Equality Bill 2004: Committee Stage.

Sections 1 and 2 agreed to.
SECTION 3.

Amendments Nos. 1 to 4, inclusive, are related and may be taken together. Is that agreed? Agreed.

Government amendment No. 1:
In page 6, paragraph (a), lines 11 to 28, to delete the definition of “contract of employment” and substitute:
"‘contract of employment' means, subject to subsection (3)—
(a) a contract of service or apprenticeship, or
(b) any other contract whereby——
(i) an individual agrees with another person personally to execute any work or service for that person, or
(ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract),
whether the contract is express or implied and, if express, whether oral or written;".

Amendments Nos. 1 and 2 are technical amendments to section 3(a) of the Bill arising, in the case of amendment No. 1, from a clerical drafting error in the alignment of text and the omission of the wording in the definition of discrimination inserted into the Act of 1998 by the Equal Status Act 2000. The first amendment realigns lines 26 to 28 to restore their application to both paragraphs (a) and (b) of the definition of “contract of employment”.

The second amendment re-inserts the wording necessary to bring discrimination prohibited by the Equal Status Act within the remit of the Equality Authority. The additional wording to this definition as provided for in section 3 of the Equality Bill will be retained.

My amendment follows on from an issue I raised on Second Stage. The words I wish to be removed from the definition of employee are ", but does not include a person employed in another person's home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons;". The effect of this provision is to exclude from the protection of equality legislation, under the nine grounds of discrimination, all people employed in a person's home. I was less than overwhelmed with the Minister's explanation for this extraordinary provision when I raised the matter during the Second Stage debate. The Minister claimed this provision is a step forward rather than a step backwards because it replaces an existing exclusion which was broader in scope. He was not, however, able to dredge up an argument for inserting that exclusion in the first instance. Exclusions of that type do not make sense. Perhaps there is a logical explanation for it, but we did not hear it. The Minister's unease in this regard was demonstrated by his promise, by which I was heartened, to reconsider the section again. I believe I am pushing an open door with amendment No. 3. This is an important matter.

A considerable number of people are employed in people's homes, most notably as nannies and au pairs. They are the very people likely to be discriminated against. Given that they come here from abroad, they are ripe to be exploited and, the truth is, they often are. Most of the complaints of discrimination of which I am aware relate to such people more than anyone else. It is vital we do not draw a veil over this matter on some spurious ground of preserving family life or privacy. Employment is employment regardless of where it takes place. I mentioned on Second Stage that my colleague, Senator Norris, would be upset to discover a butler or valet working in a private home was discriminated against because he was gay. This legislation would not apply to such a person because he is employed in a private home. Employees are entitled to the protection of this legislation irrespective of where they work. The notion that employment law should stop at the front door of a private house is ridiculous. I do not understand it. If that was the case, a similar argument could be made for exempting domestic employment from income tax or PRSI. We do not do that and are right not to do so. There is nothing magic about the family home or individual privacy that keeps the taxman away from such employment. Why should equality legislation be different?

I would like to know from where the idea to exclude employment in the home arose. Who lobbied for this exclusion and on what grounds? On the face of it, it appears to me to be daft. It excludes from the provisions of this important legislation some of the most vulnerable members of society. I do not understand why we are doing so. I commend my amendment to the Minister and to the House. I know he explained on Second Stage that this provision came about by way of European legislation and that it weakened rather than strengthened the legislation. Perhaps the Minister has an explanation as to why this provision is being included.

If Senator Quinn reads amendment No. 4, he will find that much of what he said is now irrelevant. I signalled on Second Stage my intention to bring forward this amendment to section 3(a) to ensure that the limited exclusion from what is defined as an employee for the purposes of the Employment Equality Act is further confirmed. The definition of employee in section 2 of the 1998 Act is being amended in section 3(a) of this Bill to include members and former members of regulatory bodies and to exclude people employed in another person's home to provide personal services to persons living in that home where they affect private or family life. This exclusion, which replaces more broadly based exclusions in the Employment Equality Act, is intended to strike a balance between the equal right of a person to private and family life and to equal treatment. For this reason, I propose to further qualify the exclusion to clarify that it applies only in so far as access to employment is concerned. Once in employment, this provision will not apply and any such person concerned, whether he be a gay butler or whatever, will be fully protected by the provisions of the Act.

Senator Quinn's amendment proposes the deletion, from the definition of employee for the purposes of the Act of 1998, of the exclusion in respect of persons employed in another person's home to provide personal services to persons living in that home where they affect private or family life. In my amendment to this proviso, which further qualifies the exclusion to clarify that it applies only in so far as access to employment is concerned, I have outlined the reasons that this provision is appropriate. The directives recognise and provide for the need to permit differences of treatment based on a characteristic related to any of the discriminatory grounds where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried on, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. General application of this principle is reflected in the new provisions proposed in respect of sections 25 and 37 of the Employment Equality Act, provided under sections 16 and 25 of the Equality Bill.

The Employment Equality Act also provides for exclusions in respect of services of a personal nature or employment for a private household. Under section 26(2) of the Act, discrimination in employment on the gender ground is permitted where it "consists of the performance of services of a personal nature, such as the care of an elderly or incapacitated person in that person's home, where the sex of the employee constitutes a determining factor". Section 37(5) provides a more general exclusion in the case of discriminatory grounds other than gender where the employment is "for the purpose of a private household", which is very wide. The new provision in section 3 will replace these exclusions with a much more limited mechanism which will now be further qualified by the amendment I have tabled.

I appreciate what the Minister of State has said. When I tabled the amendment, I did not realise he intended to put down amendment No. 4. He has taken a certain step in the direction I have outlined and I understand the logic of what he is doing. I will not pursue the matter.

Amendment agreed to.
Government amendment No. 2:
In page 6, paragraph (a), line 32, after “discriminate” to insert “and, in Parts V and VI, includes prohibited conduct within the meaning of the Equal Status Act 2000, and cognate words shall be construed accordingly”.
Amendment agreed to.
Amendment No. 3 not moved.
Government amendment No. 4:
In page 6, paragraph (a), line 38, after “but” to insert “, so far as regards access to employment,”.
Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.

Amendments Nos. 5 and 6 may be taken together by agreement.

I move amendment No. 5:

In page 9, to delete lines 3 to 8 and substitute the following:

"(c) it shall not be lawful for an employer to require an employee compulsorily to retire from his or her employment on reaching a particular age if on reaching that age the employee is able and willing to continue in employment.”

I referred to this matter on Second Stage. The purpose of the amendment is to do away with compulsory retirement ages and to stipulate that it would be discriminatory to set down such ages in employment contracts in the future.

This is a matter in respect of which action is needed. I read an interesting article in a supplement ofThe Sunday Times which outlined the problems the UK will encounter in the future in terms of demographic changes. The article in question referred to Ireland which in terms of population replacement, namely birth rate, is not producing enough people to replace those who die. This is the general trend in Europe. The younger population of Ireland will decrease and people will live longer because they pursue healthier lifestyles. Outside of that, there is a need to take action to retain older people in the workforce.

The article to which I refer mentioned that we are wasting a resource by making people retire at particular ages before they need or want to. Early retirement is available in Ireland. We have been getting rid of people with great experience, and who have made a great contribution to the economy, from the public service. We need to reverse that type of approach, both in terms of our demographic needs and also because of the positive contribution those people make to the workforce and the economy.

There may be moves along these lines at European level but Ireland must show the lead in respect of this matter, which is the reason I tabled an amendment. The amendment states that employees should be able and willing to continue in employment. On Second Stage, I stated that it would be important, in terms of bringing about this change, to allow for more flexible work practices and to encourage people to change careers. We do not want people to be forced to remain in jobs in which they are not happy. It is not just to older people that more flexible work practices should apply; they should apply to people with families and those in other circumstances. I accept that the change would have to be made in that context.

The amendment is based on US anti-ageism law. I do not know if the Minister of State will take it on board at this point but, for many reasons, we must begin to take action in respect of this issue in the near future. If we do not take such action, we will only compound the problems that will arise in the future. We will waste a great opportunity in terms of keeping people involved in the workplace if we do not do something.

I have given further consideration to the amendment to the existing legislation which the Bill will make. I refer here to section 4(c), which the Labour Party's amendment would remove. I am not sure that paragraph (c) represents a positive amendment and I would like the Minister of State to indicate how it improves the situation as regards people over 65. I thought initially that it was a positive amendment but now I am not so sure. I would like the Minister of State to consider the Labour Party's amendment as an alternative. Senator Quinn's amendment No. 6 is somewhat similar to ours and I welcome it.

I support Senator Tuffy's amendment. Ireland is behind other countries in terms of recognising the contribution older people can make to society. As people are healthier, live longer and are fitter than ever, many are capable of working beyond the retirement age. I recognise that the Minister for Justice, Equality and Law Reform has made moves in this regard in respect of gardaí, the retirement age relating to whom he is going to extend. We need to take this matter on board and deal with it when opportunities present themselves. This is certainly one such opportunity to make provision in this area.

There has been a great deal of discussion about the pension time bomb This amendment represents one way of dealing with it, particularly for those people who wish to and are capable of working longer. We should not place obstacles in their way or prohibit them from doing so. Having visited the United States on a number of occasions in recent years, I was struck by the number of older people who work in many of shops, department stores and DIY outlets. That trend, which is welcome, is also beginning to become apparent here. We should embrace it and allow people to work for as long as they wish or are capable.

I support the comments of Senators Tuffy and Terry in respect of this amendment and that in my name. As with amendment No. 3, amendment No. 6 arises on foot of a concern I raised on Second Stage. I hope the Minister of State will make a little history by accepting it. I read an article some years ago which asserted that the Americans had found that if one wished to detect future trends, reading local newspapers was very effective. It was very interesting. The article said that local newspapers are very much stuck for space and have to find things to exclude. If one looks up the word "discrimination" in the newspapers of the 1950s, it will refer to discrimination based on colour. In the 1960s, the word was used to refer to discrimination based on racial grounds. In the 1990s, however, the word discrimination occurred most often in local newspapers in the context of discrimination on the basis of age. Right around the United States of America in the early 1990s laws and rules were introduced at local level to prevent discrimination on the basis of age. We have not taken that first step yet, although Senator Tuffy's amendment is an attempt to do so.

I spoke about the Minister of State making history. Provisions will be made in this area and it is a question now of whether the Minister of State decides to take the first step. As I said on Second Stage, while our population is getting steadily older, we show very few signs of having come to terms with the fact. One symptom of this failure is that there is no provision in this Bill or the entire corpus of equality legislation which sets out to attack the concept of compulsory retirement. My amendment seeks to correct this position.

I must make my position clear on this matter. I do not wish to raise the age of retirement as does the Society of Actuaries. While the Government is poised to introduce a measure to raise the retirement age in the public service, that is a separate matter from the one I am raising. I have no wish to force anybody to work beyond the accepted retirement age and my amendment makes that quite clear in paragraph (c). It states: “Nothing in this subsection shall be construed as interfering with the right of an employee to retire at a particular age, when such a right exists by way of contract, regulation or custom.” I am not talking about forcing anybody to work up to or beyond a certain age. I am talking about circumstances in which a person is willing and able to continue to work, but is prevented from doing so by a compulsory retirement age.

People vary greatly in their wishes in this area which is precisely why I am against compulsion to regulate it. Some people cannot wait to move on to a life of retirement while others are greatly distressed at the thought of stopping work and argue that they are fully capable of continuing. Others would like to work part-time or in a reduced capacity. Senator Terry has spoken of the United States of America where it is so interesting to see the number of people who have retired from one job and are happy to work part-time in various others.

Those who wish to work in a reduced capacity find that taxation and pension arrangements make that more difficult to achieve than it should be. Amendment No. 6 arises from my belief that the time has come to outlaw the concept of compulsory retirement at an arbitrary age. The key word is "arbitrary" as that is where the discrimination arises. No one would argue that older people are as physically capable as younger people. No one would argue that some extremely old people do not begin to lose some of their mental faculties. For such people, an honourable retirement is an appropriate way in which to spend their last days. No one would dispute that and my amendment provides specifically for such circumstances in paragraph (d). It states:

Nothing in this subsection shall be construed as requiring any person to retain an individual in a position if the individual—

(i) will not continue to undertake the duties attached to that position or will not continue to accept the conditions under which those duties are, or may be, required to be performed, or

(ii) is no longer fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

I am sorry to have gone through it in such detail, but I have taken some pains to make sure those areas are covered. To argue that at a particular age, usually 65, all people without exception become incapable of further employment is simply wrong. More to the point, it is flagrant discrimination. As such, it should feature in equality legislation which purports to remove all discrimination on any of the nine grounds. I am not arguing that abolishing the concept of compulsory retirement would achieve what is necessary to restructure our society to cope with the significant challenge of an ageing population. While making compulsory retirement illegal would be a small dot on a very large canvas, it would be a start. Its importance would be in signalling our alertness to the issue and our concern for the interests of the older members of our population.

Making compulsory retirement illegal would have considerable benefits and almost no cost. At a personal level, nobody would be forced to work beyond whatever was the normal retirement age in his or her particular occupation. At a business level, no one would be forced to continue to employ a person who was incapable of performing the essential functions of a particular job. The EU directive is quite clear on this point and the wording of my amendment underlines it. To those who prefer to continue to work, this change would be a great boon. In most cases, there would be a clear benefit to the companies for which they work. To the wider economy, the benefits of having someone continue to be economically active are too obvious to require spelling out.

There may be some exceptional employments in which compulsory retirement is appropriate such as those in the Defence Forces and the Garda. Senator Terry has mentioned that there has been some movement in that direction. This is why the final paragraph of my amendment specifically identifies both the Defence Forces and the Garda and excludes them from the scope of my proposals. In making these exclusions, I am trying to side-step some obvious objections to my amendment. As I said on Second Stage as well as at the outset of my remarks on these amendments, the Minister of State has an opportunity to make a little history by accepting my proposals. I hope he takes it.

The acceptance of the amendments would mean that on reaching the age of retirement, the decision would be for the individual to make on whether he or she is willing and able to continue in employment. It would be very difficult for employers if the decision was enshrined in legislation as one for the person in employment to deem himself or herself willing and able to continue. Can the Minister of State explain the position?

I am sympathetically disposed to this amendment. The case has been very compellingly put by Senator Tuffy who was ably supported by Senator Terry and Senator Quinn. Unfortunately, I cannot accept the amendment today for reasons I will explain. I would love to avail of Senator Quinn's invitation to make a little history. I read inThe Sunday Times the article to which Senator Tuffy referred and found it excellent. I remember several years ago writing an article on the same subject for an even better Sunday newspaper.

The position is that section 34(4) of the Employment Equality Act 1998 provides that "without prejudice to subsection (3), it shall not constitute discrimination on age grounds to fix different ages for the retirement whether voluntarily or compulsorily of employees of any class or description of employees". While the framework employment directive does not require it, the question of removing this provision was raised during consultations with the social partners and relevant Departments. It was also raised in this House on Second Stage of this Bill. In the consultations, there was widespread recognition that the labour force was becoming older and that the participation of older workers should be facilitated. Nevertheless, a consensus emerged that the issue went beyond employment equality policy and had broad socio-economic and industrial relations implications.

Compulsory retirement ages are a feature of many types of employment in the public and private sectors. They have been established over time and, in many cases, after negotiation and collective bargaining. In the case of private sector employment, the removal of existing agreements or arrangements on compulsory retirement ages is a matter firstly for discussion among the social partners. We have agreed to enter discussions with the social partners on that very subject. In his recent Budget Statement, the Minister for Finance announced that he would bring forward legislation to remove the compulsory retirement age for new entrants to the public service. I expect that legislation to be published on Friday.

I agree with Senator Tuffy's point that paragraph (c) might be a little confusing. I have read it a second or third time. Up to now, if an employer had different categories of employee, and offered those working in a machine shop, for example, a contract taking them beyond the age of 66, at which age all the other employees would retire, people working in other parts of the enterprise could then have brought a case based on the equality legislation to say they should be offered a similar facility. The net effect of this paragraph is to prevent employees taking such action. It is to enable the employer to offer contracts beyond the age of 66 to the employees believed, for example, to be the most useful to the employer.

I understand what the Minister of State says. Obviously this would need to be thought through properly, and there are implications for industrial relations, and so on. I am concerned that if one waits for all that to happen, it might be too late to do something about it. There should be some kind of timescale, and deadlines. I understand that the EU is considering a compulsory retirement age of 70, or perhaps changing it to 70. It was mentioned in an article but I do not know the details. There should be no age limit. If change is to be made, the age limit should go. I am concerned that we may let this slide. There are other matters to be considered. The one thing that is still politically correct in this country is age discrimination. The step under consideration would be a major one in getting rid of it, and would not involve costs. It would be more likely to be of benefit than of hindrance to the economy and to employers. The Minister of State spoke of discussions, but the Government should give a deadline, and put matters in train now, allowing the various negotiations in the meantime.

We worry about such matters as what might happen if people from the EU accession countries come to Ireland. The article inThe Sunday Times of which I spoke noted that those countries have problems too, for example decreasing population. We will face a problem in this area quite soon. If we do not act, we could face an economic crisis. I do not wish to sound as if I am thinking only of the economic aspects, as I am greatly opposed to age discrimination.

There is also the matter regarding "willing and able". That relates to people working at any stage of their lives. We still retain the notion that "ability" might be slightly different when people are older. We do not do so in this House, and we need to get rid of that notion. People can have ability up to any age, or can lose it at an early age. There are many different circumstances. An older person can be just as capable of doing a job as a younger person. If one considers judges, people are wiser and have more experience when they get older. That is a very valuable asset in a workforce.

I appreciate the response by the Minister of State. I did not ask to him to make history, as I know it is unlikely that such a big step as this would take place today. In his explanation, the Minister of State has drawn the attention of the House to the difficulties in the private and public sectors. I was impressed when he said that legislation will be introduced next Friday to the effect that new entrants in the public service will not face an age limit. I ask him to explain that so I can understand exactly what will happen this week, and what legislation if any is involved.

I thank the Senators for their constructive approach, and will convey the views of Senator Tuffy to the Government. I realise the urgency of this matter, and that during the recent period of very rapid economic growth, bottlenecks developed in certain sectors of the labour market, as Senators are aware. These could have been alleviated in certain areas known to me, but for the compulsory retirement age. We saw an example in the Department of Justice, Equality and Law Reform, where we lost some of the best detectives in Limerick at a time when we could ill afford to do so, because they were obliged to retire at a certain age. The Minister is now taking action in this area.

I realise the urgency, but in view of the potential industrial relations implications and the seismic change contemplated in the matter under discussion, which is engaging governments throughout Europe, it would be unwise to draw up deadlines. The Government is aware of the urgency of the situation, and I will convey the views expressed by Senators today.

Regarding what Senator Quinn said, I do not want to make an announcement today on what will be contained in the legislation from the Department of Justice, Equality and Law Reform, which will be published next Friday. The Minister referred in his Budget Statement to the notion of allowing new entrants to the public service a contractual right to work beyond the traditional retirement age. The legislation will reflect that promise and will deal with ancillary matters. It will also give us a good indication where we are going in regard to the private sector. I will say nothing further about that today. I have not seen the legislation, which will be published by Friday at the latest.

Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
Section 4 agreed to.
NEW SECTION.

I move amendment No. 7:

In page 9, before section 5, to insert the following new section:

5.—The Act of 1998 is amended by inserting the following section after section 7:

‘Equal Pay for Equal Work

7A. The Minister is committed to ensuring the adherence to, the application and enforcement of the principle of equal pay for equal work in all circumstances.' ".

This is meant to strengthen the section. As the Minister of State knows, there is an established principle of equal pay for equal work across the EU. There are no provisos involved. It is a very simple principle.

I spoke on Second Stage about secretarial staff members in Leinster House who sit beside one another and do not get equal pay for equal work. The Minister of State said then he would respond to me. I do not know if he has had an opportunity to look into this. The situation occurs in Leinster House and the Minister of Finance is responsible for it. We should not have pay inequality in any place where the same work is being done. I would like to see the Minister of State endorsing his commitment to equality. That is why I have tabled the amendment. I am concerned about a number of sections in the Bill which I feel will allow for discrimination, particularly section 24, to which I will return.

The amendment is meant to endorse the Government's commitment to equality. I accept the Minister of State may refer me to Government amendment No. 2 which allows for the insertion of "and, in Parts V and VI, includes prohibited conduct within the meaning of the Equal Status Act 2000". I wonder if the Minister of State will say that this covers the nine grounds of discrimination. We should endorse and confirm equality in all spheres of life with every opportunity we get.

I cannot disagree with the logic of anything Senator Terry says. I agree with all her sentiments. However, I have been advised that because the proposed amendment is aspirational in character, it would not be appropriate to include it in primary legislation. The Act of 1998 is by definition an Equality Act. The provisions of the earlier gender equality legislation were enhanced and extended by the Act to eight additional discriminatory grounds with the specific provision to enshrine the entitlement to equal remuneration across these grounds, and put in place strong enforcement measures. The Act recognises that by itself, non-discrimination may not provide a sufficient safeguard to protect, for example, the right to equality of people with disabilities. For this reason, specific requirements were imposed on employers under section 16 of the Act to accommodate the needs of people with disabilities in the workplace.

All good law seeks to address real issues in a way which is practicable and effective and without causing unnecessary difficulties. Section 35 of the 1998 Act recognises that there may be some cases in which a disabled employee would be excluded from a particular work arrangement if inflexible provisions are put in place. In such situations, which would arise where an accommodation of the person's special needs would not in itself be sufficient, different rates of pay may be permitted providing they match the output of the person employed. That is just in respect of that particular section. I agree with what the Senator said but it would not be appropriate to include such a provision in what is primary legislation.

Is the amendment being pressed?

I do not understand the Minister's point that my amendment is aspirational. This amendment seeks to make a commitment. I do not want it to be aspirational. The amendment states that the Minister is "committed to ensuring . . .". That is giving a commitment. It is not in any way aspirational. I ask the Minister to consider this matter again before the Bill goes to the Dáil, where I hope he will accept it because it will be tabled again at that time.

Amendment, by leave, withdrawn.
Section 5 agreed to.
Sections 6 to 8, inclusive, agreed to.
SECTION 9.

I move amendment No. 8:

In page 12, line 12, after "on" to insert "reasonable accommodation hereafter referred to as".

We want to insert the term "reasonable accommodation" in section 9 because that is the term used in the explanatory memorandum but it is also used in US law. We do not understand the reason it cannot be used in the Bill. I would like to hear the Minister's comments on it.

The Senator has raised a fair point and I thank her for bringing it to our attention. She has highlighted an omission and between now and the taking of the Bill in the Dáil I propose to either accept her amendment as it is or consult with the Parliamentary Counsel to see if we can put it somewhat more elegantly. I accept the principle of the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 9 and 10 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 9:

In page 12, lines 21 and 22, to delete "impose a disproportionate burden" and substitute "be grossly unreasonable".

On Second Stage I expressed concern about the language used in the Bill, which refers to burden, disruption and detriment. Those words should be eliminated from our vocabulary when we speak about people with disabilities. An employer should not be allowed to evade his or her responsibilities to facilitate people with disabilities merely because it is an inconvenience. The hurdle should be set higher than that and obligations of this nature should only be avoidable in cases where to impose them would be grossly unreasonable on the employer. I ask the Minister to consider accepting this amendment because otherwise we are leaving it open for employers to avoid their responsibilities.

I have some sympathy with Senator Terry's fears about the use of terminology like "unreasonable burden" in the context of disability but, unfortunately, I cannot accept the amendment for legal reasons. Before the European directive was transposed into law, the Supreme Court decided that extra costs cannot be imposed on employers in respect of people with disabilities other than nominal costs. Employers cannot be forced to accommodate people because of their disability if it imposes a burden on them other than nominal cost. That was the decision of the Supreme Court under Article 43 of the Constitution.

The framework employment directive overrode that decision and allowed a different test, known as a disproportionate burden, which gives some more leeway to employers and improves the position of people with disabilities. In addition to using this terminology, and we are taking it directly from the framework directive, the EU Commission went on to explain what it means and set out the parameters of it, which we repeat in the legislation.

We have got cover, as it were, to override the limitation put by the Supreme Court because of the EU framework employment directive. That being the case, we have to use the terminology in the EU framework employment directive, which usefully sets out what it means, and we have put that into the legislation as well.

While I sympathise with what the Senator said about the terminology, and perhaps the people in Brussels did not consider that in the context of people with disabilities and the inappropriateness of the terminology, that is the terminology which overrides the constitutional restraint put on us and because of that, I could not drop it now and insert completely new terminology. It would not be sustainable.

Amendment, by leave, withdrawn.
Amendment No. 10 not moved.
Section 9 agreed to.
NEW SECTION.

I move amendment No. 11:

In page 13, before section 10, to insert the following new section:

10.—Section 16 of the Act of 1998 is amended by inserting the following subsection:

‘(7) Nothing in this section shall operate to discharge an employer from his or her obligations to provide full and equal access of employment to persons with disability.'".

This amendment inserts a new sub-section in section 16 of the Employment Equality Act 1998. Section 9 of this Bill goes quite a distance in relieving employers from their duty to adapt their premises for disabled people but the section goes too far in doing so. My amendment seeks to ensure that section 16 of the 1998 Act cannot be used to justify inaction on the part of the employer. It is essential that employers' premises and other public premises should be adapted to facilitate people with disabilities. That is what we would expect these days and our legislation should reflect that point.

I dislike refusing all the Senator's amendments but the difficulty with this amendment is essentially the same as the difficulty with the previous one. Section 16 of the Employment Equality Act 1998 is a complex and specific provision which recognises that additional provision is necessary to protect the rights of people with disabilities. Section 16, as amended in this Bill, will require employers to take appropriate measures in respect of access to and advancement in employment, as well as in respect of training. Unfortunately, that obligation, even under the amended legislation today which flows from the EU framework employment directive, is not open-ended. There is a limit to it. It no longer becomes an obligation at the point at which it becomes an unreasonable burden on them. The advice I have is that inserting this sub-section, however desirable it might appear, would pose the same problem as caused me not to accept the previous amendment.

Amendment, by leave, withdrawn.
Section 10 agreed to.
Sections 11 to 15, inclusive, agreed to.
SECTION 16.
Question proposed: "That section 16 stand part of the Bill."

The Labour Party opposes this section because it is a step backwards in terms of the legislation and is a huge inroad in terms of the current ban on sex discrimination in the workplace.

In section 25 of the 1998 Act, gender is a legitimate requirement only in certain limited areas — physiology, entertainment, duties outside the State, personal services, separate sleeping facilities etc. Under the Bill any ground could justify discrimination on gender grounds if it has an occupational requirement. It is just too broad. On the issue of entertainment, it is obvious why one would discriminate on grounds of gender in the area of acting. A person might choose a female taxi driver. I can understand the reasons but on the broader issue of an occupational requirement, I cannot think of any occupation where it would be a requirement to be one sex or the other. I am sure somebody will give me an example. This is opening up an excuse to people to discriminate on grounds of gender in various jobs and it will make the legislation much more difficult to implement.

Certainly on this issue, the Bill does not flow easily. I can see the sense behind what the Minister is trying to achieve, except for the phrase, "A difference of treatment which is based on a characteristic related to the gender ground," which the Minister might explain. In my understanding of equality legislation, no one could argue if an employer took a decision on the basis of:

(a) the characteristic constitutes a genuine and determining occupational requirement for the post, and

(b) the objective is legitimate and the requirement proportionate.

If that happens to exclude a woman, no one could argue that was discrimination on gender grounds. Like Senator Tuffy, I do not understand why it has to be written in this form as a gender issue. If someone took a case and said that because of a particular gender he or she believed he or she had been discriminated against and if the employer's response was on the basis of paragraphs (a) and (b) I think the case would not stand, and rightly so. Like Senator Tuffy I am not sure exactly what is being got at here.

If there was a strong lifting or reaching requirement and somebody did not physically measure up, whether a man or a woman, that could not be seen as constituting gender discrimination. If I am missing something I suspect it is around "A difference of treatment which is based on a characteristic related to the gender ground". The part I cannot understand is, "related to the gender ground". If we were to say something physical that referred to strength, would that automatically mean gender because men tend to be stronger than women? In all fairness, I do not have an objection to the issue. It is just that writing it down in this way seems be a backward move. It is not what the Minister is trying to achieve. It opens up an issue which it was unnecessary to touch. It does not add anything to the section.

This section replaces section 25 of the 1998 Act. Section 25(1) refers to discrimination against A in respect of employment in a particular post if the discrimination results from preferring B on the ground, that by reference to one or more of subsections (2) to (4) the sex of B amounts to an occupational qualification for the post in question. Subsection (2) states:

For the purposes of this section, the sex of B shall be taken to be an occupational qualification for a post where, on grounds of physiology (excluding physical strength or stamina) or on grounds of authenticity for the purpose of entertainment, the nature of the post requires

(a) a person of the same sex as B, and

(b) would be materially different if filled by a person of the same sex as A.

As I understand it, the new section is trying to narrow that exclusion and allow the matter to be determined on a case by case basis. The legislation is not saying a person can discriminate against taking on a person on the grounds that they are of a particular sex but if an employer says to a person who applies for a job what they want done and that it does not particularly suit a person of his or her sex, the person can take a case against the employer. The employer will be able to plead these grounds by way of defence. Whether the defence will stand up depends on the facts of each individual case.

Section 16 of the Bill replaces in its entirety section 25 of the Employment Equality Act. In accordance with article 2.6 of the Gender Equal Treatment in Employment Directive, member states may provide that in relation to access to employment or to training leading to employment, a difference in treatment based on a characteristic related to sex shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned, or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement provided that the objective is legitimate and the requirement is proportionate. There are many hurdles to overcome there.

The gender provisions of the Employment Equality Act do not contain an exclusion of this nature restricted to legitimate occupational activities, necessitating the employment of a person of a particular sex. Section 16 of the Bill remedies this by replicating article 26 of the directive. The blanket type exemptions provided in section 25 of the 1998 Act are not permitted by the directive. The wording of the new section 25 which is being inserted here follows exactly the wording of the directive. As suggested by Senator O'Toole, we will have another look at the wording to see whether it can be done more elegantly to avoid any possible misinterpretation that suggests we are going backwards. We are certainly moving forward. We are severely narrowing that exclusion in the 1998 Act by following exactly the words of the EU directive which obliges us to do so. If we can meet the requirements of the EU directive by using more acceptable language I am prepared to have a look at it.

I would be pleased if the Minister would look at it again to see whether any improvement can be made, as suggested by Senator O'Toole. I still do not see that it is narrower than the original section; I would have thought it was broader. I just think it might protect people to discriminate on grounds of gender. Research has been carried out that shows men think differently from women in particular areas and that their brains operate in different ways. Somebody might use that as their characteristic and that would be a totally unjustified approach. There are different types of research. It provides a very broad area for people to defend themselves. People may use that section as an excuse and say they are covered by the way it is worded. That is an issue that needs to be looked at by the Minister.

I do not think it will be an alibi for employers to open up an avenue of discrimination on gender grounds. If the employer refuses a person a job, which he advertises and is available, because of their gender and the person takes him to the equality tribunal the onus will be on the employer, provided aprima facie case is made — because of another section in the Bill — to prove that the gender characteristic constitutes a genuine and determining occupational requirement of the post which he is seeking to fill. He must also establish that his objective in filling that post with a person of a certain sex is legitimate and that the requirement is proportionate. There is a number of hurdles there. The message should go out from here today to anybody who thinks this gives them an alibi or an excuse to refuse people right, left and centre because he does not like people of a particular gender, whether male or female, that is not the intention and that is not what is provided for in the section. As I said to Senator O'Toole, perhaps the wording is somewhat inelegant and gives out the wrong impression; we are prepared to consider that. If some way can be found to put the matter more gently while still meeting the requirements imposed on us by the EU, we would be happy to do that. However, I want to make clear that this is not carte blanche for employers to do what they like and to re-open another avenue of gender discrimination. That will not happen. Given the manner in which the equality tribunal deals with the cases brought before it under the 1998 and 2000 Acts, I am certain it will not happen.

Question put and agreed to.
Sections 17 to 23, inclusive, agreed to.
SECTION 24.

I move amendment No. 12:

In page 17, line 26, to delete "unlawful" and substitute "lawful".

This is one of the most important sections of the Bill and the one with which I am most unhappy, in particular in regard to the word "unlawful" being put into this part of the Bill, a point I highlighted on Second Stage and earlier in the debate this morning. This openly permits the payment of different rates of pay to disabled persons, which is completely contrary to the principle of equal pay for equal work and is a regressive step. I am amazed the Minister of State is going along with it and ask him to reconsider. The section lends statutory legitimacy to discrimination and represents a real avenue for the exploitation of vulnerable people who, for fear of losing their jobs, will be reluctant to complain.

If we are serious about bringing people with disabilities into the workplace, we must bring them in with open arms. They are members of the workforce as able-bodied people are and, therefore, must get equal pay. One may say that in a day's work they may not be able to achieve as much work as the able-bodied, in certain circumstances. However, while we say "able-bodied", no two people can deliver the same amount of work in a day. While a more capable person might be working beside a less capable person, they would both be considered able-bodied and are not called persons with disabilities. To make a certain category for people with disabilities and to allow employers to pay them less than the able-bodied is a regressive step and one we should avoid.

This is the most important section of the Bill. If we get it wrong, we will throw away an opportunity to deal properly with equality. There is no point paying lip service to equality if we are to deal with the Bill in such fashion.

I have similar concerns to Senator Terry in regard to this section. In the context of the amendment, the Minister of State might clarify how employees will fare in terms of the minimum wage.

While the amendment is well motivated and the manner in which Senator Terry has phrased it is understandable, I have considered this section deeply and have difficulty in supporting the amendment. The issues involved go far beyond what is contained in the amendment. One of the objectives of successive Governments has been to bring the percentage of people with disabilities in the workplace up to3%. The only areas where that has been achieved are in parts of the public service, which is a harsh reality that reflects the way the world is. In my previous life, wearing my ICTU hat, I pushed and tried through various national agreements to make the employment of people with disabilities easier. I met with great resistance from employers, not in the sense of employers being anti-people with disabilities but in terms of how they would operate in the workplace.

I ask Senator Terry to give consideration to this point. While the section reflects the principle of equal pay for equal work, the amendment turns that on its head. The harsh reality of life means that in a situation where two workers were being paid the same amount and one was only doing three quarters of the work the other person was, notwithstanding that the person doing the three quarters work was a person with disability, the other person could put in a claim for equal pay. In other words, the worker doing more work could seek an additional 33% pay and would have a perfectly stateable case in that situation. Therefore, much as I dislike the thinking behind the fact that employers could make such a rule, if we accept this amendment, we would effectively slam the door on employers appointing people with disability.

This is the reality I have experienced in negotiations. While employers have said they have nothing against people with disabilities and that they would try to work them into their systems, and some have, that has always been on the basis of equal pay for equal work, or some such arrangement. Despite my criticisms of employers over the years, on this issue they tend to give the balance towards people with disabilities and to make adjustments for them in that sense.

I completely understand Senator Terry's point. I feel equally uncomfortable that the Bill states that it is lawful to do this. However, I support the Bill in this regard because there is a better chance of more people with disabilities being brought into the workforce under this system than if it were not in place. That is the reality I have faced all along, although I cannot disagree with any of the points in the argument made by Senator Terry, or the clear motivation that drives her to put down the amendment, with which I have sympathy and fully identify.

Nonetheless, in practical terms, it is impossible to have the concept of equal pay for equal work and then to have factors in work situations which go against that, even if this favours some employees. The concept of equal pay for equal work means exactly that: if there is equal pay for equal work, the balance lies with all employees but, if there is not, once one side or another is favoured, any number of cases for demands for equal pay for other people will be opened up, and nobody will make concessions on grounds of disability. It is a complex and complicated situation and one with which we must be careful.

While Senator O'Toole makes a good argument, I will support Senator Terry's amendment because I have not found that disabled people are not employed because they do less work but because of residual resistance to employing people with disabilities. There is huge resistance to employing such people, and Senator O'Toole is right in that regard. I do not know that it would improve the situation by making it possible to employ those with disabilities at a lower rate of pay. Senator Terry gave the example of two able-bodied employees doing the same sort of work, with one getting through 50% more work than the other in the time allowed. I support the Senator's amendment.

On Senator Tuffy's question on the minimum pay legislation, an amendment to that effect will be discussed next. We will discuss the issue then. I do not know why the amendments are not being taken together.

I have listened carefully to what has been said and I agree with Senator O'Toole, who is speaking from a lot of experience, although I am not saying that other Senators are not doing so. We do not want to give the impression that the section is being included to disadvantage people with disabilities or to allow them to be treated less favourably. The section seeks to assist people with disabilities to be given employment and to encourage employers to take them on. The effect of Senator Terry's proposal would be to remove what is intended as an enabling provision from the Act of 1998 and replace it with an inflexible and dogmatic approach. Disability is a discriminatory ground. In addition, employers must accommodate the needs of people with disabilities in the workplace. Furthermore, where an employee would still be unable to undertake employment, the provision allows an arrangement which takes account of these circumstances.

The amendment to section 35(1) of the Act of 1998, which I brought forward in the Bill, further clarifies that a different rate of remuneration may be paid only where it is determined on the grounds of a lesser output of work in a particular period. I take Senator Terry's point that some people are better workers than others. I imagine that when the Equality Authority considers such cases, it will find there are many occupations where one could determine the output of the workforce as a whole but it would be virtually impossible to determine the output of particular employees, and obviously it will not apply in such cases. In the case of certain occupations it is perfectly easy to determine how much or how little each person does.

As Senator O'Toole said, and as I said on the previous occasion, this legislation seeks to encourage employers to take on people with disabilities. I want that message to go out loud and clear. We are not getting at people with disabilities. We are not bringing in provisions which allow employers to treat them as second or third class citizens. We are including an enabling provision which will in some cases encourage particular categories of employers to take on people with disabilities. This is precisely why the provision is being included and why I cannot accept Senator Terry's amendment, which will leave us with perfectly just law theoretically but, in practical terms, will stop people with disabilities getting employment where they might otherwise get it. I know this from my personal negotiations with some employers specifically on this issue and the wider disabilities legislation which is being introduced shortly.

I disagree with the Minister of State who is encouraging employers to get cheap labour. If people with a disabilities are capable of doing the job, they should be paid for it.

They will be.

No. The Minister is leaving it open to employers to give people with disabilities a lower rate of pay.

Only where they are measurably doing less.

It is unacceptable. Senator O'Toole and others have said how few people with disabilities are in the workplace.

There would be fewer if I accepted the Senator's amendment.

There are far more able bodied people working who have a low rate of work and get equal pay, and we can do nothing about that. It is up to managers to ensure their workers produce as much as they can. To make this distinction is totally unacceptable. Organisations dealing with people with disabilities totally oppose this measure. While I understand what the Minister is saying, I totally object to it. It will not help people with disabilities. If the Minister of State is saying that employers will take on more people with disabilities because they have to pay them less as they produce less, it is not the type of equality people with disabilities want.

Senator Quinn is a very good employer of people with disabilities. I doubt very much if he pays them less than other members of his staff. If the legislation is passed, I doubt very much he will avail of the opportunity to pay people with disabilities less, which is what the Minister of State is providing for. As it is completely unacceptable, I ask him to take time to review the issue and reconsider his position.

The Government and I have reviewed carefully the matter and I have no notion of accepting the Senator's amendment. The proposal is off the wall. We do not live in a perfect world. The Senator is saying this is the equality we want. We will never have perfect equality, but I would prefer to have a type of equality which encourages employers to bring in more people with disabilities rather than give them the equality of getting social welfare benefits rather than gainful employment. It is absolutely wrong to say the disability organisations as a whole oppose this measure. They do not. I am in constant consultation with the disability organisations. We are preparing disability legislation and were speaking with such organisations as recently as yesterday. The majority of the disability organisations to which I have spoken see the sense in the amendment, which they agree will help, as I do. This is why I propose to leave the section as it is.

Amendment, by leave, withdrawn.
Section 24 agreed to.
NEW SECTION.

I move amendment No. 13:

In page 17, before section 25, to insert the following new section:

25.—Section 35 of the Act of 1998 is amended by inserting the following new subsection:

‘(7) A different rate of remuneration paid pursuant to subsection (1) shall not be below the level of the National Minimum Wage in force at that time.'".

Perhaps I was anticipating the Minister of State's answer and expecting he would not accept my previous amendment. That is why I tabled this amendment and believe the two amendments should not be discussed together. I am giving him another chance to recognise that people with disabilities deserve a fair rate of pay. I ask him to accept the amendment, which would ensure that people with disabilities will get nothing less than the minimum wage. This is the bottom line in regard to what is acceptable to them and which we have a duty to provide. I hope the Minister of State will accept the amendment.

I support Senator Terry's amendment because she is 100% correct. It would be disgraceful if the previous section were abused. It could be abused, as Senator Terry has pointed out, unless her current amendment is accepted. The previous section and her current amendment will provide protection. No one could accept from an employer anywhere a situation whereby people with disabilities were paid less than the minimum wage. In light of all that has been said about the minimum wage in all sorts of arguments and discussions, I appeal to the Minister of State to accept the amendment. It is an area in which Ireland has led the way in Europe. This would leave a gap which might be used or abused by unscrupulous people. However, if the Minister of State accepts Senator Terry's amendment, he will get the best of both worlds. He will get the adjustment allowed under the previous section and he will get a protection which will be provided by the minimum wage. It is a worthwhile and useful amendment which gives added value to the legislation in terms of the protection of people with disabilities. I appeal to the Minister to accept Senator Terry's amendment.

The Government introduced the concept of the minimum wage, therefore we do not wish to introduce legislation which would enable employers or anyone else to deviate from it. It was not intended that the provision would be used by employers to pay anyone less than the minimum wage.

I thank Senator Terry for bringing this matter to our attention and I will consider the amendment sympathetically between now and Report Stage. We may come back with something the same or a slight variation but I accept the principle behind the amendment.

Amendment, by leave, withdrawn.
SECTION 25.

I move amendment No. 14:

In page 17, line 35, after "by" to insert "inserting in subsection (1)(b) after ‘it takes action’ the words ‘on the religion ground’ and”.

Section 37 was the most divisive section of the Employment Equality Act 1998. It was appalling that it allowed discrimination in certain instances, after a high profile discussion in which the Church of Ireland took a leading role, egged on by the Catholic Church. The Bill was introduced by the rainbow Government and passed by the coalition Government following the election in 1997. Despite the objections we raised, section 37 of the original Bill was passed because it was felt that a person running a Catholic school was entitled to ensure that its Catholic ethos would be protected. The Equal Status Bill was being debated at the same time and there was much discussion of this in both cases.

I lost the argument because of support for the ethos of religious institutions. I did not oppose that but thought it could be done better in a different way. I am now trying to ensure that if legal discrimination takes place in religious institutions that would be illegal anywhere else, it must be done solely on the religious ground. My instinct is to get rid of section 37 of the previous Act but there is no chance of that so this amendment tries to confine discrimination to the religious ground. Last night "Prime Time" dealt with religion in education and this issue arose. This amendment would ensure action would only occur on the religious ground. It still protects the religious values and ethos and does not allow anyone to undermine it.

The amendment rules out, however, any attempt to describe spurious activity as discrimination in favour of the ethos of the institution. It tightens up the Bill. I would prefer to get rid of the section but we have decided that such discrimination should be allowed and I am trying to keep it within the spirit of the Bill and the previous Act by confining it to the religious ground.

I support Senator O'Toole on this, as I did when the Employment Equality Bill was going through the Houses. We both argued it would be unconstitutional and when it was brought before the courts, it was found to be so, which pleased us, but not on the grounds we thought. That is what happens as a result of the separation of the Judiciary from the Executive. This is important because the issue applies to schools but it also could be applied to some hospitals and we should make this as clear as possible. That is what the Minister of State would want.

Section 37(1) was inserted to permit discrimination by religious bodies in certain circumstances. These provisions are not affected by the provisions of the equality directives, the transposition of which is the purpose of this legislation. Article 4(1) of the framework employment directive narrows the provisions in section 37(1).

I understand what Senator O'Toole is saying but such discrimination is behaviour-related and not ground-related. If we look back to the Employment Equality Act 1998, section 37(1)(b) states that a religious education or medical institution is protected if it discriminates by taking action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution. Senator O'Toole wants to restrict action taken on religious grounds only. I will have a look at his amendment but I do not see how it adds anything to the Bill. If a person gets rid of an employee or refuses someone a job because he proposes to use alcohol or cook pork when he is seeking employment in a Muslim establishment, the decision is taken to protect the religious ethos of the establishment and it is based on his conduct. If, as Senator O'Toole suggests, this is included in the section as discrimination on the religious grounds, I do not see how it adds to the Bill. If he can explain that, I will consider his amendment.

I understand the Minister of State's point and I agree with much of what he said. I disagree fundamentally with this section but I must accept the democratic decision of the people. If a teacher in a school of particular religion tries to inculcate the students with a different set of religious values, that is utterly unacceptable and should be a sackable offence, a view I have always held because it is on the religious ground.

I will use the Minister of State's example. If a teacher in a school with an anti-alcohol ethos was discovered to have had a glass of wine at Christmas in the comfort of his own home, without trying to undermine any ethos, and some fundamentalist felt he should not have done that and sacked him, it would be completely wrong. Extrapolating from that, there could be other reasons. If section 37 is used, it should be only on grounds of religion. At present, the Bill does not prevent a person from sacking an employee for other, non-religious grounds if they are protecting the ethos of the school.

The Minister of State mentioned behaviour. I accept it can be vague and people can interpret it differently, but it is also the case that in this legislation, the Equal Status Act and the Education Act there is no definition of "ethos". I made the case at the time that if there were 4,000 Catholic educational institutions in this State, effectively, we could have some 4,000 of the equivalent of the plural of ethos — my Greek is weak. This would be defined simply by the boards of management of the schools. I always felt that was wrong but that was another argument I lost here. I have to accept that but I am simply referring to it. If behaviour and ethos are vaguely defined, we need to tighten up the Bill to some extent. I accept the religion argument, to which I never objected. Parents have an entitlement to decide what type of school their children attend, whether it is denominational, non-denominational, multi-denominational or inter-denominational or whatever. That has to be respected by employees and it would be unacceptable for any employee, be he or she a teacher or any other employee, to undermine it.

This proposal does not take from what the Minister of State is trying to achieve. I will be pleased if he will examine it if he is unsure about it. I do not want to insert any provision in the Bill about which he is unsure. I know what it is like to be on the other side of the interpretation of legislation when defending people or boards. We should get the Bill right. The inclusion of this amendment will mean that if employers act under the terms of section 37 of the 1998 Act, it should be on the religion ground. That does not stop them from acting on other grounds for various other reasons. There is a raft of legislation dealing with industrial relations, employer and employee relations and dismissals of all sorts. Such legislation exists and this proposal would not impact in any way on it. Some people will pick the easiest way to do something and that is wrong; they should be confined to acting in what is the correct way under the law.

In regard to the example the Senator gave about a teacher having a few scoops privately, I cannot envisage how that would undermine the religious ethos of the institution in which he or she is working provided he or she does it privately in his or her own time.

That is exactly my point. I agree with the Minister of State.

I do not believe it would. The authority concerned would not be justified in sacking a teacher in those circumstances because section 37(1)(b) specifically states that the action which is protected must be reasonably necessary to prevent an employee from undermining the religious ethos of the institution. As the saying goes, “saying it don't make it so”.

I understand what the Senator is getting at. He is trying to provide for a situation where people can only use such a defence in circumstances where the conduct legitimately undermines the religious ethos of the institution. In other words, he does not want people to be able to say that whatever about the religious ethos of the institution, we are Muslims, this guy is known to be a raving drunkard in his own private life and that is a good reason for getting rid of him. I understand what the Senator is trying to do; he is trying to tighten up the legislation.

With due respect to the wording of the amendment he put forward, if I insert in subsection (1)(b) what is proposed, namely, it takes action on the religion ground which is necessary to prevent an employee from undermining the religious ethos of the institution, I do not believe that wording would improve it. However, I take the point the Senator is making. We do not want the legislation drafted in such a way that would allow people to come up with facile excuses. I do not believe the legislation is so drafted. It has stood the test of time since 1998 — we are talking about legislation that has been in operation for six years. I will give some thought to what the Senator said. I will discuss it with my officials and if we are of the view that the section needs to be tightened up, we will be willing to consider doing so.

I cannot ask for any more from the Minister of State. I wish to draw out the example a little further because I believe the Minister of State is correct. We used the example of a person drinking in his or her private time and the example could also be a teacher having a child outside marriage. What the Minister of State said in response is the key to my motivation for tabling this amendment. He said it could be considered on the religion ground, on which I agree with him. However, there is a problem in that because if we do not insert on the religion ground, we are left with the possibility of the taking of an action which is considered reasonably necessary.

I could mount a telling and impactful argument about the evils of drink or sex outside marriage and line up all the elders of a fundamental religion I am pursuing and say that the thoughts of having anybody who did this or that anywhere near our institution would completely undermine its ethos. Those elders could mount a strong argument and it would not be based on the religion ground, if the Minister of State knows what I mean. It would be a case of trying to use the burden of proof of reasonably necessary. Those concerned could well argue that such action was reasonably necessary if emphasis is not put on the religion ground. I accept that the Minister of State and his officials have given this fair thought and that is all I ask. I am not trying to create a problem or to pull a fast one — either it works or it does not. We should simply insert that provision. The Minister of State might reconsider it on Report Stage and I will go along with whatever he decides at that point.

Amendment, by leave, withdrawn.

Amendment No. 16 is related to amendment No. 15 and they may be discussed together by agreement.

I move amendment No. 15:

In page 17, line 39, to delete "ground" and substitute "marital status, family status, disability, sexual orientation, age or membership of the traveller community grounds".

This amendment seeks to make doubly sure that we do not simply use the gender ground in regard to such circumstances. I will deal with amendment No. 16 first. It is a belt and braces type amendment. It proposes inserting the words "legitimate" and "justified" to provide that the characteristic referred to constitutes a genuine, legitimate, justified and determining occupational requirement. It seeks to raise the burden of proof to make doubly sure in regard to the provision.

In terms of the characteristic related to the discriminatory grounds, that should extend to all the grounds, not only the gender ground. There is no major case to provide that it should be simply restricted to the gender ground. I ask the Minister of State to consider that point.

The other amendment simply provides for inserting additional words to give extra comfort on the issue. I do not believe it should cause the Minister of State too much difficulty. He might argue that it is tautologous and repetitive but the additional words proposed mean something different — they are quite simple words. The first of the two amendments is the fundamental one, which the Minister of State might have more difficulty accepting. I would like to hear his views on them.

In regard to amendment No. 16, we are transposing the terminology directly from the directive. Therefore, I do not consider there is any reason to accept that amendment. We have been asked to transpose the directive, and we can go further, but, in reality, I do not believe it is going any further.

This section amends section 37 of the 1998 Act to take account of the framework directive in respect of permitted differences of treatment by reference to a characteristic which constitutes a genuine and determining occupational requirement and where the objective is legitimate and the requirement proportionate. Amendment No. 15 would depart from the provisions of the directive by excluding the grounds listed by the Senator from the scope of the provision. The Senator may note that the gender ground is already excluded under section 16. If we are to exclude all these other grounds, what would the section mean? We have already taken out the gender ground and if we were to take out all the other grounds, the section would be rendered meaningless.

I am trying to make sure that the section fully reflects what is in the directive. I listened to what the Minister of State said and I will go back and read it. I thought my amendments more fully and comprehensively reflected what is in the directive. I accept what he said regarding the additional two qualifying words in the second amendment, that because they are not in the directive they may not be necessary. That is an argument for and against that; it depends on how we do this. These amendments may not deal with what is the most important issue in the world, but I believe my amendment dealing with the grounds excluded is necessary to reflect what is in the directive. Is the Minister of State saying that the directive is fully reflected in the current wording of the section? That is what I would like to hear.

It is, both from the point of view of what is allowed and what is excluded.

Are the amendments being pressed?

I will not press them on that basis.

Amendment, by leave, withdrawn.
Amendment No. 16 not moved.
Section 25 agreed to.
NEW SECTIONS.
Government amendment No. 17:
In page 18, before section 26, to insert the following new section:
26.—Section 44 (ordinary members of Authority) Act of 1998 is amended by substituting the following subsection for subsection (4):
‘(4) Each ordinary member of the Authority shall be paid, out of moneys provided by the Oireachtas, such remuneration (if any) and allowances and expenses as the Minister, with the consent of the Minister for Finance, may sanction.'"

This amendment to section 44 of the Act of 1998 is proposed to enable the Minister for Justice, Equality and Law Reform, with the consent of the Minister for Finance, to remunerate the board of the Equality Authority. In recent years, social-type boards such as the authority have been brought within the sphere of such payments, and I propose to include the Equality Authority in this category.

Amendment agreed to.
Government amendment No. 18:
In page 18, before section 26, to insert the following new section:
27.—Section 67 (assistance by Authority in connection with certain references) is amended by adding the following subsections:
‘(5) The relationship between a solicitor employed by the Authority or any barrister retained by him or her and a person requesting assistance under this section shall be the same as the relationship between a solicitor or barrister and a client who is not such a person.
(6) Subsection (5) is without prejudice to the rights and responsibilities of the Authority and the obligations arising out of the relationship between the Authority and the solicitors employed by it.
(7) For the avoidance of doubt, it is declared that sections 59 (prohibition of solicitor acting as agent for unqualified person) and 64 (bodies corporate) of the Solicitors Act 1954 do not apply in relation to the provision by a solicitor employed by the Authority of assistance under this section.
(8) In this section—
"person requesting assistance" includes a person to whom assistance is being, or has been, provided under this section;
"relationship" includes rights and privileges arising from the relationship.'.'

This amendment inserts additional provisions in section 67 of the Act of 1998 to further clarify matters relating to the Equality Authority's role in providing assistance to persons in taking proceedings under the Act. The principal new provision is contained in the new subsection (5). This makes explicit that the relationship between a solicitor employed by the authority or a barrister retained by such a solicitor and a person requesting assistance under this section is the normal solicitor-client or barrister-client relationship. This is a necessary safeguard and will remove any doubt about issues of confidentiality etc.

The provision is balanced in subsection (6) with the clarification that the normal rights and responsibilities integral to the relationship between the authority and the solicitors employed by it is not prejudiced. Subsection (7) makes a further clarification to the section to remove any doubt as to how certain provisions of the Solicitors Act 1954 are to be applied in respect of solicitors employed by the authority and providing assistance to persons under this section. Section 59 of the Solicitors Act prohibits a solicitor acting as an agent for an unqualified person, while section 64 makes a similar prohibition in the case of bodies corporate. Subsection (8) defines key terms used in these provisions. In a nutshell, there is provision whereby the authority can get a solicitor or barrister to represent somebody in a case in those circumstances. The relationship between the client being helped and the barrister or solicitor employed by the authority will be the normal solicitor-client relationship. All the rules that apply to the average solicitor-client relationship will apply to that relationship.

Amendment agreed to.

I move amendment No. 19:

In page 18, before section 26, to insert the following new section:

26.—Section 69 of the Act of 1998 is amended by the addition of the following subsection after subsection (6)—

‘(6A) Where an employer fails to have an equality action plan (irrespective of whether he or she had been required pursuant to this section to have such a plan) it shall be presumed until the contrary is shown in any proceedings under this Act that the employer has failed to take such steps as are reasonable to protect the employees of such an employer from discrimination."'.

This amendment requires the employer to take positive action to ensure there is no discrimination against an employee on particular grounds. On Second Stage, I mentioned that we need to consider protecting employees against racism in the workplace, particularly because we are employing more non-nationals under different schemes and by way of work permits, for example. These employees need to be protected, possibly in the same way in which we have tried to protect employees or potential employees with disabilities. The amendment obviously applies to grounds other than racism.

I am interested in hearing the Minister of State's response. I am tabling this amendment as a suggestion and I am not really sure it would be the correct way to go forward. I realise it might cause problems or put a lot of pressure on the employer. However, if as a solicitor, I were representing any side of a case involving somebody who was the victim of racism in the workplace, I would always inquire into the code of practice in the place of work and into what steps were taken to avoid racism therein. This arises in some cases, such as the one involving CIE, and therefore there is a need to ensure racism and other kinds of discrimination do not occur. Everybody should know where he stands and there should be no grey area into which people could slip. This is the thinking behind my amendment.

I mentioned on Second Stage that the Equality Authority stated complaints of racism are the fourth most frequent type of complaint it receives. Maybe more proactive provision needs to be included in the legislation, similar to that dealing with disability. This might be one way of doing it or maybe there are other ways — I do not know. I would like to hear the Minster of State's response to this. Has he any plans in this regard?

The purpose of Part VI of the Employment Equality Act 1998 is to provide guidance to employers, particularly large enterprises, in taking a proactive approach to implementing equality legislation in the workplace. Section 69 gives the Equality Authority particular powers, at its discretion, to invite a particular business or business group or sector to carry out an equality review or to prepare and implement an equality action plan.

The Equality Authority may, if it thinks it appropriate, carry out an equality review and prepare an equality action plan regarding large employers — defined as those who employ more than 50 employees — a particular business or sector. The authority has specific enforcement powers with respect to such equality reviews and action plans. The directives do not require the imposition of a duty on employers to prepare equality action plans. There is no intention in section 69 to coerce all employers to prepare equality action plans. This amendment would appear to have such an effect, unfortunately. It would undercut any legitimate defence an employer might have in answering employment discrimination charges before the Equality Tribunal.

Is the amendment being pressed?

I will not press it but I would like the Minister to consider the point I have raised in order that we might have some way of encouraging employers to have such measures in place to a greater degree than they are being encouraged to do so at present.

Amendment, by leave, withdrawn.
Section 26 agreed to.
SECTION 27.
Government amendment No. 20:
In page 19, paragraph (d), to delete lines 35 to 38 and substitute:
"(3) The Director may from time to time issue guidelines or guidance notes governing the carrying out of their duties by equality officers and equality mediation officers.".

This is a minor technical amendment to the new provision in section 27(d) of the Bill, inserting a new section 75(3). The intention in this provision is to enable the director of the Equality Tribunal to issue appropriate guidelines or guidance notes to ensure that redress in equality cases taken before it is met with an efficient and fair response. It is considered that the provision, as drafted, is overly broad and more akin to the role of the Equality Authority, and it should be more clearly focused to apply to the areas of responsibility dealt with by equality officers and equality mediation officers.

Amendment agreed to.
Question proposed: "That section 27, as amended, stand part of the Bill."

The director is given certain responsibilities regarding the recruitment of some members of staff and promotions. In view of the fact that the Government is setting up the new public service appointments commission, the Bill is giving considerable power to the director. County managers set up interview boards themselves as part of the drive for better local government and this caused deep divisions within local authorities. Therefore, the powers concerning the promotion and recruitment of staff should be given, in this case, to the public service appointments commission. The Minister of State should consider this in the Bill, especially because of what happened in the local authorities.

It was thought, when the legislation was being drafted and this office was being created, that it was better to give the director the power to recruit the staff in view of the fact that he or she would be best qualified to decide the calibre of employee required. It is a highly specific area. However, whatever staff are normally recruited by the director will be subject to the consent of the Minister for Finance. I understand what the Senator is saying, however, and I propose to discuss that with the Minster for Finance. I cannot say if there will be any change at this stage, but I will convey the Senator's concerns to the Minister and to my colleague in the Department of Justice, Equality and Law Reform.

I thank the Minister of State. This could be embarrassing in the future if an equality matter were raised.

Question put and agreed to.
Section 28 agreed to.
SECTION 29.

I move amendment No. 21:

In page 20, between lines 18 and 19, to insert the following new paragraph:

"(a) by the definition of subsection (2),”.

In this amendment we are deleting the provision that a discriminatory dismissal goes to the Labour Court and not the Equality Tribunal. There is a groundswell of opinion that the tribunal should have jurisdiction. I would like to hear the Minister of State's comments on that.

As Senator Tuffy has said, the amendment in her name removes jurisdiction from discriminatory dismissal cases from the Labour Court. I deduce that she wants it to remain with the Equality Tribunal. The redress provided for in section 77 of the Employment Equality Act 1998 places such jurisdiction with the Labour Court for the good reason that this body has extensive statutory powers and long experience in dealing with unfair dismissal cases. In terms of equality legislation, this jurisdiction dates back to the Anti-Discrimination (Pay) Act 1974 and the Employment Equality Act 1977. It is accepted by both sides of the social partnership that the Labour Court remains the proper forum for resolutions of cases of alleged unfair dismissal, on whatever ground.

Amendment, by leave, withdrawn.

I move amendment No. 22:

In page 20, between lines 18 and 19, to insert the following new paragraph:

"(b) by the insertion in subsection (3) after ‘Equal Treatment Directive’ of ‘or any other Directive referred to in the Title to the Equality Act 2004,’”.

The background to this Labour Party amendment is that EU law provides that where there is a breach of a directive, there must be a right to sue in the courts. That refers to the European Court of Justice ruling in the Marshallv. Southampton and South West Hampshire Area Health Authority “No. 2” case. Under the 1998 Act, this right was confined to gender cases as those alone were covered by the directive. As EU law has extended, the 1998 Act should be amended accordingly. If it were not, the Bill could be struck down as being contrary to EU law.

I do not think so. Under section 77(3) of the Employment Equality Act 1998 the option for a claimant in a general discrimination case to refer it to the Circuit Court is available, in order to allow access to an unlimited award of compensation. This is a requirement of the gender equal treatment directive, following the 1993 judgment of the European Court of Justice in the Marshall case. There is no requirement on non-gender grounds in either the framework employment directive or the race directive for access to unlimited awards. This amendment would allow access to the Circuit Court for all employment discrimination cases. In the event that the EU Council of Ministers had intended to make available equal levels of redress between gender and non-gender grounds, it was open to the Council to make such provisions in the directives. However, we are certain the Council did not provide for this. The directives provide that sanctions must be effective, proportionate and dissuasive. I am satisfied that the existing levels of award open to the Equality Tribunal and the Labour Court in gender and non-gender cases are sufficiently high to deter unscrupulous employers and to fully compensate employees who suffer the effects of discrimination in the workplace.

I understand what Senator Tuffy is saying. It looks somewhat lopsided that there is one rule for gender cases and a different one for non-gender cases. It may well be that a directive in the future may force us to make similar provisions for both. If that happens we will but, as we currently understand European law, there is no such requirement.

Amendment, by leave, withdrawn.
Section 29 agreed to.
Sections 30 to 42, inclusive, agreed to.
NEW SECTION.

I move amendment No. 23:

In page 28, before section 43, to insert the following new section:

"43—The Act of 2000 is amended by inserting the following section after section 2:

‘Irish Language.

2A. The Minister shall do all that is reasonable possible to ensure that during the Irish Presidency of the European Union, the Irish Language is recognised as an official language of the European Union.' "

This amendment arises from concern for the equality of the Irish language. I am critical of the failure of the Taoiseach and the Minister for Community, Rural and Gaeltacht Affairs, Deputy Ó Cuív, to have Irish recognised as an official language within the EU. It will be a long time before we can expect such an opportunity to present itself again.

As I said on Second Stage, our MEPs in Europe are currently not in a position to stand up and speak in Irish if they so wish. This denies those MEPs who wish to and are capable of speaking in Irish a great opportunity to do so. It is an equality issue for many people in Ireland who see and use Irish as their first language. For those of us who would aspire to have it officially recognised, it is an equality issue. With the entry of the accession states to the EU there will be a further eight or nine languages. It is a shame that Irish is not formally recognised as an official EU language. I am asking the Minister of State to accept this amendment, if he can, and to do everything possible during the EU Presidency to ensure that Irish is recognised as an official language within the EU.

The two official languages of the State are set down in Article 8 of the Constitution as Irish and English. The Constitutional Review Group, which reported in 1996 did not advocate the addition of any further languages. Irish has the status of a treaty language in the European Union. This derives from the fact that the treaties are in Irish. In the treaties, Irish is listed as one of the languages in which the text is authentic. This means that each successive treaty is published in Irish as well as in the 11 other languages — with the text in Irish being equally authentic and having equal status to those in all the other official languages.

It has been the Government's consistent approach to take any appropriate opportunity to enhance the standing of Irish in the EU. It has done so in several respects, including the following: The Treaty of Amsterdam 1996 confirmed the right of citizens of the Union to correspond with any of the institutions in any of the treaty languages; and a declaration adopted in conjunction with the Treaty of Nice 2001 calls for a response to any such correspondence to be made within a reasonable period.

The Irish representatives at the European Convention which negotiated a draft constitutional treaty ensured that these rights will be maintained. Additionally, at our request, an Irish language version of the draft constitutional treaty agreed at the European Convention was also prepared. Lingua, the Union's programme for the promotion of language teaching and learning, recognises the Irish language for its projects. Most recently the Government has taken steps to enhance the standing of the Irish language in the context of the reform of the staff regulations for EU officials. The Government remains committed to its policy of monitoring developments with a view to availing itself of any appropriate opportunity that may arise to enhance the status of Irish as regards the EU. Discussions between the Departments of Foreign Affairs and Community, Rural and Gaeltacht Affairs to analyse the options available to us are ongoing. A working group has been established to analyse what can be achieved on this issue and the possibilities that exist to make progress.

I understand the first meeting of the working group has already taken place. I hope these discussions will identify additional opportunities to enhance the status of the Irish language in the EU within a reasonable and practicable timeframe. With the working group already in place, it would not be appropriate to accept the amendment. My advice is that the proposed amendment is not appropriate to this Bill nor is the Minister for Justice, Equality and Law Reform the relevant Minister in this regard. For those reasons, and not because I disagree with any of the sentiments expressed, I am unable to accept the amendment.

I thank the Minister of State for his response. Why should Ireland be the only sovereign State in the EU not to have its first language recognised? That is the basis of my argument. The Minister of State said this is not the appropriate legislation in which to include this provision. I think it is as this is an equality issue. Many people who believe strongly in their first language feel it should be given the recognition it deserves. I accept the Minister's response at this stage and will withdraw the amendment although I expect it will arise again in the other House.

Amendment, by leave, withdrawn.
Section 43 agreed to.
SECTION 44.

I move amendment No. 24:

In page 29, lines 10 and 11, to delete "(other than a separate and self-contained part)".

This amendment seeks the deletion of the words "other than a separate and self-contained part". I wonder if that provision has been thought through. What does it mean? Does it, for example, relate to a granny flat or to a granny flat with a separate entrance? An extension to one's home becomes part of the home. I do not understand the reason for this provision. Perhaps, it is political correctness gone mad. The Minister is being too particular in this regard. This provision could lead to all sorts of problems.

If accommodation affects the person in his or her home, it does not matter whether it is self-contained. What is a self-contained part of the House? Is it a granny flat, an extension or one's shed? What is the purpose of this provision?

The purpose of the provision is to ensure the exclusion is as narrow as possible. Acceptance of the amendment would exclude from the provisions of the Equal Status Act 2000 the letting of separate or self-contained accommodation in the owner's home such as bed and breakfast accommodation or a self-contained apartment in a house.

As Members may be aware, the Equal Status Act 2000 includes an exemption for small premises occupied by a provider or a relative. The race directive does not provide for such an exemption. However, it provides, in Recital IV, that it is important, in the context of the access to and provision of goods and services, to respect the protection of private and family life and transactions carried out in that context. The protection of private and family life is a fundamental right covered by Article 8 of the European Convention on Human Rights. It is important that the right to non-discrimination be applied with due respect to the protection of private and family life.

The Government proposal is, therefore, to provide a very narrow exemption excluding the provision of accommodation by a person in a part other than a separate and self-contained part of the person's home where the provision of the accommodation affects the person's private life or that of any other person residing in the home. The aim of the provision is to protect the privacy of persons in accommodation sharing arrangements. It is not the intention to exclude from the Equal Status Act the letting of self-contained accommodation or bed and breakfast accommodation. To do so, would be contrary to the race directive.

The addition of the words "or in circumstances" appears to indicate that the section refers to the provision of any accommodation as long as it affects the person's private or family life and is not restricted to the home and not to the sharing of premises. As outlined above, the aim of the exemption is to protect the privacy of persons in accommodation sharing arrangements. It is not the intention to exclude from the Equal Status Act the letting of accommodation which is not part of the owner's home.

This amendment is not consistent with the race directive and, for that reason, I am unable to accept it.

I am not happy with the Minister of State's response. He gave the example of bed and breakfast accommodation. Such a service could be provided in a house that is not self-contained. I am aware of situations where bed and breakfast is provided in a room of a house with the person sharing the bathroom with others. Such accommodation would not be covered by this provision. Does this provision mean that an au pair living in a granny flat could not be discriminated against even though her accommodation affects the family life of the person residing in the home? This legislation makes life difficult for those providing accommodation in extra space in their homes. This section is problematic. Perhaps the Minister of State could rethink it.

Accommodation does not necessarily have to be provided in a separate and self-contained part of the House. A family with a granny flat or extension with a separate entrance, as opposed to a family whose home has no alterations, would be excluded from the protection provided in this legislation.

The advice is that omission of this provision could result in our being found in contravention of the race directive which would cause grave difficulties. The legal section of the EU has made clear that there is very little room for discretion in this matter. I accept Senator Tuffy's point about the difficulty in interpreting what is meant by "a separate and self-contained part" within a family home or any type of house. There are several examples of this in revenue and social welfare law. An example is the person residing in a room or granny flat adjacent to the home of his or her son or daughter's house who applies for free electricity upon reaching the age of 66 years. The Department of Social and Family Affairs does not encounter any great difficulty in determining whether such person is occupying a separate dwelling. A separate ESB supply is not in itself conclusive.

While I recognise the provision could give rise to some difficulties of interpretation, acceptance of the amendment would result in our being in contravention of the race directive and, therefore, I must ensure it remains in the Bill. There are many examples of that terminology in revenue and social welfare law which make quite clear what is intended and which give sufficient guidelines to determine whether accommodation is self-contained or separate.

I will withdraw the amendment and ask that the Minister of State look at it again.

Amendment, by leave, withdrawn.

I move amendment No. 25:

In page 29, line 11, after "home," to insert "or in the circumstances".

The Minister responded to this amendment earlier. I am not sure its intention is as the Minister perceives it. Acceptance of the amendment would result in a better phrasing of the sentence. It is not our intention that the provision would apply outside the home. Our amendment tries to protect the private or family life of the owner. The Minister of State indicated that, according to the EU, this is to be protected. That is the purpose of the amendment.

If what the Senator is proposing was accepted, the new section 6 would read:

(b) in subsection (2), by substituting the following paragraph for paragraph (d):

"(d) the provision of accommodation by a person in a part of the person's home or in circumstances where the provision of the accommodation affects the person's private or family life or that of any other person residing in the home, or”.

Instead of creating the dual requirement, the amendment, as drafted, would create an either-or requirement. That would not be acceptable.

Amendment, by leave, withdrawn.
Section 44 agreed to.
SECTION 45.

I move amendment No. 26:

In page 29, lines 25 to 31, to delete all words from and including "she—" in line 25 down to and including "grants" in line 31 and substitute the following:

"she requires persons who are not EU nationals or refugees to fulfil reasonable requirements in respect of length of residency in the State".

This amendment means that the practice of continuing to have non-nationals discriminated against regarding third level grants will remain in place. No one wants to try to arrive at a situation where people from all over the world flood the country and apply for grants to attend third level institutions. However, we could take into account the residency of non-nationals in this country. That is what the amendment suggests.

I am grateful to FLAC for drawing my attention to a ruling by the equality tribunal on 28 May 2003. A case was brought by FLAC on behalf of two complainants, both of whom were permanently resident in Ireland together with their families and had been here for a considerable number of years. The equality officer's decision stated:

Clause 4.4 of the Maintenance Grant scheme for Students states that candidates must hold EU nationality or have official refugee status in order to qualify for a grant which, in my opinion, is clearly contrary to the Equal Status Act's prohibition of discrimination based on nationality . . . I consider that a continuing discriminatory rule still exists and accordingly in the interests of preventing future unlawful discrimination, I would suggest that clause 4.4 be annulled completely rather than simply being disapplied as the need arises. I would also recommend that the Department, in designing grant schemes in future should take full account of the provisions of the Equal Status Act 2000.

It is disappointing that no account has been taken of the equality officer's recommendation that the grant schemes be amended to make them non-discriminatory. The Government has instead chosen to approach the matter by amending the Equal Status Act to allow the discrimination to continue. While I understand that there could be legitimate concerns about a potential strain on the grant schemes caused by people coming to this country for the specific purpose of availing of education, the imposition of a blanket nationality clause is both disproportionate and discriminatory. As I have suggested, alternative restrictions such as residency requirements could adequately deal with any potential abuse.

I ask the Minister of State to consider this matter carefully because the provision will not apply to a huge number of people. As the equality officer stated, it would be better not to have this discrimination at all rather than applying it on a once-off case basis whenever such cases arise.

Section 45 provides that the Minister for Education and Science does not discriminate where he or she restricts the making of higher education grants to EU nationals or provides for the payment of grants at different rates as between nationals and others. There is no reason that the State, in a situation of finite resources, should subsidise by way of grants attendance at third level courses by non-EU nationals to the same extent as it subsidises Irish and other EU citizens. The Equal Status Act 2000 already provides for different treatments in terms of charging fees for third level education between EU nationals and others. As such, the same requirements should also apply to the provision of grants. No other member state has such a wide system of student support and it was considered that paying grants to all-comers could place intolerable strains on the student support system and might act as an incentive for non-EU nationals to come to the State.

A refugee is a person who has been granted refugee status here. Such a person is entitled to the same rights of education, health and housing services as Irish citizens, including third level grants. It is open to persons who are not EU nationals and who have been resident in the State for some time — I will explain the rules in this regard if the Senator desires — to apply for naturalisation and, if granted, who would meet the nationality criteria for grants. Under Irish citizenship law, there is no exclusion from Irish citizenship for persons who hold citizenship of another state. Thus, for example, those who apply for naturalisation are not required to renounce any other citizenship they may hold.

The effect of Senator Henry's amendment would be to prohibit the Minister for Education and Science from restricting grants to EU nationals or from paying grants at different rates as between EU nationals and others. As matters stand, the Government is not disposed to accept the amendment.

I am disappointed because I would have hoped the residency requirements could have taken account of that. After all, a person's family may be paying plenty in taxes to the State. I accept that naturalisation is a possibility for people. However, those I know who are involved in pursuing this avenue will be mature students by the time they apply for grants because the naturalisation process takes so long to complete. In view of the fact that I suggest that residency should be an important factor, will the Minister of State reconsider the position before Report Stage?

I will do so.

I support Senator Henry in terms of what she is asking the Minister of State to do. I understand his explanation that we must differentiate and we already do so because we charge much higher fees to overseas students. It goes without saying that the process could not be open-ended. However, Senator Henry is correct. My county council allows people with certain residency requirements to go on the housing list. These people are still discriminated against but they are at least allowed to apply and, in due course, they will have the opportunity of getting a local authority house. There is a need for something similar in respect of third level grants. If we allow people to stay here who do not necessarily apply for Irish citizenship, we should permit them to take up education and training. We should encourage them to do so because it would allow them to participate in our economy to the best of their ability. The Government should consider this matter and Senator Henry has given an indication of the way forward in that regard.

I would be grateful if the Minister of State would consider the position. These cases tend to crop up from time to time in awkward circumstances. For example, I dealt with one such case where the mother was an Irish national living here while the father was a non-national living abroad. He was sending money from abroad to pay the fees of four children. The fees charged to non-nationals are huge. A disruption occurred in the country where the father of these children was working and there was no possibility of sending any money at all out of it. The institution involved looked kindly on the plight of the last two children who were still in college in view of the fact that such a huge amount of money had to be paid.

Residency could be looked at as an important factor and I am grateful for the Minister of State's commitment to consider the position. I do not believe that there would be vast numbers of people involved. The people to whom I refer are paying tax and high fees in this country and the position could be the same with many others.

I understand that there are hardship cases. My understanding is that there is general unhappiness among third level students about the level of grants. The Government recognises that to some extent and wishes to concentrate resources on increasing the rate of the grants for those who are already entitled to them, namely Irish and EU nationals. However, I understand Senator Henry's point of view and I recognise that some of the people to whom she refers may have parents or relatives who are resident here and paying tax. I will examine the matter although I cannot promise anything.

Amendment, by leave, withdrawn.
Section 45 agreed to.
Section 46 agreed to.
SECTION 47.

Amendments Nos. 27 and 29 are related and may be discussed together, by agreement.

I move amendment No. 27:

In page 30, paragraph (a), lines 19 and 20, to delete “, or made otherwise by a public authority,”.

This is another area in which a small number of people seem to be excluded from the protection of the Equal Status Act. They are asylum seekers. They are lawfully in the State but they lack legal status within it. They are very vulnerable in dealing with public authorities as defined under the Bill which is very wide. I would be grateful if the Minister of State could see his way to taking into account the residency of people within the State given the great degree to which the legislation is open to interpretation. The term "public authority" is open to wide interpretation and community welfare officers and NGOs have consistently expressed concern about differential treatment of asylum seekers in the social welfare system. An example is the payment of reduced supplementary allowances.

The provisions of section 47 will create another area in which asylum seekers will be differentiated on the grounds of nationality and denied the full protection of the Equal Status Act 2000. It will open the system to significant discrimination by health boards and other agencies if this section is included in the Bill as suggested.

As I understand it, this section seeks to allow for direct provision, which is the system we operate, of accommodation and assistance to persons who have applied for asylum status and are awaiting decisions. The section does not permit discrimination in the provision of goods and services to anyone in the State on the basis of race or nationality. However, section 47 clarifies that any decision taken in the context of asylum and immigration applications is not open to challenge under the Equal Status Act 2000. This is implicit in the existing Act because permitting entry to and residence in the State is not a service within the meaning of the Act. Moreover, treating persons differently on the basis of their legal status — that is, distinguishing between those lawfully and unlawfully resident in the State and those seeking asylum and those granted it — does not constitute discrimination on the grounds of race or nationality.

I draw the attention of Senators to article 3 of the race directive which states that the directive does not cover differences of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third country nationals and stateless persons on the territory of member states and to any treatment which arises from the legal status of the third country nationals and stateless persons concerned. In the Equal Status Act, discrimination on grounds of nationality is outlawed which goes beyond the requirements of the race directive.

Senator Henry proposes the deletion of the phrase "or made otherwise by a public authority". I cannot accept the amendment as to do so would cast doubt on the exemption for non-statutory schemes governing non-nationals, including schemes of direct provision for asylum seekers. I do not accept Senator Henry's second proposal to remove from the definition of "public authority" paragraphs (i) and (j) referencing companies. To ensure the exclusion is all encompassing and as the definition of “public authority” used in the Bill is similar to the definition used in the Waste Management Act 1996 and the National Cultural Institutions Act 1997, I do not propose to accept the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 28:

In page 30, lines 34 and 35, to delete "under the Aliens Order 1946 (S R & O No. 395 of 1946)" and substitute "or deemed to have been appointed under the Immigration Act 2004".

The purpose of this amendment is obvious. We have just passed the Immigration Act 2004 and this Bill should reflect that fact.

I propose to accept the principle of this amendment. I will table an amendment exactly like or very similar to Senator Tuffy's on Report Stage. I thank the Senator for drawing this lacuna to our attention.

Amendment, by leave, withdrawn.
Amendment No. 29 not moved.
Section 47 agreed to.
Sections 48 to 58, inclusive, agreed to.
TITLE.

I move amendment No. 30:

In page 5, lines 24 and 25, to delete "IN PART".

This amendment is proposed because the 2001 regulations were repealed in their totality. To say that they were repealed in part is incorrect.

The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 give effect to Council Directive 97/80/EC on the burden of proof in cases of discrimination based on sex. The regulation applies to gender discrimination cases taken under the Employment Equality Act 1998 and the Maternity Protection Act 1994. The Maternity Protection (Amendment) Bill 2003 will revoke part of the regulations with respect to maternity discrimination cases and will re-enact the relevant provisions. The Equality Bill revokes and re-enacts the relevant provisions of the regulations with respect to the Employment Equality Act. The inclusion of the phrase "IN PART" is required while both Bills are before the Oireachtas.

Amendment, by leave, withdrawn.
Title agreed to.
Bill reported with amendment.

When is it proposed to take Report Stage?

It is proposed to take it next week, subject to the agreement of the Whips. I thank everyone for working exactly within the time allowed. In particular, I thank the Minister of State and his officials.

Report Stage ordered for Tuesday, 24 February 2004.
Sitting suspended at 2 p.m. and resumed at 2.30 p.m.