We resume the debate on section 8 at amendment No. 42. Amendment No. 46 is related to amendment No. 42 and they may be taken together by agreement.
Equal Status Bill, 1999: Committee Stage (Resumed).
I thought we were on amendment No. 48. Am I correct in saying this is about the suspension for 30 days? I thought we were discussing where clubs do not comply that they would be—
We finished that yesterday.
The Minister was clarifying the issue contained in the Government amendment whereby for a first offence the suspension would be for 30 days in order to allow the particular club or body to get its act together. Further to that there would be a longer suspension. That is my recollection according to my notes.
I have no problem in clarifying it again, although from the record of the House the Senator finished on it.
Having had an opportunity to think about it overnight the Minister's approach is the correct one. In that context we support her amendment.
We are on amendment No. 42.
I move amendment No. 42:
In page 14, subsection (2)(b), between lines 36 and 37, to insert the following new subparagraph:
"(i)by refusing to permit certain categories of members to vote at general meetings and stand for office in the management committee;".
This relates to a similar issue which has arisen in the Irish Ladies' Golf Union. It is similar to other amendments we have tabled to meet the issues raised by the Irish Ladies' Golf Union in the context of the administration of this legislation.
I can understand the concern to ensure that associate, that is women, members of golf clubs can have a greater say in the running of such clubs, but I cannot accept these amendments. Amendment No. 42 would appear to treat a club as discriminatory if it did not give voting rights to all members of registered clubs, irrespective of the nature or duration of their membership. My understanding is that there are diverse membership categories. The implications of giving voting rights to every type of membership are unclear and it may not be appropriate to give voting rights to some categories of members, for example, temporary members or affiliates. Sections 8, 9 and 10 are not a vehicle for making substantial changes to the Registration of Clubs Act, 1904, the consequences of which are unknown.
Amendment No. 46 would deem certain actions by clubs to be in contravention of the Registration of Clubs Act, 1904. Section 4(a) of the 1904 Act requires that a club, in order to be eligible for registration, must make certain provisions for the management of the club by the committee or governing body and section 4(d) provides for the election of members. It is possible to object in the District Court to the grant or renewal of a certificate of registration on the ground that the club's rules are not in conformity with the 1904 Act. I am not aware that an objection has ever been made on this basis, but it is statutorily provided for. I do not see this provision as being appropriate to the Bill. I cannot, therefore, accept these amendments.
I move amendment No. 43:
In page 14, subsection (2)(b), between lines 39 and 40, to insert the following new paragraph:
"(iii)refusing or failing to do all that is reasonable to prevent sexual harassment from occurring in the club;".
I am simply asking that this amendment be inserted in section 8. Section 8 defines a discriminating club in a general way. Subsection (2)(b) gives some of the particulars as follows:
(i)refusing to admit a person to membership;
(ii)providing different terms and conditions of membership for members or applicants for membership;
(iii)terminating the membership of a person or subjecting a member to any other sanction; or
(iv)refusing or failing, in contravention ofsection 4(1), to do all that is reasonable to accommodate the needs of a member, or an applicant for membership, with a disability.
I seek the insertion of the following new paragraph:
(iii)refusing or failing to do all that is reasonable to prevent sexual harassment from occurring in the club.
Sexual harassment is mentioned in the Bill. This is an appropriate point at which to insert this amendment. It is important that at all crucial stages in the Bill the point is made that sexual harassment is a serious discrimination in that advantage is taken of somebody over whom people consider they have authority. I ask the Minister to accept the amendment.
The core objective of the provisions dealing with registered clubs is to address the discrimination practised by such clubs against members or prospective members, most conspicuously on the gender ground. This is a complicated area and I do not intend to increase the difficulty by bringing sexual and other harassment in registered clubs into this Bill.
Issues around sexual harassment could be problematic in the context of a club, particularly as such sexual harassment could occur, not only between persons in authority and members or prospective members of the club, but also between ordinary club members. It would be a draconian approach were an act of sexual harassment in the club bar to result in the forfeiture of that club's certificate of registration.
The purpose of the District Court hearing is quite specific, namely, to determine if the club has a rule, practice or policy, which discriminates against a member or an applicant for membership, or that a person involved in the club's management discriminates against a member or an applicant for membership in relation to the club's affairs. With a view to keeping the focus of the District Court hearing on these matters, I am not willing to have the section enlarged in the way put forward by the Senator and I do not, therefore, intend to include provisions on sexual harassment in registered clubs in the legislation.
The inclusion of the amendment might render the Bill – in relation to the provisions dealing with registered clubs – susceptible to legal challenge. I am conscious that registered clubs are members' clubs and that in addressing inequalities in this sphere, we have to respect this status and ensure that the measures pass constitutional muster. In the light of what I have said, I am unable to accept this amendment.
I will not press the issue. It is amazing the Minister should say there is a legal difficulty in inserting this amendment given that the section contains certain rules. All I am seeking is the insertion of the following new paragraph:
(iii)refusing or failing to do all that is reasonable to prevent sexual harassment from occurring in the club.
Clubs should be required by law to have that as a condition of their operation or a condition of their membership in the same way as it is right and proper that they should have a rule that they cannot discriminate against persons with a disability. If there are legal difficulties with what I propose, equally there could be legal difficulties in regard to being non-discriminatory towards persons with a disability. People may cite the outcome of the Supreme Court decision in relation to the Employment Equality Act. The Minister of State should think a little more about this.
It is important to bear in mind that what we are dealing with here is the abuse by registered clubs of the drink licensing laws in terms of discrimination in the clubs. Issues around sexual harassment could be problematic in the context of a club. While this is a serious issue, this is not the context in which we should deal with it. An entire club could have its licence endorsed or removed because of the activity of two members on the club premises. This section deals with the matters which go before the District Court with regard to a club's licence to sell alcohol and it is not an appropriate place to deal with this question.
I move amendment No. 44:
In page 14, subsection (2)(b), between lines 39 and 40, to insert the following new paragraph:
"(iii)refusing or failing to do all that is reasonable to prevent indirect discrimination from occurring in the club;".
It is very easy to identify direct discrimination but indirect discrimination can be quite subtle. Because of the subtle way it is sometimes proceeded with it can be difficult to identify such discrimination or to make a case. Nevertheless, the legislation should make it clear that indirect discrimination is just as illegal as direct discrimination.
The Minister has gone some way towards defining direct discrimination in subparagraphs (i), (ii), (iii), and (iv) of this subsection. We have already asked the Minister to be more generous with regard to sexual harassment. I now ask her to be more generous in dealing with this amendment.
An amendment was made in the other House which meets the concerns of the Senators. I refer to section 4(6) which makes it clear that the concept of reasonable accommodation for the needs of people with a disability will extend to all the areas covered by the Bill, including the register of clubs. Because of the cross reference to section 4(6) in section 3(1)(c)(ii), the concept of indirect discrimination applies also to all these areas. The Senator's concerns are covered by the legislation.
I move amendment No. 45:
In page 14, subsection (2)(b)(iv), line 42, to delete “refusing or failing, in contravention of section 4(1),” and substitute “subject to section 4, refusing or failing”.
This is a technical drafting amendment.
I am advised by the parliamentary draftsman that this amendment is not appropriate.
I move amendment No. 47:
In page 15, subsection (5), line 7, after "club" to insert "at its registered or head office".
This provides greater certainty of the address of a club against which a complaint has been made.
The Registration of Clubs Act, 1904 employs the term "a club premises" and I understand that the actual certificate of registration also uses this term. The term "head office" is not used in relation to the court application process under the 1904 Act. Given the type of club at which this provision is targeted, I consider that an applicant will have no difficulty in serving the application specified in subsection (5) on the club at its club premises. Moreover, once a case of this type comes before the District Court the alleged discriminating club might attempt to challenge the validity of the proceedings on mere technical grounds by alleging that the copy of the application had been sent to the wrong address. I hesitate to allow scope for any possibility of such procedural irregularity. The section as it stands is clear and I do not propose to accept the Senator's amendment.
Amendments No. 50 and 53 are related and may be discussed together.
I move amendment No. 50:
In page 15, between lines 43 and 44, to insert the following new subsection:
"(11)A discriminating club shall not be entitled to grants from public funds or use of public facilities.".
This measure was provided for in the 1997 Bill and it is strange that it is not provided for here. A sanction must be available for discriminating clubs and a basic sanction is the declaration that such a club will not qualify for public funds or facilities.
The 1997 Bill contained additional measures directed at discriminating clubs. However, on foot of legal advice the sole measure directed against such discriminating clubs is now the removal of the certificate of registration. This certificate, which is a matter of statute, is peculiar to a registered club and I am advised that it is legitimate to make this conditional on clubs not discriminating. We could be constitutionally vulnerable if other measures were directed at registered clubs which did not apply to private clubs. I consider the loss of the certificate of registration alone to be an effective measure. Most public reaction to the register of clubs provision in the 1997 Bill focused on the loss of the right to serve drink to members.
I support Senator Connor's amendment. The Minister has said that public reaction to the 1997 legislation was that the loss of the licence would be sufficient penalty. However, the vast majority of the public would believe that a club in contravention of the law, particularly as it relates to discrimination, should not be in receipt of funds, particularly national lottery funds. A similar amendment has also been tabled and Senator Connor has made a valid point.
Would it not be scandalous if a club which has been found to be practising discrimination and has lost its drinks licence received national lottery or other public funds and continued to receive those funds while its licence to sell alcoholic liquor was revoked? Sport and recreational clubs throughout the country have received funding from the national lottery, and rightly so. If one of those clubs was found to be seriously in breach of this law and continued to carry on a development funded by the national lottery while under investigation for discrimination, there would be very little public support for the continuance of payment to it.
What we are trying to achieve is administratively but not legally possible. The question is how to address this issue in an administrative fashion so as to ensure that what Senator Connor is concerned about does not happen. The matter has been looked at with a view to enshrining this principle in law to ensure all clubs are treated equally. The issue of private clubs arises in this respect.
The Department of Tourism, Sport and Recreation administers national lottery funded schemes for sports. Applicants are required to submit rules and procedures as evidence of non-discrimination on grounds of sex, religion, ethnic origin etc. It is also a requirement that the facilities and equipment be accessible to people with disabilities. The bulk of national lottery funded expenditure goes to community and voluntary groups, many of which are active in promoting equality and non-discrimination, for example, youth clubs, women's groups, Travellers' groups and groups dealing with child care, the care of the elderly and the disadvantaged. Conditions applying to individual schemes are decided by the Departments administering the particular scheme.
Senators want us to do all we can to ensure discriminating clubs do not receive grants from the Government. I will ask my officials to draft correspondence to be issued to all Departments on the passage of the Bill drawing to their atten tion the concerns of Members with regard to the administration of public funds.
The Minister of State said that this is the legal advice she has received and that we have to accept it. What she is saying, in effect, is that a club can receive national lottery funds on satisfying the Department of Tourism, Sport and Recreation that it is not a discriminating club by virtue of the fact that it operates an open-door policy. That does not mean however that a year from now refugees or asylum seekers, for example, will not be refused access to the club to avail of its facilities for the purposes of holding meetings or engaging in social and recreational activities. If a case is taken and the club is found by the Director of Equality Investigations to be actively engaged in discrimination there is nothing the Government will be able to do under the Bill to prevent the club from continuing to benefit from national lottery funds. In effect, public funds will continue to be available to a club found to be in contravention of the Bill.
I support everything Senator O'Meara said. I appreciate the Minister of State is trying to come to an administrative arrangement whereby the Department of Tourism, Sport and Recreation which has responsibility for the Operational Programme for Tourism, under which many facilities have been grant-aided, will have to be satisfied that a club is observing the rules laid down. As Senator O'Meara said, a substantial grant may be sanctioned out of public funds for a club for major construction works before it is found by the Director of Equality Investigations and perhaps the courts to be actively engaging in discrimination in serious contravention of the Bill in the use of its facilities by asylum seekers and refugees. It appears that in such circumstances the Minister of State will be powerless to stop the handover of substantial public funds to the club concerned.
It should be made clear in whatever administrative arrangement is made that if a club is found to be in contravention of the Bill having been promised or while in receipt of public funds for development those funds will be either withheld or withdrawn until it is seen to put its house in order. That is the bare minimum we can accept.
There is protection in the way grants are paid. If a club is awarded a grant of £100,000 and it is discovered following the payment of £20,000 in respect of works done that it is a discriminating club contact should be made with the Department providing the grant, which in many instances will be the Department of Tourism, Sport and Recreation, to draw its attention to the fact that the club is not complying with the conditions laid down and the grant may be withdrawn or the terms altered.
Is the Minister of State saying that the club concerned will make the Department aware that it is in contravention of the law?
No, the person being discriminated against will make contact with the Department.
It will be up to him or her to make the Department aware that the club concerned is out of order.
Under the Bill it will be up to the individual being discriminated against to report the matter.
It would be much easier to insert the amendment to ensure certainty and protect public funds. I do not accept the advice the Minister of State has received. Her heart is in the right place on this issue. Perhaps she will return to it on Report Stage.
I cannot give any such undertaking. While I agree wholeheartedly with what Senators are trying to achieve, I understand fully the legal difficulties and constitutional issues that would arise. As I said several times yesterday, I am not taking any risks with the Bill. It would be foolhardy to go down that road in terms of the constitutional rights of registered and private clubs and because it would be risky to do so, I give no undertaking to revisit the issue on Report Stage.
It would be risky according to the Attorney General who has been guilty of giving faulty advice in the past. The Minister of State should therefore err on our side.
I have to defend the Attorney General. It has been risky since the Supreme Court delivered its judgment on the 1997 legislation three years ago. There has been a number of Attorneys General since then.
With respect, not every element is risky. The Supreme Court judgment is a comfort blanket used in tight corners. This matter has the potential to become a major issue of public concern. The first comment that will be made if a club is found to be discriminating under the Bill is, "They are getting public funds and nobody is doing anything about it." It will be up to the person being discriminated against to alert the Minister of State. This may sound over-the-top but many people would not know how to go about doing this. Will it be part of the role of the Director of Equality Investigations to inform the appropriate Departments that a club has been found to be discriminating and that it is his or her recommendation that public funds should no longer be available to it?
What is the justification for the amendment?
This amendment, which has been included on the advice of the Attorney General, is intended to protect rights of freedom of association. The Attorney General has advised that the existing exemption at section 9(1)(a) does not sufficiently protect such rights. For example, the Freemasons is not a religious body and, therefore, cannot avail of the exemption at section 9(1)(a). It is a body which was set up to encourage interpersonal bonds of a fraternal nature and is thus par excellence a body of individuals who are exercising their constitutional right of freedom of association. Our advice is that it would be extremely difficult to justify in law a refusal to renew the Freemasons' certificate of registration which is based, not on any drink related ground, but on a refusal to admit women. The same logic extends to many other groups – lesbian and gay organisations, the ICA, Traveller groups – which might well wish to exclude members of a particular category. There is no rational basis on which to suggest that such groups do not enjoy the same right as others to drink together in the privacy of their own club.
The amendment extends the exemption to protect clubs whose principal purpose is to cater only for a person of a particular gender, marital status, family status, sexual orientation, religious belief or no belief, age, disability, nationality or ethnic or national origin or members of the Traveller community. It does not include race or colour based clubs. Thus a club catering for the needs of widows, Travellers, Freemasons, Italians, etc. will not risk forfeiture of its certificate of registration if it refuses to admit other persons.
I stress that these changes have been included on the advice of the Attorney General and have been carefully formulated to pass constitutional muster.
This amendment, like others, is critical to the fundamental principles behind the legislation and, therefore, Committee and Report Stages should not be rushed. Time should be spent going through the amendments in greater detail as we might want to take advice on them
I accept what the Minister said and I will not oppose the amendment. However, I do not agree that when a Bill comes to the Seanad from the Dáil Report Stage should be taken immediately after Committee Stage. That is not a good approach to legislation.
This amendment is being introduced in response to various concerns expressed by women golfers that the Equal Status Bill, although intended to promote greater equality, might not achieve this aim or could even be disadvantageous to women. The new paragraph (c) will make it clear that a club can continue to have more than one category of membership, provided that access to such categories is not determined on the basis of a discriminatory ground. It will thus be permissible, for example, for a club to continue to have full members and associate members, as long as men and women can access both categories without discrimination. This was implicit in the Bill before the present amendment but there had been some misconceptions that the Bill would require the abolition of the associate membership category.
I have also included a new paragraph (d), which extends the concept of positive action to include concessionary arrangements introduced by a club to mitigate the effects of past gender based discrimination. Thus, for example, a club will not be regarded as discriminatory if it makes concessionary arrangements for former associate members who were excluded from full membership because of their gender. I would emphasise that the new text permits concessionary arrangements but imposes no obligation on clubs to make such arrangements.
I am aware that women golfers would like us to go further. They have made known to us that they consider it unjust that they could be charged a full levy for joining as full members despite their long association with the club. Careful consideration has been given to formulating an amendment to meet those concerns, but we are advised that it would not be appropriate to go further than we have in addressing the position of women in golf clubs.
I accept the Minister's points. I had discussions with representatives of women golfers and this, undoubtedly, is an issue which has arisen in the context of this legislation. I accept the Minister's bona fides in that she has gone as far as she can on this point.
Can the Minister be more specific on the advice she was given?
There is a view we are straining the concept of discrimination in this matter and to do so would be unwise, particularly given that men would have cause for complaint in that women were clearly being singled out for preferential treatment in the legislation without account being taken of the fact that, for better or worse, they had the benefit of cheaper subscriptions over the years.
The main issue regarding membership is that full and associate memberships should be available equally to men and women. As long as that is done from a certain date, I do not think it reasonable that women should be of the opinion that because they have been members for 20 years they should be treated differently from men, who have also been members for 20 years. From a certain date after the passing of the legislation, everybody should be treated equally. Many men might prefer the cheaper associate membership and many women might prefer the dearer full membership. As long as men and women are entitled to access to both full and associate memberships and pay accordingly, there will not be discrimination.
The principle ensures clubs will not attempt to suggest the legislation will abolish associate membership because it does not. The legislation provides that there is nothing wrong with associate and full memberships as long as they are available to men and women. The issue is not about the category of membership but access to it by both genders.
I move amendment No. 53:
In page 16, between lines 27 and 28, to insert the following new subsection:
"(1)Notwithstanding anything in any other Act, while an order made undersection 8 determining that a club is a discriminating club remains in effect–
(a)no grant or loan of public funds shall be made to or in respect of the club, and
(b)the club shall not be provided with the use of publicly-owned facilities that are intended for recreation.”.
Caffrey, Ernie.Coghlan, Paul.Connor, John.Coogan, Fintan.Costello, Joe.Doyle, Joe.Hayes, Tom.
Henry, Mary.McDonagh, Jarlath.Manning, Maurice.Norris, David.O'Meara, Kathleen.Ross, Shane.
Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cregan, John.Farrell, Willie.
Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Gibbons, Jim.Glynn, Camillus.Keogh, Helen. Kett, Tony.
Senator O'Meara has tabled the same amendment.
I assume this is a technical amendment that has been accepted by the Government.
I move amendment No. 57:
In page 19, subsection (2), line 10, to delete "1997" and substitute "1999".
This is a technical amendment.
I accept this drafting amendment.
I move amendment No. 58:
In page 19, subsection (1), lines 31 to 33, to delete paragraphs (a) and (b) and substitute the following new paragraphs:
"(a)are purchased or leased by an operator of a passenger road service or passenger rail service and are to be used for the purposes of either such service, or
(b)are purchased or leased for use as a taxi or hackney.”.
My amendment seeks to insert into this Bill an obligation on all public service vehicles, such as taxis and hackneys, to provide a service in the same way as public transport is expected to provide one. It is a disgrace that there is no obligation to provide a service for people with a disability here, particularly regarding access to trains and buses. I have no doubt the Minister of State will say there is a Government amendment which deals with this matter.
A public service licence is issued for taxis, hackneys and public service vehicles. This legislation should ensure that these forms of transport are made accessible to people with a disability. It is as simple as that. The arguments for this have been made many times and I will not rehash them. I hope the Minister of State will accept my amendment.
I cannot accept this amendment since the existing regulatory framework in regard to taxis already permits accessibility issues for people with disabilities, as well as quality and service issues, to be addressed. These functions are vested in the relevant local authority which issues the taxi or hackney licence and the matter comes under the broad remit of the Minister for the Environment and Local Government.
Informing me that local authorities issue these licences and that this matter comes under the broad remit of the Minister for the Environment and Local Government is hardly an acceptable answer. That Department and local authorities should be as amenable to this legislation as anyone else.
With regard to the debate about access for people with disabilities to public buildings and transport, taxis and hackneys are part of our public transport system. Since they are licensed as public service vehicles they should, as far as is practicable, be friendly to people with disabilities and allow them access.
Amendments Nos. 59 and 60 are related and may be taken together by agreement.
I want to hear from the Minister of State the rationale behind this amendment.
This amendment comprises a drafting change put forward by the parliamentary draftsman. It is in the same vein as the amendment tabled by Senators O'Meara, Costello and Ryan.
Amendments Nos. 62, 83 and 84 are related and may be taken together by agreement.
I move amendment No. 62:
In page 20, line 26, to delete "within the meaning of" and substitute "as defined by".
These are technical amendments.
I have been advised by the parliamentary draftsman that these changes are not appropriate and, therefore, I do not propose to accept the amendment.
Amendment No. 64 is out of order as it involves a potential charge on the Revenue.
I move amendment No. 65:
In page 21, subsection (2), line 4, after "complainant" to insert "or some other person (including the Authority) on his or her behalf".
This amendment relates to a person making a complaint to the director. It appears that only the person involved can make a complaint of an alleged discriminatory act committed against them. I want to broaden that to include "some other person (including the Authority) on his or her behalf". It should not be controversial or difficult to add that line. If a refugee with a poor knowledge of the language, for example, needs a friend or interested party, not necessarily a professional representative, to make a case on their behalf, their submission to the director should be valid.
The authority has the function of assisting complainants by providing forms, advice, etc. The authority would facilitate persons with disabilities, language or literacy problems or otherwise requiring special help in notifying the respondent. I assure the Senator it will be open to the complainant to seek the assistance and support of the Equality Authority in any language or disability difficulties.
I accept that, but what difficulty has the Minister of State in allowing the complainant to ask another person to make their case or complaint for them?
Section 21(2) makes it clear that the complainant, the person at the heart of the alleged prohibited conduct, must issue the notification to the respondent. It would not be appropriate for a third party to take on this core task. If I am a wheelchair user and I am refused access to the local pub, it is better if I make the complaint than someone else making it for me. We cannot allow people to make complaints on behalf of others. The person who has been discriminated against must be at the centre of the complaint. There is also the issue that a person may not be in a position to make a complaint because of a disability.
Or fear of intimidation.
We cannot allow Mrs. Smith to take a case for Paddy Reilly who could not get into the pub. We must draw a line. It is important that we facilitate people in making their complaint but they must be at the centre of the complaint.
Amendments Nos. 66, 67, 68, 69 and 70 are related and may be discussed together.
I move amendment No. 66:
In page 21, subsection (2)(a), line 5, to delete “2” and substitute “6”.
This amendment proposes to extend the time limit. Section 21(1) states that a "person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director". It is a pity amendment No. 64 was ruled out of order because legal aid is an important issue as many people are unable to pay for professional representation.
We are discussing amendment No. 66, not amendment No. 64.
I accept that. Section 21(2)(a) states: “shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of —”. We want to extend the minimum amount of time allowed from two months to six months. There are reasons the two month period may be too short. There would not be any administrative problems if this was extended to six months.
This entire section was substantially modified on Report Stage in the other House to meet the concerns expressed by Opposition Deputies and to introduce greater flexibility into the process. A two month timeframe appeared in the 1997 Bill and it strikes the appropriate balance between the interests of the complainant and those of the service provider. The difficulty arises if, for example, a person tells a publican the problem occurred on 15 November last year. The respondent must have time to remember the event and to be able to respond. We must strike a balance between the rights of the person making the complaint and the respondent. Section 21(3) deals with exceptional circumstances. It states that "for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction".
I move amendment No. 71:
In page 24, subsection (1), line 14, after "heard." to insert "Provision shall be made for representations to be made on behalf of the complainant by a representative to the Director.".
This relates to investigations by the director. Section 25(1) states that ". . . .the Director shall investigate the case and hear all persons appearing to the Director to be interested and desiring to be heard". We want to add "Provision shall be made for representations to be made on behalf of the complainant by a representative to the Director". It should be clearly stated in the Bill that the director will be able to hear submissions by a professional person on behalf of a complainant.
I am conscious that many people will want the support and representation of others in bringing cases to the director. It is entirely reasonable that a person bringing a complaint could be assisted or represented by a friend, a trade union or an organisation.
Or a professional person.
This has been the practice under employment equality legislation on an administrative basis. Many of us would know of cases where a person brought their trade union representative, friend, brother or sister. I emphasise that we expect this practice to continue. My officials have been in contact with the Office of the Director of Equality Investigations about this issue. There will be no problem with the continuance, on an administrative basis, of such arrangements. Indeed, natural justice would require the continuance of such arrangements in terms of custom and practice. In the light of this, I do not propose to accept the amendment.
What is the Minister's decision on the amendment?
I am not accepting the amendment. This is happening in practice.
It is a pity it is not in the law which would ensure it would always be practised. However, I will not press the amendment.
Amendments Nos. 72, 75 and 76 are related and may be taken together. Is that agreed? Agreed.
I move amendment No. 72:
In page 25, subsection (1), line 13, to delete "section 25” and substitute “section 25(4)”.
These are technical amendments. Amendment No. 72 is important in that it relates to the time limit for appeal. We ask that the time limit for appeal should run only from the final decision under section 25(4) and not an intermediate decision under section 25 which would make a major difference in practice.
I put these amendments to the parliamentary draftsman but I am advised that these changes are not appropriate. The text in the Equal Status Bill is entirely consistent with its sister Act, the Employment Equality Act, with regard to these drafting issues. I do not propose to accept the amendments.
I move amendment No. 73:
In page 25, subsection (1), lines 24 and 25, to delete paragraphs (a) and (b).
This relates to appeals against decisions of the director, the form and contents of a decision by the director in relation to an appeal. Section 29(1) states:
(1)Every decision of the Director under this Part shall be in writing [in other words, the director puts his decision in writing] and–
(a)if the Director thinks fit, or
(b)if any of the parties so requests,
shall include a statement of the reasons why the Director reached the decision.
We believe the decision of the director should not have these qualifications, that is, "if the Director thinks fit" or "if any of the parties so request". We believe each decision should at all times include a statement giving the reasons the director reached the decision. To give it transparency and openness, the director should be in a position to give the reasons for any decision he makes. In that way, people will have confidence in the decision making process and it will be transparent.
This brings us back to the critical test which has to be applied in this legis lation – all the different grounds. Senator Connor's point sounds reasonable but I would say to him that there is no motivation or secrecy underlining the provision. It merely enables the director exercise discretion where it is called for. The effect of the amendment would be to remove the flexibility aspect in a sexual harassment case, for example. It might be considered appropriate or parties to the case may prefer not to include information in the final decision or determination.
At the same time, the provision ensures that the parties can obtain a reasoned decision from the director if they so wish, but they may not want the detail. There is no motivation or secrecy in this provision. It is simply to allow that flexibility depending on the type of case before the director. The wording in this section is identical to that in the Employment Equality Act.
I move amendment No. 74:
In page 25, between lines 27 and 28, to insert the following new subsection:
"(2)The Director shall give notice of a decision in a format accessible to a complainant with a disability, and shall in general adopt such procedures as will facilitate the participation of persons with disabilities including receiving submissions made through sign language or other formats.".
Amendment No. 74 is self-explanatory in that it requires the director to give notice of a decision in a format accessible to a complainant with a disability. As this legislation is directed towards achieving a balance of rights and ensuring we facilitate disabled people as far as possible, this amendment is very sensible and is one I hope the Minister will accept.
Similar amendments were tabled during the passage of the Bill through the Dáil. We examined the matter in consultation with the Director of Equality Investigations. Following that, we do not consider it wise to set out in primary legislation the type or form of procedure mentioned in the amendment. The informal procedures which have been developed over the years by equality officers operating under the umbrella of the Labour Court and the Labour Relations Commission and which take due account of case law and the rules of natural justice have proved to be effective. The director will build on these administrative procedures taking account of the new grounds of discrimination in drawing up operating procedures for the new office. There has been an examination of the accessibility issues raised not only in relation to people with disabilities but with language problems or otherwise requiring help.
In addition, section 25(3) provides for the possibility of making regulations governing the procedures of the director's office if, in time, it is shown that the less formal operating procedures are less than effective. We will have the opportunity to deal formally with accessibility issues when making regulations.
In drawing up those regulations on which she will possibly have some influence, I ask the Minister to take the concerns of the disabled, as expressed in this amendment, into account.
I move amendment No. 77:
In page 32, line 15, to delete "resides or ordinarily" and substitute "ordinarily resides or".
This is a technical amendment.
I accept this amendment.
Amendments Nos. 78 and 79 are related and may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 78:
In page 33, line 11, after "the" to insert "repealed".
These are technical amendments.
I cannot accept amendments Nos. 78 and 79. The transitional provisions in section 47 were carefully formulated and having consulted with the parliamentary draftsman, I am unable to accept the amendments.
Amendment No. 79 proposes the deletion of lines 31 to 37 in page 33 because the subsection does not appear to have any meaning. It suggests that a claim made before the commencement date of October 1999 can relate to conduct after that date. This does not appear to make sense and that is why the amendment proposes its deletion.
We drew this issue to the attention of the parliamentary draftsman and his opinion is that the transitional provisions in section 47 were carefully formulated and there is no requirement for the proposed change.
We will have to agree to differ.
Amendment No. 80 is out of order because it involves a potential charge on the Exchequer.
When is it proposed to take Report Stage?