I am pleased to bring before the Seanad this important measure which is a key element of the Government's equality agenda.
The Equal Status Bill will, for the first time, provide protection against discrimination outside the field of employment. It deals with discrimination on the grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community and gives those who are discriminated against a statutory means of redress. It has a broad-ranging scope covering provision of goods and services, disposal of premises and accommodation, education, and registered clubs. The Bill applies to goods and services which are available to the public, whether on payment or not, and irrespective of whether provided by the public or private sector. This measure complements the Employment Equality Act, 1998, which prohibits discrimination on similar grounds in the workplace.
Senators will no doubt recall the fate of the previous Equal Status Bill. That Bill, which was initiated in 1997 by the then Minister for Equality and Law Reform, Mr. Mervyn Taylor, passed all Stages in both Houses of the Oireachtas. The entire Bill was then referred by the President to the Supreme Court under Article 26 of the Constitution. The Employment Equality Bill of 1996 had already been referred to the Supreme Court and on 15 May 1997 the court found that Bill to be unconstitutional in three respects. As two technical provisions found unconstitutional in the Employment Equality Bill were also contained in the Equal Status Bill, it then became inevitable that the Supreme Court would also find the Equal Status Bill unconstitutional. The court gave its judgment on the Equal Status Bill on 19 June 1997. As expected, the court held those two aspects of the Bill – vicarious liability of employers for criminal acts of employees and use of a certificate in a criminal trial – to be repugnant to the Constitution. The Supreme Court declined to consider the Bill further.
Preparation of the revised Equal Status Bill was necessarily a more complicated matter than was the development of the revised employment equality legislation. The Employment Equality Bill had been thoroughly examined by the Supreme Court, particularly as regards a range of key and controversial provisions, and was found constitutionally sound except for three aspects. It was possible, therefore, to revise that Bill relatively quickly and to bring forward a redrafted measure in the latter part of 1997, resulting in the enactment of the Employment Equality Act, 1998, in June 1998. In the case of the Equal Status Bill, however, the Supreme Court did not examine the Bill as a whole and did not give its imprimatur to any aspect of it. It was, therefore, necessary to obtain extensive legal advice before developing the revised Equal Status Bill. As this is a wide-ranging and complex measure, it was necessary to proceed thoroughly and carefully to ensure that the revised measure would pass constitutional muster.
Following on the Employment Equality Act, 1998, which is now fully in operation, this Bill is a further step forward in the area of equality legislation. The Bill is based on the principle that everyone has an equal right to participate in our society. People should not be denied access to services, facilities or amenities just because of their skin colour, disability or membership of the Traveller community. Everyone, male or female, white or black, old or young, with or without disability should be seen as of equal worth and entitlement. Each person should be treated on his or her own merits and not on the basis of a prejudice or stereotype.
At present there is an absence of legal redress for a woman who cannot become a member of a local golf club simply because she is a woman, the person who is refused entry to a pub because he or she uses a wheelchair or the black person who is not given a flat simply because of his or her skin colour. Such people want more than mere sympathy, they want the protection of the law. Groups representing persons who have experienced discrimination have been pressing successive Governments for legislation along these lines for a considerable time and are anxious to see this measure in place.
Until this legislation is in place, Ireland cannot ratify the UN Convention on the Elimination of All Forms of Racial Discrimination. This convention dates from the 1960s and Ireland signed it in 1968. In the intervening years, the convention has been ratified by more than 150 countries, including all our EU partners. The UN monitoring bodies have on a number of occasions called for action by Ireland to ratify the convention and I can confirm that we will take steps to do so after the passage of this legislation. Similarly, the enactment of the Equal Status Bill is necessary to enable us to lift a reservation on the UN Convention on the Elimination of All Forms of Discrimination against Women.
Senators will agree that there is across the board acceptance of the principle of equal status legislation and, thus, the enactment of an Equal Status Bill has been a fundamental element of the programmes of successive parties in Government. Equal status legislation is among the commitments in the Good Friday Agreement. Equal status legislation has been endorsed by the social partners who participated in the Programme for Competitiveness and Work, Partnership 2000 and the recently agreed Programme for Prosperity and Fairness. Recommendations relating to anti-discrimination legislation were set forth in the reports of the Second Commission on the Status of Women, the task force on the Travelling community and the Commission on the Status of People with Disabilities.
At EU level the fight against discrimination has moved beyond the traditional field of gender discrimination in the workplace. The Amsterdam Treaty, which came into force last May, empowers the Union to take action on discrimination in a way not conceived of when the treaties founding the Union were agreed. Article 13 of that treaty gives the Union a basis to combat discrimination, both in employment and non-workplace areas, on grounds of sex, race or ethnic origin, religion, disability, age and sexual orientation. In November 1999 the Commission released details of its package of measures under Article 13, consisting of two draft anti-discrimination directives and an action programme. This package is being discussed by the member states.
The essential thrust of the current Bill is the same as that of the 1997 Bill. Changes have been made to rectify faults identified by the Supreme Court consequential on the court's finding on the Employment Equality Bill, in response to faults identified in legal advice, to correct technical points or remove anomalies arising from representations and comments on the Bill since it was published last April and in response to points made when the measure was debated in the other House.
I will now set out the main changes. The 1997 Bill required service providers to make reasonable accommodation, including the provision of special treatment or facilities, for people with disabilities unless such reasonable accommodation would give rise to undue difficulty. As Senators will be aware, the Supreme Court found the comparable requirement in the Employment Equality Bill, 1996, to be unconstitutional. The implications of this judgment were carefully examined before the revised Equal Status Bill was developed. The redrafted version follows the approach taken in the Employment Equality Act, 1998, that is, the obligation to make reasonable accommodation is subject to a nominal cost threshold. This approach has been taken following extensive legal advice on the matter. As required by the Supreme Court judgment, vicarious liability of employers for acts of employees now applies only in respect of civil proceedings. The subsection which allowed for the use of a certificate as evidence of an offence has been deleted.
The 1997 Bill provided for the establishment of the Equality Authority with a remit in both employment equality and equal status matters. As the Employment Equality Act, 1998, now includes provision for the establishment of the authority and for its functions in the employment equality area, the Bill simply extends the functions of the authority to equal status matters. There are a number of changes in the education area, including the deletion of the provision which allowed schools catering for persons of a particular nationality or national origin to restrict access in certain circumstances. This provision presented constitutional difficulties and, on further consideration, was deemed to be unnecessary. Provisions dealing with discrimination by firms, including partnerships, against members or partners have been deleted. These provisions were anomalousvis-à-vis the provisions of the Employment Equality Act, 1998, and were not required by the EU directive on self-employed activity.
Registered clubs which are found to be discriminatory will forfeit their certificate of registration but, following legal advice, this is now the sole sanction against such clubs. Procedures for referral of claims have been modified to give greater flexibility in exceptional circumstances. Provision is now made for the Equality Authority to carry out equality reviews and action plans in non-employment matters. Senators will doubtless observe other changes in the 1999 Bill as against the 1997 Bill, but I do not propose to go into details of these at this stage. I will now deal with the specific provisions of the Bill.
The Bill is divided into five parts as follows: Part I contains definitions and sets out what is meant by discrimination, Part II deals with discrimination in particular areas, Part III provides means of redress and compensation for persons who may have suffered discrimination, Part IV, together with the Schedule, extends the functions of the Equality Authority to equal status matters, and Part V contains general and technical provisions.
Part I defines terms used in the Bill. Senators may wish to note the broad definition of disability in section 2. There is also a comprehensive definition of "services", which includes services and facilities of any nature including access to and use of any place, banking or insurance services, facilities for entertainment, recreation or refreshment, cultural activities, transport or travel and professional or trade services. The definition of "Traveller community", which is now included is modelled on the Race Relations Order (Northern Ireland), 1996, and such a definition was sought by Traveller interests.
Section 3 sets out what is meant by discrimination. Discrimination occurs where, on discriminatory grounds that existed, exist, are believed to exist or are considered likely to come into existence, a person is treated less favourably than another person is, has been, or would be treated. It also occurs where a person is treated less favourably because of his or her association with someone in one of the protected categories. A further form of discrimination occurs where a requirement to comply with a condition has a disproportionately adverse effect on a particular category of person and this requirement cannot be justified as being reasonable in all the circumstances of the case. This form of discrimination is commonly known as indirect discrimination, although the term does not appear in the Bill. The discriminatory grounds are gender, marital status, family status, sexual orientation, religion, age, disability, race, including colour, nationality or national or ethnic origin, and membership of the Traveller community. Victimisation of a person because of his or her involvement in proceedings under the Bill is also treated as a discriminatory ground.
Section 4 contains provisions related to persons with disabilities. I have already referred to the Supreme Court's findings that the reasonable accommodation provisions of the Employment Equality Bill were unconstitutional and the consequent insertion in the Employment Equality Act, 1998, of a nominal cost threshold for reasonable accommodation. This approach has been followed in the Bill.
Part II deals with discrimination in particular areas. Section 5 prohibits discrimination in the provision of goods and services. There are a number of exceptions for differences of treatment in certain circumstances in particular areas, such as insurance, sporting events and entertainment. Among these exclusions are reasonable differences of treatment in the area of insurance and finance which are based on actuarial or similar data. Examples of this would be the different treatment of persons under 25 in motor insurance and the different treatment of persons on age grounds in life assurance. Differences of treatment of persons on the grounds of gender, age, disability, nationality or national origin are permissible in relation to sporting facilities and events. Thus, for example, the Bill recognises and allows for different events, such as women's or men's football teams, under 21 football teams or games for people with a disability. As these examples show, the various exceptions reflect what most people would regard as acceptable and necessary differences of treatment.
Discrimination in disposing of premises and provision of accommodation is also prohibited, subject again to a number of exclusions. Among the exemptions are disposals by will or gift, small premises where the accommodation provider continues to live on the premises, accommodation intended for use by persons of one gender and refuges and nursing homes.
Educational establishments may not discriminate against students in matters such as admission or access to courses. There are a number of exemptions in the education area. For example, single gender schools are permissible. Denominational schools may refuse to admit non-religionists in certain circumstances. Educational establishments may make reasonably necessary distinctions based on gender, age or disability in relation to sport. Differences of treatment are also warranted if the admission of a student with a disability would make impossible or be seriously detrimental to the education of other students.
Sections 8 to 10 deal with discrimination by registered clubs. The approach taken in relation to such clubs differs from that taken in other areas. The Bill does not prohibit discrimination by clubs against members or potential members. Instead, it seeks to discourage such discrimination by allowing a complainant to apply for a determination from the District Court that a registered club, that is, one which can sell intoxicating liquor, is a discriminating club. If the club is determined by the District Court to be a discriminating club, it will not be entitled to renew its certificate of registration until it has rectified the situation.
A number of exemptions are provided in section 10 in relation to registered clubs. Clubs are not regarded as discriminating just because they cater for persons of a particular religion, age, nationality or ethnic origin. A club may provide separate but equivalent facilities for particular age groups or different sexes in certain circumstances. Relevant and reasonably necessary differences of treatment in relation to sporting facilities or events based on gender, age, disability, nationality or national origin are permissible. Certain positive action measures designed to promote greater equality are also exempted.
In section 11 sexual harassment or harassment based on any of the discriminatory grounds is prohibited in the areas covered by the Bill. A person in authority in an educational establishment, a person providing services or accommodation or disposing of goods or premises may not sexually harass or harass a student, customer etc. Furthermore, a person who is responsible for the operation of an educational establishment or a place at which goods, services or accommodation facilities are offered to the public may not allow a student, customer etc. to suffer sexual harassment or harassment there. It will, however, be a defence for the person responsible to show that he or she took reasonably practicable steps to prevent such harassment. Section 12 prohibits any form of advertising which indicates an intention to discriminate, to sexually harass or to harass.
I have already referred to some of the specific exemptions which apply to particular areas. There are also some general exemptions in sections 14 and 16. For example, actions which are required to be done by or under statute, court order, EU law or international obligations are exempt, as are bona fide positive action measures. A reasonable preferential charge for persons together with their children, married couples, persons in a specific age group or persons with a disability is permissible. Different treatment is also acceptable where it arises in the exercise of clinical judgment or because the person concerned is incapable of entering an enforceable contract or of giving informed consent.
Section 15 deals with safeguards. It makes it clear that a service provider or similar person is not required to serve a customer if the service provider has reasonable grounds, other than discriminatory grounds, for the belief that provision of the service would create a substantial risk of criminal or disorderly conduct or behaviour or cause damage to property. It also provides that action taken in good faith for the sole purpose of complying with the Licensing Acts is not discrimination.
Sections 17 to 19 make special provision for the needs of persons with a disability in the area of transport accessibility and convenience in using public streets and pavements. They provide for regulations requiring that buses and trains, and bus and train stations, be readily accessible to persons with disabilities. In addition, road authorities must provide kerb ramps or similar features when constructing or altering public paths.
I now turn to the enforcement provisions under Part III of the Bill. Senators will be aware that both the Equality Authority and the Office of the Director of Equality Investigations stand established under the provisions of the Employment Equality Act, 1998, and that both entities commenced operations in relation to employment matters in October last. The functions of the authority and the director will be broadened to include equal status matters once the present measure is brought into operation.
Claims of discrimination or harassment may be referred to the Director of Equality Investigations who will provide a simple, inexpensive and speedy means of redress for victims of discrimination. As I have said, the decision on whether a club is a discriminating club is a matter for the District Court and I would emphasise that the Director of Equality Investigations will have no function in the matter of discriminating clubs.
The procedures outlined in sections 20 to 38 which deal with cases referred to the director correspond, subject to certain modifications and exceptions, to those applicable to cases referred to the director under the Employment Equality Act, 1998. I will mention some features of the redress procedures. A claim referred to the director under this Bill must be preceded by an initial notification to the respondent within two months of the alleged discrimination or of its most recent occurrence. Should exceptional circumstances have prevented the complainant from doing so within two months the director may, if he or she is satisfied that it is just and equitable to do so, give an extension to four months for the notification to be given to the respondent. The giving of a notification is intended to put the respondent on notice, afford him or her the opportunity to take remedial action and, if the respondent wishes, to give the respondent's side of the story. There is a six month limit for referral of claims to the director, which may be extended in exceptional circumstances to 12 months.
The director may at any time dismiss a claim which is made in bad faith or is trivial, vexatious or frivolous. The director may investigate a claim or, alternatively, seek to resolve the matter by mediation. Having investigated a claim, the director may award compensation and/or require that a particular course of action be taken. Compen sation is limited to the maximum that could be awarded in a civil case in contract, currently £5,000.
The director will have strong investigative powers to enter premises, to obtain relevant information, through interview or otherwise, and to ensure the imposition of sanctions in the event of failure or refusal by persons to co-operate with an investigation. Decisions of the director may be appealed to the Circuit Court within 42 days.
The Equality Authority will have the power under section 23 to refer certain cases to the director. Such cases could involve discrimination against a group of persons or a situation where the person concerned is not in a position to bring a case themselves. The authority may also refer cases involving prohibited advertising and non-compliance with the regulations on transport accessibility. It will also have the power to seek injunctions.
Part IV together with the Schedule, extends the functions of the Equality Authority, as set out in the Employment Equality Act, 1998, to include equal status matters. Part V deals with various general matters, including expenses, regulations, vicarious liability, offences and commencement.
This legislation will have a profound impact on Irish society. Its provisions, together with the Employment Equality Act, 1998, will put in place a comprehensive and advanced anti-discrimination code. I look forward to a constructive and wide-ranging debate on this important legislation.