have spoken at various conferences. I regret the Minister has not published the report although it has been on his desk for three months. The recommendations will not be published. Some insight has been gained from listening to those who did the research speak at conferences.

Last year I spoke about how a considerable number of middle class young women were fearful for their employment if they became pregnant outside marriage and that it was one of the reasons they resorted to abortion. Abortion can never be the preferred end to any pregnancy. I am anxious that anyone would resort to abortion because they feel they may be dismissed from employment.

Some of the research undertaken by Evelyn Mahon and her co-workers in Trinity College was presented at the CURA meeting last week. Ms Mahon reported that one of the most important reasons why young middle class women aged 20-24 years had abortions was because, despite the change in attitude towards single motherhood, they worried about the stigma of single motherhood on them and their parents, as well as their fear of dismissal from employment. This year I do not have to rely on private conversations with patients or anecdotal evidence from colleagues or the reports of various family planning agencies. When the report is published, I believe we will realise that this issue is an important one. It is important to note that only 2 per cent of pregnancies within marriage end in abortion whereas 25 per cent of those outside of marriage do.

I am sure the Minister of State will say that she could not envisage any of these institutions dismissing an employee because she was pregnant but I am not sure that is true. A considerable number of women would certainly fear dismissal and, for that reason, might decide to have an abortion. If a woman is dismissed from employment because it is known locally that she had an abortion, how can she possibly challenge the dismissal without everyone learning of the reason for it, which she is almost certainly endeavouring to keep secret?

It makes me speechless when I hear people saying that Irish people abhor abortion. Given that almost one in eight Irish pregnancies end in abortion, there is obviously a sizeable portion of the population for whom this does not hold true. If we do not ensure that the kind of situations which I have described are protected by legislation, I do not think we can honestly say we are committed to lowering the incidence of abortion in this country. The fact that the abortions are actually carried out in England is immaterial. I would like the Minister of State to address that in her reply. I know she is personally concerned about these issues and I am very glad she is here today as I would like to know how she feels about this area. I know I will have to sit here and accept that an area in which women can be discriminated against will pass into the Bill as we do not have the necessary numbers to win a vote. Judging from what happened between Committee and Report Stages, I do not think there is any likelihood of any amendments being made to this legislation.

At the outset, I feel it is important for me to defend both the Minister and Minister of State in regard to comments that commitments made last week on Committee Stage were not honoured. I was present for the Committee Stage debate and Minister O'Donoghue stated he would consider the points being made.

We have heard a great deal of brouhaha about ethics and late amendments being tabled. I understand that as recently as 24 hours ago some amendments were telephoned in. We must be balanced in this debate. As far as I can gather, the only amendment which met the two day deadline requirement was Senator O'Toole's. We must be fair. Senators should not put on record criticisms which not only reflect unfairly on the Minister but also on the departmental staff who cannot defend themselves. That is outrageous. I would welcome a system where amendments would be received within the two day deadline as far as possible. However, Senators should not come into this House castigating the staff of the Department of Justice, Equality and Law Reform.

I remind the Senator that it is not customary to refer to departmental staff.

As they were castigated, I feel I am entitled to defend them. Accusations have been made in this House which, in my view, are absolutely unfounded and unfair; it is akin to the kettle calling the pot black.

I do not doubt that the Senators who have tabled amendments to the Bill are well intentioned. Senator O'Toole said the Minister should not be criticised just because he did not accept his amendment. I am quite satisfied that the Minister took on board all of the comments made in this House on Committee Stage and consulted his officials about them.

There are 13 proposed Government amendments which are along the same lines as those tabled by Senator O'Meara. Almost one-third of the amendments have, therefore, been agreed to.

They were drafting amendments for the most part.

They are an indication that the Minister took Senators' concerns on board and it would be unfair in his absence to criticise him for discarding the comments made. The Minister did reflect on them and certain amendments have been taken on board. Having given the matter full consideration, he was obviously unwilling to accept some of them.

I totally reject the notion of fixing ethos. Ethos is a set of principles or values which in my view are fluid and change from place to place. If one examines Greek philosophy, one will come across the ethos of the Stoics and Sophists and the principles of natural law which advocated that people do good and not evil.

The ethos of various Churches and the schools being administered by them may change. If one were to try to define a set of principles for every school and institution in the State, one would end up with hundreds of rules and regulations. Ethos is a fluid concept which should be allowed to change over a period of time. One could consider the ethos which prevailed in the 1940s when a man could go to the fair on his horse and cart to sell a few banbhs. He could drink ten or 12 pints and a few whiskies, sit into his horse and cart and let the horse make its way home while he slept on a sack of flour in the cart. That no longer holds true; the man who goes to the fair now dare not even drink one pint in case he is caught on the way home. It may not be a very good example but the point I am making is that it is not possible to fix or clamp an ethos in one place. That would be dangerous because ethos and values will change over the next 20 years. Principles and values which were common 20 or 30 years ago have changed radically and this is nowhere more evident than in the Catholic Church. In this regard, I believe it would be wrong to set strict parameters and principles to the ethos of a Church, school, hospital or whatever. This legislation represents a balanced and reasonable approach and is not just the approach of the Minister or Minister of State.

This legislation has been debated for over four years and we are in danger of losing the thrust of it. Certain aspects of the Bill have been tested in the Supreme Court and those who advised the previous Government on it are now tabling amendments to it today. I accept the bona fides of the amendments but, having taken everything into consideration, I do not accept them. I have very strong feelings on tying down the notion of ethos as it is a fluid principle and must be allowed to expand and change. If it is tied down, serious problems will be experienced in regard to court challenges and so on. The legislation is fair, reasonable and balanced.

I want to comment on the criticism levelled against the Minister arising out of the indications or intent he seemed to convey on the Committee Stage debate. I acknowledge the sincerity, enthusiasm, time and thought which Senators have given to their amendments. No one on this side of the House is criticising or questioning their motives or intent. Nevertheless, the question arises whether a Minister, responding in such circumstances on Committee Stage to sincerely and strongly held views and concerns, should give a commitment to reconsider his position, or that of the Department and Government, on Report Stage. If a Minister gives a commitment to consider, does that mean that unless he delivers in some shape or form he will be accused of deception? That is the message that is coming across to me.

According to some Senators, the Minister seems to have deceived the House, but I do not accept that. I heard most of the Minister's contributions the last day. It is my clear recollection that he gave a commitment to look carefully at everything that was said and to do what he could to see if any advance could be made. I am sure that, in reconsidering the matters, both the Minister and the Minister of State have gone as far as they can in trying to meet these concerns. Therefore, it begs the question as to whether in such circumstances in future a Minister should give any commitment on Committee Stage to reconsider. Should he not simply say "yes" or "no" and "let us vote"? If that is the case, is it not discarding or snubbing an attempt by a Minister to be reasonable, inclusive and to reach out? Maybe I am misinterpreting the situation.

Much of the criticism that was levied across the floor was completely unreasonable. To be fair to Senator O'Toole, his amendment was the only one submitted on time. Therefore, anyone else who is complaining about Government amendments not being in on time should look at their own record. People phoned amendments into our office yesterday evening at 5 o'clock, while some changed amendments and submitted 12 new ones at lunchtime yesterday, and others tabled amendments throughout Tuesday. People who live in glass houses should not throw stones.

It is all right for people to throw stones as long as they are careful to keep open the window through which they throw them.

The Minister of State should be allowed to reply without interruption.

It is unfair on our Department for Senators to cite a Standing Order requiring amendments to be submitted two days before a debate when they are not prepared to comply with the Standing Order themselves. I have no doubt the regulation has not been complied with in recent legislation, from ours and other Departments, that has gone through the House. Senators who have made these accusations across the floor of the House should discuss among themselves as to where all these unfair accusations arose from. They should reconsider the matter because what has gone on in the last hour or so it is both unfair and untrue.

I would refer Senator O'Toole to what I said previously, which is on the official record. I said that Senator O'Toole met with the Minister, Deputy O'Donoghue, to discuss his amendment No. 79. The Minister had considered the Senator's concerns and I was not certain of the impact of the acceptance of this amendment but I know Senator O'Toole wished to change it on Report Stage.

The Minister could not in any case have accepted the amendment on Committee Stage because the Senator did not have the correct text. In addition, we were not certain of the impact of it at that stage and, therefore, we could not accept. I did say, however, that the Minister, Deputy O'Donoghue, was seeking advice on the point raised by the Senator and that he would follow up the matter to ascertain whether this amendment could be accepted and that he would revert to the Senator on Report Stage.

I went on to say I knew the Senator had to word the amendment correctly for Report Stage and we had to seek further legal advice on it. Therefore, what the Senator levied across the floor of the House today was totally unfair because his own amendment was wrong on Committee Stage and had to be changed. It could not have been accepted, even if our advice was that it should be.

My amendment was not wrong on Committee Stage.

Senator O'Toole will have the right of reply.

The Senator himself made the point that he wanted to add a word to the amendment because he thought it would be better. At the time I felt I was most reasonable with the Senator. I said that we wanted to seek more advice on the matter. On Committee Stage I was depending on the advice of my Department, which I read into the record. Since then we have been awaiting the legal advice from the Attorney General's Office as to whether the Department's advice was correct and that has since come through. The important difference between what we said to the Senator on Committee and Report Stages is that the Attorney General's Office has supported what we are trying to say.

We genuinely tried to do everything we could to meet Senator O'Toole's request. The Senator knows that the Minister met him about this. He knows that we accepted his genuine concern on this matter. We wanted to examine every aspect of it because we accepted that the Senator was genuinely concerned about it. Today, however, he went over the top in accusing us of not being genuine when, in fact, we were so in obtaining further advice to see if there was anything further we could do on Report Stage. We have been working on that matter in the past week.

The Senator said I did not answer a question on Committee Stage concerning denominational institutions, but the record shows that I did. If the Senator reads section 37 it will clarify an aspect of it. The rest of it is on the record, concerning the Director of Equality Investigations and the legal aspects. These decisions will be determined by the court. There is a reference in the legislation to institutions and I read out a separate reference to the Supreme Court judgment. We went through all that in detail on Committee Stage, so it is unfair of the Senator to say that I did not answer the question.

The Minister of State did not answer the question.

Senator O'Toole will have the right of reply.

The Senator can look through the official record. I will not go through the entire Committee Stage debate again. I clearly remember going through this matter with the Senator in detail on Committee Stage. The Department has been more than helpful to the Senator. We have been more than open and honest with him in our attempts to take his genuine concerns into consideration. The Senator should also accept that we have been genuine in our response to him. The fact that we have not only been backed by the advice we had on Committee Stage, but also by the advice of the Attorney General's Office, leaves us in an even stronger position concerning the points we made on Committee Stage. I know that is not good news for the Senator, but if the situation was different we would have said so. There was a difference between Committee and Report Stages.

As Senator Liam Fitzgerald pointed out, we could have refused to accept the Senator's amendment on Committee Stage, but we have examined the matter since then. It should at least be acknowledged that we did not use a sledgehammer on Committee Stage by refusing to demonstrate an interest in the Senator's concerns. He should at least accept that instead of throwing abuse at us across the floor.

I sometimes wonder if Senators listen to what they are saying.

I do, it is delightful.

I took note of what the Senator said earlier about my having "trampled all over reasonable amendments" and having done "nothing in the intervening period". My officials were up until 1 o'clock in the morning for most of the last week, looking at all the many amendments. A huge amount of work has gone into it during this period, so it is hard for us to listen to someone who says I did nothing in the intervening period.

I will explain that to the Minister of State in one minute. It will be very simple.

It is important for Senators to listen to a debate. It may often be boring if the Minister is reading out a long text, but sometimes the very clarification or explanation that Senators' are seeking is within that text. Senator Norris pointed out this morning that he was against something but when it came to a vote he changed his mind because of something the Minister had said. At least he was listening and that is the important point.

Inconsistent is my middle name.

It is important to listen. I will go through this again and hopefully it will be of help to Senator O'Toole. We reviewed the matter in the light of the debate. We were on advice to avoid altering this area. We spoke in detail on Committee Stage about trying to keep a delicate balance. We also mentioned that when the Bill was referred to the Supreme Court we were all expecting difficulties with section 37, but that section was held to be in line with the provisions of the Constitution and the Supreme Court went on to find difficulties with other sections of the Bill.

On Committee Stage we were reluctant to accept amendments because our advice was that this section had been found to be constitutional and, at the same time, we were reluctant to knock Senator O'Toole's amendment because we knew he was very genuine in tabling it. But we were operating on Committee Stage under not just the advice of the Department but the long consultation process which we had been gone through with the many people who had an interest in this section.

It is important to recognise that the Department met the three teachers' trades unions, the Council of Religious in Ireland, IBEC, ICTU, most of the religious denominations and many other people who sought to be involved in the consultation process. There is a wide sector of Irish society involved here. This is where we came down to operating within the constitutional aspects and maintaining a delicate balance.

It has been essential in devising the text to look at the legal, social and political reasons and, from a constitutional point of view, to balance the rights of children to an education, the rights of parents to choose the nature of that education and the recognition granted by the Constitution to the denominational system of education, and to operate today and last week knowing that we were operating with a text which was found to be constitutionally sound. I know Senator O'Toole's opinion on that, but this has been found to be constitutionally sound. We said this last week and we went away from here still anxious to look at what he was trying to do, and we have looked at that in great detail since.

Amendment No. 27 seeks to delete "reasonably necessary" and substitute the more precise terminology of "essential". This would alter the essential balance which is such an important part of the section, but I would point out that reasonableness depends on the facts in each case and virtually all Irish law works on that basis. The use of the words "reasonable" and "reasonably necessary" implies that the test is to be objective and that the matter is to be resolved on a case by case basis. The final decision on what is "reasonable" or "reasonably necessary" to protect ethos will rest with the court and the court, in making its overall decision, will be conscious of the need to reconcile the various constitutional rights. We went through all that because I know some Senators were concerned about that last week.

Senator Brendan Ryan's amendment is similar to an amendment to section 37 which he proposed on Committee Stage. At that point, we indicated some reservations that the amendment seems to place a considerable obligation on the applicant institution to prepare statements and to explain its reasons publicly for seeking to utilise the exclusion provided in section 37(1). I would be concerned that these obligations are neither appropriate nor proportionate to the purpose for which they are intended, which is to ensure that individuals may exercise constitutional rights to maintain a religious ethos in denominational institutions.

I am firmly of the view that changing the wording of the Bill would have adverse effects. In the first instance, we could no longer be sure that the changed wording is constitutionally sound — that is not the only guiding principle to which we were working but it is one which has been there with us. Second, the meaning of the sentence would be altered. Our advice is that the meaning of the sentence would be altered and it is safe to say that such a change would have some effect.

I am aware of Senator O'Toole's very legitimate concerns on this issue and we would like to allay his fears in relation to the word "reasonable". The Senator may consider the word as it is used in this section to be the same as the word "plausible"——

Plausible?

Yes. He may consider the word as it is used in the section to be the same as the word "plausible", but this is not the case. In the legislative context, the word "reasonable" has a very specific meaning and relates to an objective test of reasonableness rather than a subjective one.

In the case of section 37(1) an institution seeking to rely on the section will have to do far more than advance a plausible explanation. An institution would have to show that it has behaved in a reasonable way, based on a careful, thorough and fair analysis of all the circumstances. That is what the word "reasonable" means in the context of this section, and I hope it allays the Senator's concern.

In terms of Senator Norris's amendment, this provision was considered at length by the Supreme Court. To remind Senators again, the Supreme Court stated that in relation to section 37(1) the final decision on the question of ethos will be for the courts to decide. The courts, in making their overall decision, will be conscious of the need to reconcile the various constitutional rights involved. Those constitutional rights range from the right of free profession and practise of religion to the rights of parents to denominational education and the rights of teachers to earn a livelihood.

Amendment No. 28 in the name of Senator Ryan appears to be prompted by a fear that this provision may be open to abuse. The Director of Equality Investigations or the Labour Court will have to be convinced that the exclusion provided in section 37(1) is justified in any particular case. It will be for the institution concerned to satisfy the director or the Labour Court that it has acted in an objective, reasonable way. Accordingly, I believe this provision strikes an appropriate balance between the rights of denominations and those who use, and work in, these establishments and it has done so to the satisfaction of the Supreme Court. I hope Senators will accept the position too.

The legal advice we received on this matter is quite specific. I cannot over-emphasis the importance of the balance which has been achieved with regard to the rights of children, parents and the denominational system of education. Section 37(1) has been judged by the Supreme Court to be constitutionally sound. Any altering in the wording will, I am advised, alter the balance and ultimately damage the soundness of the provision as it now stands.

Not to ignore Senator Henry's queries, EU case law specifically covers discrimination on grounds of pregnancy. There is case law to support the Senator's concerns.

I am sorry the debate has been so contentious. If we could have published our amendments earlier we would have done so, but much consideration and effort have gone into the matter in the Department during the past week in particular, aside from the past six months when the Department took on board the difficulties which the Supreme Court posed for us. In particular, during the past week the Department has taken on board the concerns of Senators, particularly those of Senator O'Toole and others, on this section. We have tried to be as open as possible.

We have been criticised today for saying we would be open with Senators and do whatever we could. However, that is what we have genuinely tried to do. Our advice was to hold the original position rather than try to do more for Senators. As Senator Fitzgerald said, we have been hammered with a sledgehammer for our efforts. Perhaps it would have been simpler to have said at the start that we would not accept the amendments. However, that was not our attitude because we wanted to do all we could.

The Minister of State has gone into great detail. Some people might draw conclusions from the fact I have tabled only one amendment on Report Stage. I wish to put on the record that I have been dealing with employment legislation for over 20 years. I represented the first teacher to win a case under the Employment Equality Act, 1977. I have been seeking changes in that legislation since 1978. I am completely committed to having this Bill enacted. I have not dealt with it just as a teacher and a representative of teachers, but also as a member of the executive committee of the Irish Congress of Trade Unions in regard to the sections on disability and women. I have looked at every aspect of the Bill.

I suspect I have been involved with employment equality legislation for longer than anyone in the Department, unless they worked in the previous Department which dealt with it. I am not talking here about the recently dissolved Department of Equality and Law Reform but about people who worked with Michael O'Leary in 1977 in the original Department of Labour. I wish to put my bona fides in that regard on the record.

The fact that the Minister of State's officials may have been ploughing through amendments, since Committee Stage is irrelevant. Her Department suggested that Report Stage should be taken today despite the fact that 190 amendments were tabled on Committee Stage, many of which would have to be dealt with again on Report Stage. I argued that was too soon.

The House has been misled again about my amendment. I did not put forward the amendment two days ago or last week but two months ago when I spoke to the Minister and his advisers in the Department. I outlined my problems with this section in great detail and we negotiated across the table. The Minister made it absolutely clear to me that he could not move on the issues of reasonableness and the other more significant amendments which I wanted to make to the section. I recognised his position and that there was some sense in his argument about losing the delicate balance in terms of the Supreme Court judgment. I did not have a problem with the Supreme Court finding that section of the Bill constitutional.

However, the Minister asked me during that meeting in November or December if there was a bottom line. I said there was, that I needed to be sure "reasonable" would be given the widest context, taking all the circumstances into consideration. I did not say last week that the amendment was wrong. I said that in order to get closer to the Minister's position I would qualify the word "circumstances" with the word "appropriate", which I thought was a better way of doing business. I was led to believe by the Minister that this would be considered.

Being told that the Department only looked at this last week confirms what I believed. I do not know what the Department was doing for the past two months. I made it clear I was going to put this forward three months ago. I gave the wording to the Department last week and I formally submitted it on time to the Seanad Office over the weekend. It is not true to say this was part of the Department's ploughing through amendments.

I have been dealing with Departments and negotiating across tables for long enough to know when I have been strung along. I did not realise it on this occasion, although I should have done so. If that is castigation, then so be it. I have not been given a fair response.

Senator O'Donovan said that ethos may change. It might have been helpful if the Minister of State had responded to Senator O'Donovan, who told us at length about how people can no longer get drunk at fairs and how that was a change of ethos. That is totally irrelevant to this Bill which refers to religious ethos. The intervention which was made last week about the ethos of gaelscoileanna is also irrelevant. They may be very relevant to people's lives and work but they are not relevant to this section which refers to religious ethos.

I accept this is a narrow ground. Senator O'Donovan made the point very forcefully that ethos may change and evolve. I do not know where he was when I was speaking because that was the point I was making. I said that a teacher who is appointed today could be told in 20 years time that he or she has undermined the ethos without being told where the goalposts have moved or what changes have taken place. I accept the point that ethos can change. I just want to know whether a worker is entitled to be made aware when the rules governing the ethos are changed. Workers should have that entitlement but it is not in the Bill. This will be crucified on that basis because they will be told they should have known the ethos had changed.

The world has changed greatly in terms of the private issues which touch on morality and ethos. Approximately one in five children are now born to single mothers, some of whom are teachers. Who knows how many births — perhaps one in 12 or one in eight — are terminated by abortion? Senator Henry and others have recently cited those figures. The world is changing. We are all aware of the existence of marriage breakdown, the formation of new relationships and second families, and divorce. These matters touch on the issue of ethos. Surely it is fair, right, proper, just and equitable to let people know where they stand on those issues in the context of employment equality legislation.

It is unfair of the Minister of State to offer as a response that my amendment would alter the meaning of the sentence. I do not know who wrote that response or what it is meant to convey. Did someone seriously think we would argue for two hours about a word which would not make any change? What kind of nonsensical response is that to give me if my proposal is being taken seriously? Did someone seriously think I would have a half hour meeting with the Minister and spend an hour on Committee Stage and a further hour on Report Stage discussing words which would not alter the meaning? Of course, it alters the meaning. I outlined how it might change the meaning.

The Minister of State did not quite indicate in her response what the Attorney General said. She said it was necessary to avoid altering it significantly and that it was a delicate balance. I have no difficulty with those two comments because I began from that position. That is why I tabled an amendment which did not alter the delicate balance of the rights of different groups. I listened closely to the Minister of State. She listed twice the people whose rights we must protect.

I cannot see how the inclusion of the words I proposed will change the rights of parents, the religious or teachers wanting to have a particular ethos in a school. The Minister of State did not attempt to indicate to me how the balance would be altered, in whose favour it would be altered or against whom it would be altered. She did not address this issue.

Every time I have spoken on this stage of the legislation I have accepted the Supreme Court's judgment which found it to be constitutional. Let us take a close look at what it said. On page 56 the Chambers Dictionary is mentioned when defining the term "ethos" and the difficulties involved. It is my favourite dictionary because it always favours the underdog and uses the letter "z" instead of "s". It is always the first to introduce new words, particularly words that are not found in other dictionaries. As Senator Norris mentioned, it was the first to include the modern definition of the word "gay" but I do not think it has its place in legislation. The Supreme Court judge found the section to be constitutional and went on to say how it would be used in the courts. He also indicated how judges would come to their conclusions. My proposed wording is in the context of that part of the Supreme Court judgment where there is a lack of clarity. This was pointed out by the judges.

I did not understand the point made by the Minister in relation to the term "plausible". I do not remember using that word. She said "reasonable" means taking all the circumstances into consideration but that is only part of it. I did not object to the term "reasonable" because it is a well established legal concept. I agree with everything she said about the interpretation of the word "reasonable". Hardly a week goes by that I do not have to argue that point with a teacher who wants to know what it means in a document. I have no doubt about what it means. The Minister of State's definition of the word "reasonable" was almost the same as the one I used in my amendment and that is why I cannot understand why she cannot accept it. She said that my proposed wording altered the meaning of the sentence. I do not understand those two positions. If the word "reasonable" is included and means exactly what I want it to, where is the problem?

The Minister of State's advice is inaccurate. It is also inaccurate as regards the sentence I asked her to repeat. I am not speaking as a lawyer but as someone who deals with this issue every day. For the Minister of State to say that the court will determine ethos taking into consideration the issues that she said is completely wrong in the context of the legislation. The court may decide whether the people who determined ethos were fair and reasonable but they will have to have in front of them somebody's determination of ethos before deciding whether it is reasonable. If the ethos is not determined how can it be said someone undermined it? It will not be up to the court to determine ethos. As pointed out in the judgment, the court will determine whether the board of management was fair in its interpretation of ethos or if the employee undermined the religious ethos. It is incorrect to say the court will decide what the ethos is taking into consideration all the rights of the other people. The court will only take the rights of other people into consideration when they are determining whether the application of this section was correct. The application of this section requires somebody to determine what is meant by religious ethos. Is the ethos undermined if a teacher is in a second relationship, their marriage has broken up or the teacher is a single mother, etc? These issues must be dealt with. This is wrong, inequitable and unnecessary. I only asked for a minor change to be made. I have campaigned for this legislation for a very long time. I confined myself to tabling four amendments on Committee Stage and only one on Report Stage to facilitate this legislation going through easily. I discussed this amendment with the Minister and the Department. It is a clear amendment which does not alter the "delicate balance" required following the Supreme Court judgment that the section was constitutional.

The Minister of State said she answered my question on Committee Stage. I recall that I asked who will determine the ethos of the school? Will it be the religious denomination which owns, runs or is patron to the school or will it be the individual board of management? I make this point in the context that we have almost 3,000 Catholic primary schools. Can each of those Catholic schools have a different ethos? Does religious ethos mean the ethos determined by the religion or can each Catholic school determine its own ethos? I represent members of the INTO who come from every part of the country and from both sides of the Border. I regularly meet the Catholic authorities in the diocese of Derry who have schools in both jurisdictions. I have to deal with this issue on a regular basis. I try to have everyone in agreement on what religious ethos means and how someone be charged with undermining it. I ask the Minister can we have 3,000 different types of ethos or is there just one religious ethos?

Can an employee in one of these institutions be told what kind of religious ethos they must comply with or when there are changes being made to the ethos? How can they find out about it? We will rue the day. I have already said this on Committee Stage and I will say it again. The first time that I come across a situation where this legislation is being abused I will ensure that it is fought to the limit. The INTO will fight this measure in Europe if necessary to establish the fundamental rights to which people are entitled. It is a pity that this very fine legislation is blotted by this unacceptable section.

Amendment put.
The Seanad divided: Tá, 8; Níl, 17.

  • Connor, John.
  • Cosgrave, Liam.
  • Costello, Joe.
  • Doyle, Avril.
  • Henry, Mary.
  • Norris, David.
  • O'Meara, Kathleen.
  • O'Toole, Joe.

Níl

  • Cassidy, Donie.
  • Chambers, Frank.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Liam.
  • Fitzgerald, Tom.
  • Gibbons, Jim.
  • Glynn, Camillus.
  • Kett, Tony.
  • Kiely, Rory.
  • Lanigan, Mick.
  • Leonard, Ann.
  • Mooney, Paschal.
  • Moylan, Pat.
  • O'Brien, Francis.
  • O'Donovan, Denis.
  • Ó Murchú, Labhrás.
Tellers: Tá, Senators Norris and O'Toole; Níl, Senators T.Fitzgerald and Gibbons.
Amendment declared lost.

I move amendment No. 27:

In page 35, line 26, to delete "reasonably necessary" and substitute "essential".

I second the amendment.

Question proposed: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 17; Níl, 8.

  • Cassidy, Donie.
  • Chambers, Frank.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Liam.
  • Fitzgerald, Tom.
  • Gibbons, Jim.
  • Glynn, Camillus.
  • Kett, Tony.
  • Kiely, Rory.
  • Lanigan, Mick.
  • Leonard, Ann.
  • Mooney, Paschal.
  • Moylan, Pat.
  • O'Brien, Francis.
  • O'Donovan, Denis.
  • Ó Murchú, Labhrás.

Níl

  • Connor, John.
  • Cosgrave, Liam.
  • Costello, Joe.
  • Doyle, Avril.
  • Henry, Mary.
  • Norris, David.
  • O'Meara, Kathleen.
  • O'Toole, Joe.
Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators Norris and O'Toole.
Question declared carried.
Amendment declared lost.
Amendment No. 28 not moved.

On a point of order, amendment No. 28 was moved by Senator Brendan Ryan.

The amendment was discussed with amendment No. 26.

Government amendment No. 29:
In page 40, line 15, to delete "and 1958" and substitute "to 1996".
Amendment agreed to.

An Leas-Chathaoirleach

Amendment No. 30 is in the name of Senator O'Meara and has also been tabled by the Government.

I move amendment No. 30:

In page 40, line 23, to delete "and 1958" and substitute "to 1996".

Amendment agreed to.

An Leas-Chathaoirleach

Amendment No. 31 is in the name of Senator O'Meara and has also been tabled by the Government.

I move amendment No. 31:

In page 44, line 16, after "oath" to insert "or affirmation".

Amendment agreed to.

An Leas-Chathaoirleach

Amendments Nos. 38 and 39 are related to amendment No. 32 and all may be taken together. Is that agreed? Agreed.

Government amendment No. 32:
In page 46, after line 47, to insert the following:
"(3) The jurisdiction conferred on the Circuit Court by this section shall be exercised by the judge for the time being assigned to the circuit where the person on whom the non-discrimination notice was served ordinarily resides or carries on any profession, business or occupation.".
Amendment agreed to.
Government amendment No. 33:
In page 49, line 4, to delete "authority" and substitute "Authority".
Amendment agreed to.
Government amendment No. 34:
In page 51, line 24, to delete "and 1958" and substitute "to 1996".
Amendment agreed to.

An Leas-Chathaoirleach

Amendment No. 36 is related to amendment No. 35 and they may be taken together. Is that agreed? Agreed.

I move amendment No. 35:

In page 52, line 19, after "under" to insert "or otherwise complied with".

These are drafting amendments on which I would like the Minister's view. I thank the Minister for taking on board suggestions made on Committee Stage. Of the 185 amendments I tabled on Committee Stage 13 have been accepted.

I second the amendment.

Amendment No. 35 arises from the Committee Stage. The Minister undertook to examine this technical amendment and to revert to the issue on Report Stage. The proposed insertion has been examined and our advice is that the words "benefit under an equality clause" adequately cover any entitlement accruing to an employee as a result of sections 21 and 30 of the Bill.

On amendment No. 36 the policy in relation to this provision is to allow the Minister discretion in the making of regulations under the section. Since acceptance of the amendment would alter the policy I am unable to accept it.

Amendment, by leave, withdrawn.
Amendment No. 36 not moved.

I move amendment No. 37:

In page 60, lines 31 and 32, to delete "and section 56 of the Industrial Relations Act, 1990 (summoning of witnesses etc.).".

On Second and Committee Stages I expressed the view that, in the light of the Supreme Court ruling, references to section 56 of the Industrial Relations Act, 1990, were unconstitutional. I thought the Minister might take that point on board. On Committee Stage he suggested that there was no difficulty, but I am advised that there is a continuing difficulty in this regard. This amendment seeks to delete the reference to what I am advised is an unconstitutional section.

I second the amendment. Senator O'Meara tabled this amendment on Committee Stage because it was her view that section 56 of the Industrial Relations Act, 1990, was not constitutional. She based this view on the fact that the Supreme Court had found that section 63 (3) of the Employment Equality Bill, 1996, was unconstitutional. The Minister outlined on Committee Stage the ways in which section 56 of the Industrial Relations Act, 1990, differs from the unconstitutional provision referred to by Senator O'Meara and the reason that section is constitutional.

Section 63 (3) of the Employment Equality Bill, 1996, was found to be unconstitutional in the Supreme Court judgment of 15 May 1997. That subsection provided that the Director for Equality Investigations could certify the circumstances in which the offence of obstructing or impeding the investigation and/or failing to comply with the requirement of a specified person are alleged to have occurred. This was a wide ranging provision. The range of factors which might have been included in this certificate was very wide. The facts themselves were likely, due to their nature, to allow inferences to be drawn from them to give rise to sharp conflicts of evidence.

In the judgment the Supreme Court stated on several occasions that there were scientific, technical or other matters capable of or amenable to prima facie proof by certification provided the certification process was reasonable and justifiable and there was a proportionate limitation of the normal requirements of word of mouth evidence. The provisions of section 56 of the Industrial Relations Act, 1990, are just such a case. Consequently, I do not propose to accept the amendment.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Amendment No. 38 is in the name of Senator O'Meara and has also been tabled by the Government.

I move amendment No. 38:

In page 67, line 40, to delete "person affected" and substitute "respondent".

Amendment agreed to.
Government amendment No. 39:
In page 71, line 7, to delete "person concerned" and substitute "respondent".
Amendment agreed to.

I move amendment No. 40:

In page 76, line 42, after "case" to insert "relating to employment as a member of the Defence Forces".

This amendment was moved on Committee Stage. It is designed to increase the level of protection in the Bill to members of the FCA and to give redress in such a case. On Committee Stage the Minister indicated that he would take up the matter with the Minister for Defence, a constituency colleague of mine. Perhaps he had a chance to do so this morning as he was opening an extension to a Garda station in Thurles, an event I missed due to my legislative duties.

The Leader would have paired the Senator.

That would have made life too easy for Senators. It has been a useful experience to table 185 amendments. Did the Minister raise the matter with the Minister for Defence?

I second the amendment.

The matter was raised by Senator O'Meara on Committee Stage and the Minister indicated that he would consult with the Minister for Defence. He has done so and he hopes to have a positive resolution of the matter. He is still in consultation and he will be in touch directly with the Senator on the outcome in due course.

Amendment, by leave, withdrawn.
Bill reported with amendment, received for final consideration and passed.

An Leas-Chathaoirleach

When is it proposed to sit again?

At 12 noon next Thursday.