I raise this matter because I am very concerned about a particular case in County Clare where the Equal Status Act and Equality Tribunal are being abused by an individual. To date, an individual in the county, Ms Heather Rosen, who is an advocate on behalf of the Traveller community, has made 1,300 complaints against Clare County Council to the Equality Tribunal under the Equal Status Act. Thus far, between 70 and 80 cases — I am not sure of the precise figure — have been adjudicated on by the tribunal and all have been dismissed. Since 2003, as a result of the complaints made——
Adjournment Matters
Equality Legislation
The Senator should not name individuals in the House as they are not in a position to defend themselves.
The matters I raise are on the public record.
The Senator may not name individuals in the Chamber.
In that case, I will refrain from doing so. The cases in question are, however, in the public domain as they were brought before the Equality Tribunal and have been covered in the media.
Anyone may make a complaint to the Equality Tribunal. While the tribunal does important work, the problem I have is with the complete absence of procedures. An individual can write a complaint on the back of an envelope and submit it to the tribunal which is then obliged to carry out an investigation. Moreover, the institution against which a complaint has been made is obliged to mount a defence. If all 1,300 complaints to which I refer are investigated and ultimately dismissed, taxpayers will be exposed to costs running into millions of euro. Clare County Council has already borne significant costs as a result of having to defend the cases in question. Frequent adjournments of cases on various grounds further increase costs.
The Equal Status Act is extremely important legislation in an extremely important area. However, elements of the Act, particularly as regards the reporting of cases to the Equality Tribunal, can be abused if people so wish. I call for the introduction of an amendment to the Act to ensure the Equality Tribunal is not abused. That is not its purpose; this should not happen and it must stop. There is a provision in the Act, whereby the Minister can introduce regulations relating to how the Equality Tribunal carries out its business and adjudicates on cases, but to date no such regulations have been introduced. The legislation remains important but some tweaking is needed. If we are to have an effective tribunal which is run efficiently and can do what it is supposed to do, an amendment is required to the Equal Status Act. I call on the Minister of State to follow up the matter.
I thank the Senator for raising this issue. Before dealing with the substantive point raised by him, I will outline some of the background to the Equality Tribunal and the legislation under which it operates. I am taking this Adjournment debate on behalf of the Minister for Justice and Equality, Deputy Alan Shatter, who is unable to be present. I will pass on to him the points made by the Senator.
The Equal Status Acts prohibit discrimination in the provision of goods and services, the disposal of property and access to education on any of nine grounds. The Acts outlaw discrimination in all services generally available to the public, whether provided by the State or the private sector. These include facilities for refreshment, entertainment, banking, insurance, granting credit facilities, transport and travel services. Discrimination in the disposal of premises, the provision of accommodation, admission or access to education courses or establishments is also prohibited, subject to some exemptions. Under the Equal Status Acts 2000 to 2008, the Equality Tribunal deals with complaints of discrimination based on nine grounds, namely, gender; civil status; family status, including pregnancy; age; disability; race, including nationality; colour or ethnic-national origin; religion or belief; sexual orientation; or membership of the Traveller community.
The Equality Tribunal is an impartial, independent body, set up to investigate and decide or mediate cases brought under the equality legislation. Its decisions and mediated agreements are legally binding and it has extensive powers. The tribunal is a quasi-judicial body, in that it does not have to decide cases on court procedures and can follow relatively accessible and informal procedures. It is, however, bound by the principles of natural justice, which means that it must act impartially in considering complaints before it and must ensure fairness for both parties in its procedures. The service is free and parties are not required to have legal or other representation.
Complaints in respect of registered clubs and premises may only be referred to the District Court and may no longer be referred to the Equality Tribunal. Any person who believes he or she has experienced discrimination by a service provider which is contrary to the Equal Status Acts may seek redress by making a complaint to the tribunal. Before referring a complaint to the tribunal, a complainant must first notify the service provider and has the right to ask for information in that notification. The notification must be in writing and sent within two months of the incident complained of, or, in the case of repeated incidents, the most recent one, stating the nature of the allegation and the intention to seek redress under the Equal Status Acts, if the complainant is not satisfied with the service provider's response. The service provider is not obliged to reply, but the Acts state the tribunal may draw such inferences as seem appropriate if the service provider does not reply or provides a false, misleading or unhelpful reply.
Any person who believes he or she has experienced discrimination which is contrary to the Equal Status Acts may, after notifying the service provider, seek redress by referring a complaint to the Equality Tribunal. The Acts provide that a claim may not be referred to the tribunal after six months from the date when the discrimination or victimisation occurred, or, in the case of a repeated act, last occurred, unless the complainant applies for an extension of time. If the delay was caused by the respondent misrepresenting the facts to the complainant, the time limit runs from the date when the complainant discovered the misrepresentation.
I turn to the substantive point raised by the Senator. The position is that section 22 of the Acts allows the tribunal to dismiss a complaint without a hearing at any stage if, in the opinion of the director or an equality officer, it has been made in bad faith or is frivolous, vexatious, misconceived or relates to a trivial matter. This provision is robust enough to ensure any attempts to abuse the legislation can be stopped as soon as such abuse becomes apparent. I cannot comment, nor can the Minister for Justice and Equality, on individual cases. I can, however, inform the Senator that the Minister has been informed by the director of the Equality Tribunal that the tribunal exercises this power, as required. Moreover, if a complainant does not pursue a complaint lodged, the director may dismiss the complaint after one year for non-pursuit. Once a complaint goes to hearing, an equality officer will dismiss a complaint if the complainant fails to establish a prima facie case. It is important to note that the failure to establish a prima facie case does not mean that the complaint was made in bad faith, was frivolous, vexatious or misconceived.
The director of the Equality Tribunal has further informed the Minister that the number of cases lodged under the Equal Status Acts has fallen significantly in recent years. The backlog of outstanding cases has been reduced. All cases which were lodged in 2010 and which have not been settled at mediation or withdrawn have now been assigned to equality officers for investigation and decision. The number of claims made under the Acts is not a particular burden on the tribunal.
If the Senator raises individual cases, I will be happy to ask the Minister and the Department of Justice and Equality to pass on the points raised to the Equality Tribunal. What the Minister and I cannot do, given the statutory independence of the director and the quasi-judicial role of the tribunal, is comment on individual cases or involve ourselves in any way in making inquiries about the process or the basis of individual cases. I again thank the Senator for raising the matter.
I thank the Minister of State for her comprehensive response. The best way of describing the case I have raised is to say it is a corporate effort by an individual to abuse the ethos of the Equality Tribunal. How can one individual make 1,300 separate complaints? If the Equality Authority was operating in the real world, it would have dealt with this matter. It is completely unacceptable that what is, by and large, a very good organisation which does exceptionally good work has been entirely blocked. Its reputation in my county is at a very low ebb because the public is very angry about——
Does the Senator's question relate to the 1,000 complaints made?
I will get to that matter. The Minister must do something. I will not mention the details of the case referred to but every single complaint has been dismissed. A further 1,300 complaints from the same individual remain to be assessed. The local authority is stretched to the limit in trying to make ends meet but it has to bring forward a defence and send people to Dublin.
The Senator must ask a supplementary question. He had his opportunity to make a statement.
This is important.
I know it is, but I am adhering to Standing Orders.
We would have finished the discussion if the Acting Chairman had not interrupted me.
Or if the Senator had asked a supplementary question.
The reality is that there has been what I would describe as a systematic attempt to undermine the Equality Tribunal. In a case in which multiple complaints are reported to the Equality Tribunal by one individual, surely to God the Minister for Justice and Equality can do something to bring the matter to an end.
The short answer is "No", the Minister cannot do so. In the first instance, the Equality Tribunal is a very important part of the architecture of our democracy. We cannot say we will limit the number of complaints a person wishes to make. It is clearly not a burden on the tribunal which has dealt with every case that has come before it. There is a queue and it is dealing with these cases, too. However, if one were to go down the road of trying to limit the number of complaints an individual could make, no matter what the Senator's opinion of the case is, that would be a retrograde step. As stated, the tribunal is sufficiently robust to deal with issues of this nature. If the Senator is conscious of continual complaints being made in this instance, then I am sure the tribunal is also aware of them. The tribunal has dealt with the matter in the way it has chosen. We must allow bodies such as the tribunal to deal with complaints as they see fit.
I was seeking an alteration to the legislation.
Garda Investigations
This matter relates to the reform of legislation relating to inquests involving Northern Ireland residents who die in the Republic of Ireland, particularly in the light of the request of the Irish Human Rights Commission and the Northern Irish Human Rights Commission on 5 May for an inquest, under Article 2 of the European Convention on Human Rights, into the murder of Mr. Denis Donaldson in County Donegal in 2006. I am asking that the Minister for Justice and Equality take the necessary steps to facilitate this request.
I thank the Senator for and appreciate her brevity. I also thank her for raising this matter, which I am taking on behalf of the Minister for Justice and Equality, Deputy Shatter.
The murder of the person to whom the Senator refers is the subject of an active and ongoing criminal investigation by An Garda Síochána. In that context, the House will appreciate that we must be judicious in our comments with regard to the case. I am sure the Senator is well aware of that. There is never any justification for the violent taking of human life. An Garda Síochána will vigorously pursue all leads in its investigations into brutal crimes of this nature. That is the position regardless of the circumstances in which a crime was committed. In accordance with the legislation relating to a death which may have occurred in a violent or unnatural manner, there is a duty on the coroner for the relevant district to hold an inquest into the death. Accordingly, the death of the person in question is the subject of a coroner's inquest. I am aware that the inquest has been adjourned on several occasions for reasons with which I will deal later.
The legislation governing matters relating to coroners is the Coroners Act 1962 and subsequent amendments thereto. This legislation, which is under review in the context of legislative proposals in this area, provides that a coroner is a statutory officer exercising quasi-judicial functions in respect of which he or she is independent. The House should be conscious, therefore, that neither the Minister for Justice and Equality nor his Department has any role in individual cases which may be the subject of an inquest. Under the legislation to which I refer, where a coroner believes that a death was violent, unnatural or happened suddenly and from unknown causes, he or she will hold an inquest to establish the facts of how the person died. The function of a coroner's inquest is not to decide if someone is legally responsible for a person's death. Rather, it is solely intended to establish the identity of the deceased and when, where and how the death occurred. The Coroners Act 1962 makes explicit provision that prohibits a coroner's inquest from considering questions of civil or criminal liability or from censuring or exonerating any person.
I emphasise that in circumstances where a coroner's inquest is required, the conduct of such an inquest for residents of Northern Ireland who die in the State is no different from that relating to inquests for residents of the State who die here. I reiterate that the Minister has no role in respect of the conduct of inquests. That is entirely a matter for the coroner in accordance with the legislation related to coroners.
With regard to the comment made in a joint statement issued on 5 May this year by the Irish Human Rights Commission and the Northern Ireland Human Rights Commission, the incorporation of the European Convention on Human Rights into Irish law means that the coroner must have regard to the convention, including Article 2. I have no doubt that the inquest in respect of the death of the person in question in this instance meets the highest international standards and that it fully complies with Article 2. The commissions also expressed concern that the Coroner's inquest in this case has not yet been concluded. I am sure the House is already aware that it is the usual practice in cases where an investigation is ongoing that the Garda Síochána would request the adjournment of an inquest to avoid the possibility arising that the proceedings of the inquest might prejudice a criminal investigation. This is specifically provided for in section 25 of the Coroners Act 1962.
The commissions further indicated that the family of the person in question is concerned about the lack of information available to it from the Garda Síochána. In that context, the Minister has been informed by the Garda authorities that it is the family's wish that the force should liaise with its solicitor and this is being done. However, the Garda authorities remain ready to facilitate requests from the family to brief it on progress with the murder investigation. As stated, the Garda investigation into the murder of the person to whom the Senator refers remains open and active. Information provided by the Garda authorities indicates that a number of lines of inquiry continue to be pursued by the investigation team. Bringing those involved in this killing to justice must remain the priority. I hope what I have said will be of some assistance to the Senator.
I thank the Minister of State. Mr. Donaldson was an Irish citizen but there are different standards for Irish citizens in the two jurisdictions on this island. An inquest into anyone killed in the North — in circumstances where state agencies may have direct or indirect knowledge or involvement — must be compliant with Article 2 of the European Convention on Human Rights. This is not merely the whim of the British Government or that of the Assembly of the Six Counties, it is a requirement of the European Court of Human Rights. The inquest system in the Twenty-Six Counties is not compliant with Article 2. Under the system in the Six Counties, state agencies are compelled to bring forward information and senior serving and former members of the police and other state agencies are obliged to co-operate with inquests. The cross-jurisdictional issues to which I refer arise in the case of Denis Donaldson. Many other Irish citizens have been affected by these issues and there is a need for cross-Border co-operation in order that they might be resolved.
I am aware that the Senator is passionate about these issues and respect her for that. I am assured that we comply with Article 2. However, I take on board what the Senator said and will make further inquiries on her behalf. The investigation is active and ongoing and — even from common-sense point of view, if not legally — it could prove prejudicial if the groups of people to whom Article 2 refers were to go before a coroner's court in open session and provide the type of information that would be requested.
Dr. Maurice Manning, president of the Irish Human Rights Commission, stated, in respect of this issue, that there is an urgent need to reform the law on inquests in this jurisdiction.
The Seanad adjourned at 7.50 p.m. until 10.30 a.m. on Thursday, 13 October 2011.