Equality Bill 2004 [Seanad Bill amended by the Dáil]: Report and Final Stages.

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question, "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For Senators' convenience, I have arranged for the printing and circulation of the amendments.

I propose to group the amendments as follows for the purpose of debate: subject matter of amendments Nos. 1, 40, 42 and 43; subject matter of amendments Nos. 2 to 13, inclusive; subject matter of amendments Nos. 14 to 28, inclusive, and amendment No. 41; and subject matter of amendments Nos. 29 to 39, inclusive.

I remind Senators the only matter they may discuss is the subject matter of the amendments made by the Dáil and they may contribute only once on each group of amendments.

Question proposed: "That the Bill be received for final consideration."

I thank Senators for their contributions to this legislation, which were well considered and constructive. I had the pleasure of bringing this Bill before the Seanad only five months ago. I was happy to accept substantive amendments in this House and I subsequently accepted further amendments in the Dáil, having reflected on a number of issues first raised by Senators. The Bill has been improved greatly by this process.

A total of 43 amendments were made in the Dáil to the Equality Bill 2004, 28 of which were in respect of Part 2 of the Bill amending the Employment Equality Act 1998. A number of these were minor, technical amendments or clarifications while others addressed more substantive issues. Some 11 of the amendments to the Employment Equality Act 1998 related to the transfer of jurisdiction of discriminatory dismissal cases from the Labour Court to the Equality Tribunal, which is now provided for in the Bill. Some 11 of the amendments were in respect of Part 3 of the Bill amending the Equal Status Act 2000. In addition, four amendments were in respect of Parts 1 and 4 of the Bill arising in relation to amendments to the Pensions Act 1990 under which occupational pension matters arising from the equality directives have been implemented.

Amendments Nos. 1, 40, 42 and 43 provide for amendments to the Pensions Act 1990. This is the case because the provisions of the race and framework employment directives, as they relate to occupational pensions, were implemented by amendments to the Pensions Act 1990, provided for under the Social Welfare (Miscellaneous Provisions) Act 2004. In a number of cases the amendments to the Pensions Act refer to provisions of the Employment Equality Act which are the subject of amendment under the Equality Bill 2004. In accordance with legislative procedure it was not possible in these cases to refer to the provisions in question at the time of passing of the Social Welfare Act. Accordingly, the necessary provision is being made in the Equality Bill under Part 4, section 66. The new section 66 amends the relevant references in sections 65, 81E, 81F, 81H, 81J and the Fourth Schedule of the Pensions Act 1990. Consequential amendments to the Long Title of the Bill and to section 1 of the Bill to take account of the new provisions were also necessary.

Amendments Nos. 2 to 28, inclusive, and 41 provided for a range of amendments to the Employment Equality Act, many of which were technical in nature. Amendments Nos. 2 and 10 were introduced to clarify the way "relative seniority" may be determined for the purposes of section 34(7) of the Act of 1998.

Under section 34(7) of that Act, an employer may give different rates of pay and different terms and conditions of employment to employees based on their relative seniority or length of service in a particular post or employment. It was brought to my attention that in some employments, where all other factors are equal in determining relative seniority based on length of service, such as where a number of staff are recruited to the same category of employment at the same time, collective agreements may be in place which allow a "tie-breaker" to be applied based on the employees' relative ages on the date of recruitment to the post. In these situations, thelimited circumstances in which they would operate, and subject to their being collectively agreed, section 23 of the Bill now provides for a new subsection (7A) in section 23 of the Act validating any such terms in a collective agreement. A consequential amendment to section 3 of the Bill, providing for a definition of "collective agreement" in section 2 of the Act, has also been made.

Amendments Nos. 3 to 6, inclusive, to section 9 of the Bill amending section 16(3) of the Act of 1998, which delete four of the seven factors originally listed as relevant to determining "disproportionate burden" on an employer, were introduced on Committee Stage in the Dáil in response to concerns expressed in the debate on the Bill in this House. On further consideration of the point as raised, I agree that this provision should reflect the exact provision of the framework employment directive in this regard and should refer only to factors specified in the directive, that is, financial and other costs entailed, the scale and financial resources of the employer's business and the possibility of obtaining public funding or other assistance.

Amendment No. 7 was made to section 10 of the Bill amending section 17 of the Act of 1998, which provides for the exclusion from the scope of the Act of actions taken in accordance with the Employment Permits Act 2003 which regulates the employment permits regime. It was considered that the intention of the provision, to exclude discrimination on the ground of nationality, in accordance with the 2003 Act, from the scope of the 1998 Act, was unclear. An amendment was adopted on Committee Stage in the Dáil to make this intent more explicit and was added to on Report Stage with a further safeguard specifying that the exclusion applies to the ground of nationality. Amendments Nos. 8 and 9 replaced the word "deleted" with "repealed" in sections 14 and 21, which respectively provide for the removal of sections 23 and 32 from the Act of 1998, as both of these are now provided for in new section 14A of the Bill. Amendment No. 9 was a Fine Gael amendment and amendment No. 8 was effected for consistency. Amendment No. 11 is a technical amendment to section 51(3) of the 1998 Act to clarify the application of the reference to the Civil Service Commissioners Acts to the appointment of the chief executive officer and staff of the Equality Authority. Amendments Nos. 12, 23, and 26 are technical amendments to the Bill to correct inadvertent errors at drafting, none of which impacted directly on the provisions of the 1998 Act.

Amendment No. 13 was made to facilitate access to redress from the Equality Tribunal, where a complainant is unable to effectively pursue a complaint by reason of an intellectual or psychological disability. It provides that in such cases a parent, guardian or person acting in place of a parent, may act as the complainant. Amendments Nos. 15, 19 and 22 made procedural improvements to the Employment Equality Act to allow immediate effect, where both parties to a case agree, to be given to a decision of the Director of the Equality Tribunal rather than waiting for the 42-day period in which an appeal can be lodged, to expire; to allow preliminary decisions to be made by the director on technical or minor questions of fact or law, rather than requiring a full hearing of the case to be held; and to clarify that in cases which the authority is considering or is taking under section 85 of the 1998 Act, the normal solicitor-client relationship of confidentiality will apply to information relating thereto.

Amendments Nos. 14, 16 to 18, 20, 21, 24, 25, 27, 28 and 41 provide for a series of amendments to the Employment Equality Act, each of which is related to the transfer of jurisdiction in discriminatory dismissal cases from the Labour Court to the Equality Tribunal. Section 77 of the 1998 Act divides the jurisdiction in discrimination cases between the tribunal in respect of discriminatory treatment, and the Labour Court in respect of a discriminatory dismissal arising from the same set of circumstances. The transfer of jurisdiction for both to be dealt with by the tribunal will bring greater coherence in the equality legislation and simplify the operation of the employment rights bodies. The amendments were welcomed by both the Labour Court and the Equality Tribunal and I am happy to acknowledge that this amendment was first proposed by Senator Tuffy in this House.

Amendments Nos. 29 to 39, inclusive, relate to amendments made to the Equal Status Act. Amendments Nos. 29 and 30 relate to the disposal of premises and the provision of accommodation. Amendment No. 29 was proposed by Deputy Moynihan-Cronin and I was pleased to accept it. The amendment is intended to provide that where accommodation is provided in a separate and self-contained part of a person's home and the provision of accommodation affects the person's private or family life or that of any other person residing in the home, that this is also exempt from the prohibition of discrimination. Amendment No. 30 which I brought forward, was to bring the discretion of the Minister for Justice, Equality and Law Reform in housing matters into line with that of local authorities.

Amendments Nos. 31 and 34 provide clarification that any decision taken in the context of asylum and immigration cannot be challenged under the Equal Status Act 2000. The effect of these Dáil amendments is to restrict the exemption to actions taken on the basis of nationality, and not to actions based on any other discriminatory ground. It is also made clear that decisions affecting non-nationals outside the State, or unlawfully present therein, cannot be challenged if they are taken on the basis of nationality. Amendment No. 32 is a technical amendment to align the wording in the section with the wording under the Immigration Act 2004. This was necessary to avoid the creation of different meanings under different legislation for the same term. On Report Stage I brought forward amendment No. 33 to amend an incorrect reference used for a subsection from another piece of legislation.

Amendments Nos. 35 to 37, inclusive, relate to the requirement to give the goods or service provider in question notice of intention of making a complaint within two months of the date of the occurrence of the alleged incident. The Equality Bill as passed by the Seanad permitted the Equality Tribunal to extend the two month deadline to four months for reasonable cause. The Opposition proposed extending the two month notification period to six months in all cases. Given the transient nature of the contact between service providers and customers, it is unfair to expect a service provider to recall an incident over a period of time. However, I proposed amendment No. 35 to the effect that the Equality Tribunal be permitted in exceptional circumstances to dispense with the notification requirement, where this is not prejudicial to the respondent. On foot of this amendment, a technical amendment, amendment No. 36, was made to subsection (6)(a) of section 21 of the Act of 2000 to reference the new subsection inserted in section (3).

Amendment No. 37 is identical to amendment No. 15. Amendment No. 38 provided for new subsections in section 23 of the Equal Status Act in line with similar amendments to the Employment Equality Act. This is a technical provision to provide for avoidance of doubt that where solicitors or barristers are employed under section 23 by the authority, the normal provisions governing legal privilege and client confidentiality apply and that certain provisions of the Solicitors Act 1954 do not apply to that section.

Amendment No. 39 is a technical amendment to provide that before the Minister makes any regulations under the Equal Status Act 2000 on the operation of the Act, he shall consult with the authority and the director.

I am pleased to progress this Bill through the Oireachtas. The implementation of the equality directives, and the various procedural improvements to our existing equality legislation and infrastructure, will facilitate our ongoing efforts to eradicate discrimination from the both the workplace and society at large. The Bill as amended will better facilitate access to redress where cases of discrimination are encountered and I commend these amendments to the House.

There may be a mix-up with the groupings.

I propose we take all the amendments together in one group if that is agreeable to the House.

Is that agreed?

Agreed. I wish to point out that Senators may only speak once on all the amendments.

That was the old-fashioned way of doing things before the change in Standing Orders brought about by Senator Ryan. Is that not the position, a Chathaoirligh?

It was at the request of Senator Ryan. I remember it.

It was raised at the Committee on Procedure and Privileges.

In that case, I will not be so agreeable the next time, a Chathaoirligh.

You have agreed in this instance.

It depends on what type of a day the question is put. I welcome the Minister of State back to the House. It is difficult to discover what is going on here unless one is dealing with consolidated legislation. I have repeatedly called for consolidated Acts because, as the Minister of State knows, he is not only referring to one piece of primary law, but, on the last count, a total of 18 pieces of legislation was also referred to. Senators would need to consult all of them to make sense of it.

The last time this legislation came before the House it received a good airing. I am pleased to see that some of the suggestions made by Opposition Senators and Deputies, in respect of these directives, have been taken into consideration by the Minister. By its very definition, there is a need to take one's time with a Bill that deals with transposing EU directives into domestic law. In that respect, this House is important in that it does not have the same time constraints as the Lower House, given the theatrical nature of the Dáil from time to time, including the party political posturing that takes place there. Having also had experience of the Lower House, I can say that this House lends itself to having the time in which to tease out such matters in greater detail.

Most of the Bill's provisions relate to EU directives. Over a consistent period, the great driver against discrimination in our society was not the State but the European Union. Various laws introduced in the European Parliament and the regulations devised by the EU Commission have provided equality for all our citizens. Therefore, when EU directives are to be transposed into Irish law we have an obligation to deal with them in a serious manner, as I am sure the Government does.

I commend the work that has been done on the Bill. It is good to see that the suggestions of so many Senators and Deputies concerning this legislation have been heeded by the Minister of State who has had time to reflect on them. That is the way in which we should be doing our legislative business. Other Ministers should follow the example of the Minister of State, Deputy O'Dea, and his departmental colleagues in this respect. In particular, Ministers in the Department of Transport should take due cognisance of the length of time that is required to take legislation through the Houses.

We are dealing with the Equality Bill.

I concur with what Senator Brian Hayes has said. I am a great critic of the Department of Justice, Equality and Law Reform but on many occasions both the Minister, Deputy Michael McDowell, and his Minister of State, Deputy O'Dea, have been more than willing to spend a considerable amount of time in this House dealing with legislation that was introduced here. For example, the Minister was very responsive to Opposition proposals concerning the Civil Liability and Courts Bill.

No one could take exception to any of these amendments. Legislation that is dealt with at a reasonably sane level and a reasonable pace, without undue haste by the Government or too much obstruction by the Opposition, can be improved. Parliamentary scrutiny is a necessary part of the legislative process. It is not a figment to achieve democratic status for Government proposals, but a real process. This is a human process in which various people can see matters that even experts can miss. If I have learned anything over the years in the Oireachtas, it is that I do not know very much myself but I pretend to know a lot. I have also learned that people whom one would think know everything, in fact, often tend to have slight gaps in their understanding. In the end, all of us mere humans have a contribution to make.

As a professional engineer, I have also learned over the years that no lay person should ever feel the least bit intimidated in the presence of a professional. There is a good chance the lay person can add something to the legislative process that perhaps legal specialists cannot. In defence of politics, there is a view that only politicians can deal with legislation because of what they know and have learned through their own experience. While I do not wish to disparage officials or Ministers in any way, such experience could never be brought to bear through officialdom alone. The same argument could be made to show that efficient officialdom will produce a better health service, but I am sceptical about that. I would also be sceptical if we had a wonderful, technocratic system of Government because I believe the same issues would arise.

I welcome the process which has seen this Bill introduced in this House, passed by the Dáil where it was further amended, and now returned to us. While I realise it is demanded by Standing Orders, it annoys me that all these Bills which originate in the Seanad end up being printed on green paper just because the Dáil amends them slightly. It is a small issue but I feel I should mention it.

The Senator will put up with it, however.

I will have to put up with it.

I welcome the Minister of State, Deputy O'Dea. I join with other speakers in welcoming the facilitating manner in which the Minister, Deputy Michael McDowell, and the Minister of State have taken account of the positive suggestions and recommendations contained in amendments to the Bill. At first glance, when I saw that 43 amendments had been made to the Bill in the Dáil, it raised the question as to how thoroughly the legislation was examined in this House. However, many of the significant amendments, some of which are technical in nature, arose as a result of the debate in this House. The legislation has benefited from the thought-provoking debate that took place here because many suggestions made were considered in finalising the Bill. While some of the amendments were technical, others will enhance the import of the Bill.

It is important to tease out equality legislation. Sometimes, we receive reports from various bodies dealing with equality issues but they are not always grounded in common sense. It must be recognised that people are not equal — they are different. People have different levels of ability, aspirations and ambitions. In many ways, they want to pursue their own course in life. It is essential, however, that people should have equality of opportunity, so our legislation must be grounded in that respect. In any event, equality is the cornerstone of good republican philosophy.

I welcome the amendments that have been made by the Dáil and I look forward to the implementation of the Bill which consequently will have a beneficial impact for a number of people.

I forgot to announce that because of a typographical error, there is a superfluous "and" on page 41, at the end of line 15. In accordance with Standing Order 121, I am requesting the Cathaoirleach to direct the Clerk to make the necessary correction.

I sincerely thank Senators Brian Hayes, Ryan and Walsh for their very kind comments. As I stated in the course of my reply, the Bill reflects a number of excellent suggestions from Fine Gael and Labour Party Senators and is much improved as a result. It demonstrates that the Department of Justice, Equality and Law Reform, expert though it may be, does not have a monopoly on wisdom in these matters and that when one brings common sense to bear, one invariably gets a better result.

On the serious point raised by Senator Brian Hayes, I wish to inform the House that it is intended to ask the Office of the Attorney General to prepare a restatement of the Employment Equality Act 1998 and the Equal Status Act 2000 to incorporate this legislation in order that we will have a single consolidated statement of law for ease of reference, not only by practitioners but by the general public and people working in the field.

I thank the Seanad for its valuable contribution, without which this Bill would be much less effective.

Question put and agreed to.
Question, "That the Bill do now pass", put and agreed to.