I welcome the Minister of the State, Deputy Kathleen Lynch.
Employment Equality (Amendment) (No. 2) Bill 2013: Committee Stage
Before we start and without any intention of rudeness to the Minister of State, whom I welcome to the House, I did not see any list of amendments on the table.
They were there this morning.
They are there now.
Amendments Nos. 1 to 3, inclusive, are related and may be discussed together.
I move amendment No. 1:
In page 3, before section 2, to insert the following new section:
“2.—Section 6 of the Employment Equality Act 1998 is amended by substituting the following for subsection (2)(e):
“(e) that one has a different religion or belief from the other, or that one has a religion or belief and the other has not (in this Act referred to as the ‘religion or belief’ ground.”.”.
Can the Acting Chairman remind me which amendments are grouped because I do not have a list of the groupings.
Amendments Nos. 1 to 3, inclusive, have been grouped.
I welcome the Minister of State. I wish to make some introductory remarks before I get to my first amendment. I am heartened to see that the Government has agreed to bring the Bill sponsored by Senator Ivana Bacik et al to Committee Stage. Time continues to pass, yet there is still a part of our employment equality legislation, namely, section 37 of the Act, which can be used in an unjust way to discriminate against people in the light of their identity. It is good that we are in the House to debate the matter now.
On two previous occasions, in the debate on Senator Averil Power's Bill and on Second Stage of this Bill, I argued that section 37(1)(b) of the Employment Equality Act should be deleted and that only in this way can we, as law-makers, offer absolute assurance to Irish employees working within religious institutions - most of which deliver public services, which is the critical point and the point several of my amendments are trying to address - that their private life is not relevant to their employment.
As we are all aware, the Minister for Justice and Equality, Deputy Alan Shatter, introduced a Bill in the Dáil yesterday evening to provide for the merger of the Equality Authority and the Irish Human Rights Commission. This is a good example of where a human rights issue, that is, the right to privacy, provides us with an appropriate framework to consider equality concerns, in this case, equal treatment in light of people's identity. This bodes well for the kind of things that the new commission could help us with.
I have argued that the section should be deleted on the basis that an institution's right to protect its religious ethos is already protected in law. My question was: while the Supreme Court may have found section 37(1)(b) to be compatible with the Constitution, does the Constitution require an exemption to our equality laws of this nature? Does the Constitution require the additional protections of religious ethos found in section 37(1)(b)? The Bill is attempting to add additional restrictions to that exemption, but does it require it? While the Bill might allow for it, does it require it? I am keen to have these questions answered.
It is helpful that we are at a point where the Bill provides additional restrictions, especially out of concern for lesbian, gay bisexual or transgender, LGBT, teachers, nurses and administrators. Again, no one, because of a characteristic of his or her identity, including religion or belief, ought to be discriminated against in the context of employment, unless it has to do with a genuine occupational requirement of the job. This principle is behind many of my amendments and what the EU framework directive requires of us. It relates to the power of an enforceable human right to a private life.
My first amendment proposes to amend the Employment Equality Act and I see it as opportunity to bring this measure into the Bill. It would bring the definition of "religion" and the religion ground into full compliance with the framework directive by redefining it to include "religion or belief". This is a term employed in the directive. Although the directive does not define the term, use of the disjunctive "religion or belief" suggests protection should be extended to belief systems that do not stem from a religious doctrine.
Since both the preamble to the directive and the EU charter express respect for principles of the European Convention on Human Rights, the term "religion or belief" should be read consistently with Article 9 of the European Convention on Human Rights. As it stands, the term used under the religion ground in the Employment Equality Act is "religious belief", which is too narrow and does not comply with the directive as it may not cover philosophical beliefs such as humanism or atheism. Atheist Ireland raised similar points in its briefing document which notes there are general principles of European law which give equal recognition to religious and non-confessional philosophical beliefs.
Amendment No. 3 is necessary to redefine the "religion" ground to mean "religion or belief". Acceptance by the Minister of amendment No. 1 would require a change in the language used in section 2(1)(a) and (b) to make the ground more inclusive, as defined by European law. It is noteworthy that the drafters of the Bill included the term "religion or belief" in section 2(1)(b) and, as such, extended the religion ground to include "belief". On the basis that the word "belief" is used in the paragraph to which I referred, it should also be used elsewhere in the Bill. The amendment provides an opportunity to change the definition of this ground in the Employment Equality Act.
I am glad that we have come to this point and while I congratulate Senator Ivana Bacik on introducing amending legislation, the Bill before us does not go far enough. I remember the entire debate on the principal legislation. Former Senator Joe O'Toole and I strongly opposed section 37, which was included, I am ashamed to note, at the request of all the Christian churches, including mine. The Church of Ireland was as deeply implicated in the matter as the Catholic Church. I believe the churches were motivated by the fear that, in circumstances in which they were a minority, their religious ethos would be diminished or evaporate. This is an unnecessary fear. If one has faith, one should believe one's religion is capable of surviving.
In my imperfect way, I am a deeply religious person and regular church attender. I never received any religious instruction of the slightest value throughout my entire educational career. Such instruction was regarded as a total nonsense and took place occasionally for perhaps one hour per week. Most of the time, the clergy did not turn up for instruction and when they did they got us to read Lady Chatterley's Lover and similar books to broaden our minds. We did not learn anything.
Religious instruction is the responsibility of parents - if they want to continue a religious tradition - and is much more valuable when it comes from parents. It is from my mother, aunt and grandmother - my father was dead - that I got my love of the church.
While there are reasonable circumstances in which a person with a religious belief can be favoured, this Bill goes much too far. It would be bad for all concerned, for example, if a committed atheist were required to teach religion. Children are not fools and would know immediately that their teacher did not believe what he or she was teaching. To require an atheist to teach religion would, therefore, do violence to the children and the conscience of the person who was required to teach something that went against his or her beliefs. Such an approach is wrong. I am sure any flexible school will be able to find a proper, practical and pragmatic solution to this problem. It is not one that requires discrimination to be enshrined in law. While the Bill introduced by Senator Ivana Bacik moves a considerable way in the right direction, it continues to allow for discrimination.
I remind the House of a fine speech made many years ago - it may be 20 years ago now - by the then Minister for Justice, Ms Máire Geoghegan-Quinn, in response to an attempt by the Opposition to introduce a nasty set of amendments aimed at inserting in legislation a discriminatory age of consent for gay people. In fairness to the Fine Gael Party, a revolt in the ranks resulted in the proposals being filibustered in the Dáil by party Deputies, including the current Minister for Justice and Equality, Deputy Alan Shatter, a man whom I do not always praise. They did a good job in talking out the amendments. While I may not remember her words entirely accurately, the sentiment the then Minister expressed when the Bill was introduced in the Seanad burned into my conscience because they expressed a golden rule. Ms Geoghegan-Quinn noted that she had been asked to accept amendments which would provide for discrimination, stating that, as a Minister for Justice, she would only introduce a measure of discrimination against an Irish citizen if clear, cogent and factual reasons for such discrimination were produced for her in the House. As such reasons had not been produced, she would not, she said, introduce the proposed measure. This was a very important statement because it demonstrated that the issue is not sexuality but the principle of those moments where discrimination is required.
I have received an unusual flurry of communications on this issue from people who are concerned about their jobs and the extraordinary and outrageous decision taken in the Flynn v. Power case which related to the dismissal of Ms Eileen Flynn simply because she was pregnant and was living with a person who was not her husband. I also remember a case involving, I believe, two history professors in NUI Maynooth who were discharged because they left the priesthood. The decision in that shocking case was upheld in the Supreme Court. I would be very concerned if such cases were to continue.
While I am not an atheist, I believe the rights of all citizens should be protected. Under the Bill, if one is gay and an atheist, one may be protected to some extent as a gay person but one would not be protected as an atheist. Atheists have a right of conscience and their position should be regarded as a form of belief because atheism is a belief in that it involves, for example, the belief that there is no god and the universe is a nonsensical mistake, an accident that took place at the time of the big bang and so forth. While I do not agree with those views, people are perfectly entitled to hold such a principled position, which, while not particularly scientific, is a form of belief. I will table a Report Stage amendment to provide that atheism be treated as a belief.
The Bill, as it stands, negates the whole point of equality law by making some types of equality more equal than others. As I stated, a gay, atheist teacher could be fired on the basis of his or her belief but not on the basis of his or her sexuality.
The position in respect of European Union directive 2000/78/EC is inaccurate because Article 4 does not require but merely allows member states to permit discrimination in certain circumstances. Article 8 explicitly allows member states to introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in the directive. In other words, we have considerable room for manoeuvre and are not required by the European Union to do what is done in the Bill. On the contrary, we are almost encouraged to be more open and liberal.
Some years ago the Supreme Court examined this section of the Act and found that the legislation provided for a reasonable balance of the different rights involved, including, chiefly, the rights to earn a living and to freedom of religion and association. It found that the 1996 Bill was not repugnant to the Constitution, which is a very interesting phrase. Nowhere in the Supreme Court judgment is it suggested that such a provision is required by the Constitution. The Seanad, as a calm and reflective House, should consider these subtle distinctions. Institutions that are State funded should not be allowed to discriminate on the grounds of religion or belief. The State should not fund religious discrimination against its citizens. Further, institutions that are not State funded should be subject to restrictions of the type the Bill places on State funded bodies.
As I stated, it is a violation of conscience to require an atheist to teach religion. It is both absurd and an example of very bad teaching practice. I understand the Minister of State is a teacher. Is that correct?
Well I was a teacher and know something about the subject. Regardless of whether she was a teacher, the Minister of State is a woman of imagination and vision; therefore, she can understand what is involved. In the context of the matter under discussion, I am aware that what is envisaged would be very bad practice. Obviously, it would be absurd to try to force the Church of Ireland and the Roman Catholic Church to employ atheists or Mormons as clerics. That would be daft and the job specification would militate against it. I am sure there is employment legislation under which this matter could be dealt with and in the context of which it might be made clear that someone is not suitable or qualified for the job and that he or she should go elsewhere to teach atheism or Mormonism.
As stated, I hope to table amendments for Report Stage. I also hope the matter will not be put to a vote at this point. I will be tabling an amendment in respect of the word "religious". In Ireland, that word has a particularly narrow connotation. I would like to change the legislation to read "religious or belief-based". This would allow us to include all different belief systems. I would also like to amend the legislation in order that it would read "where it is reasonable to conclude that performing the job concerned objectively requires an employee to hold a particular religion or belief". The latter would cover Bible classes, religious instruction and so on. It would also leave intact the rights of people who are atheistic, gay or whatever. I would also include the following text at the end of the subsection, "but publicly and lawfully manifesting a religion or a belief shall not be grounds for undermining the ethos of an institution".
A situation similar to that with which we are dealing arose in Scotland some 15 years ago. I refer to the case of a young man who was employed as a gardener in a public school and who was seen on television holding a banner at a gay rights demonstration in Edinburgh. He was dismissed from his post and the decision to dismiss him was upheld by the highest court in Scotland. That was a dangerous development. The man was a gardener and he was not corrupting anyone. He had a perfect right, as a citizen, to hold a banner. It was quite reasonable for him to do so and his behaviour was not an infringement of the rights of the school involved. If a person behaves outrageously or turbulently, there are many manifest grounds for getting rid of him or her. It is for this reason that the phrase "publicly and lawfully manifesting a religion or a belief shall not be grounds for undermining the ethos of an institution" should be included in the legislation.
I hope to table quite a number of amendments for Report Stage. I welcome what Senator Katherine Zappone stated and the Minister of State's presence in the House for this debate. I will be supporting the amendments tabled by Senator Averil Power. In an institution that is increasingly dominated by bourgeois voices, it is very good to have someone like the Senator who represents a conservative party but who takes a radical view and who considers situations in a realistic light. I look forward to the continuing debate on this matter.
I welcome the Minister of State. I also welcome the members of GLEN and the representatives from Labour LGBT who are in the Visitors Gallery. Both have been very active on this issue and in seeking legislation such as that before the House. As the person who brought forward this Bill 12 months ago, I am delighted the Government allowed it to pass Second Stage and that it is now facilitating Committee Stage. I am sorry, however, that it has taken this long and it is unfortunate that it is a year since Second Stage was taken. As stated, I am aware the Equality and Human Rights Commission has been compiling a report, which I have not seen, and that the Government wanted sight of that to evaluate how it might improve upon the Bill. On Second Stage, many Senators, including me, stated the Bill could be improved and made more robust by means of amendment. None of us wanted there to be a delay of 12 months, however, and I am committed to ensuring we will dispose of Committee Stage by Easter. It is very important that if we do not conclude our deliberations on it today, we do so next week. Progress must be made in respect of this matter.
The types of situation to which Senator David Norris referred and which were raised on Second Stage by Senator Katherine Zappone and others - I refer to the awful case involving Eileen Flynn - illustrate exactly why legislation of this type is required. Some of us, me included, referred to the fact that the Bill was somewhat conservative in terms of the way it was drafted. Examining the matter 12 months on, it is vital the legislation be enacted in order that LGBT employees might be protected. I refer in particular to gay people who are teaching in institutions which, as is the case with 90% of them, are run by religious orders. Such individuals live in fear as a result of the fact that the existing section 37(1) remains in place. Let us not allow technical issues relating to the Bill delay its passage. It is extremely important that the Bill be enacted, especially as it relates to a Government commitment that is long overdue for implementation.
I read the submission made by Atheist Ireland and, as an atheist, I support it. However, Atheist Ireland is overly dismissive of the Bill and it underplays the great significance it will have, even if passed in its current format. Atheist Ireland also misunderstands Article 4 of the directive. We will return to that point when we examine the Bill in greater detail.
It is welcome that Senators Katherine Zappone and Averil Power have put forward constructive amendments by means of which they are seeking to strengthen the Bill. However, we must also be cognisant of the need to have the Bill passed in order that employees who suffer the chilling effect of the continued existence of section 37(1) might be protected. In her amendments Senator Katherine Zappone is seeking to amend the original Employment Equality Act. They are not really directly related to amending section 37(1) but rather involve trying to broaden the religion ground to include atheism. I thoroughly agree with the Senator in this regard, but I do not agree with the wording used in amendment No. 1, namely, "that one has a religion or belief and the other has not". As an atheist, I have a belief. It is not that I do not have a belief. It is just a matter of considering how we might improve on the wording to which I refer.
The Senator does have a belief, even though it is in error. We will pray for her.
Many people have said that during the years. I always welcome prayers, from those of any religion or none. It might be worth reviewing the employment equality legislation in order that we might discover how we might better define the grounds involved. I do not believe such a review should delay the progress of the Bill.
I remind everyone that all the Bill seeks to do is amend section 37(1) of the Employment Equality Act 1998. Section 37(1) currently provides religious, educational or medical institutions under the direction or control of bodies established for religious purposes blanket permission to discriminate. There is no qualification in respect of section 37(1). The Bill before the House will insert entirely new paragraphs (b), (c) and (d) into section 37(1). These will for the first time create a presumption that where a body or institution of the sort to which I refer is publicly funded, either favourable treatment on the religion ground or action to prevent undermining religious ethos will be deemed to be discrimination. The presumption will, therefore, be utterly reversed. We may have downplayed the significance of this on Second Stage but it is important to highlight it now. The paragraphs to which I refer are entirely new and they presume discrimination. Paragraph (d) makes clear that the respondent must prove the contrary, in other words, that it is not discrimination in cases where they exercise more favourable treatment on religion grounds or where they seek to prevent an existing or prospective employee from undermining religious ethos.
Much of the language used in the paragraphs is already contained in section 37(2) of the original Act as a result of amendments made under the Equality Act 2004. Section 37(2) already allows for a general exception to discrimination, on all but the gender ground, where a characteristic is a genuine and determining occupational requirement, where the objective is legitimate and the requirement proportionate. This means that a general proviso is already in place in respect of all employments. We have replicated some of the language used in section 37(2). I will speak to the specific points relating to Article 4 of the directive when we deal with the relevant amendments.
Let us not lose sight of the key purpose of the Bill which is that it will provide for significant protections for employees who are currently experiencing discrimination or potential discrimination in the workplace. It will also have huge significance in the context of reversing a presumption and in presuming discrimination has occurred in situations covered by section 37(1), which currently allows for blanket freedom to discriminate.
Before I call Senator Averil Power, I wish to point out that we are dealing amendments Nos. 1 to 3, inclusive. I accept that it is 12 months since we previously dealt with the Bill, but Senators are making Second Stage speeches.
In broad terms, I support the point Senator Katherine Zappone is trying to make in the amendments. It is important to refer - I will do so in very brief terms - to the overall impetus behind the Bill which was introduced last May.
I made the point during the last debate that while I welcomed the fact that any move was being made to address this legislation, I am strongly of the view that the Bill does not go far enough. It does not make it clear that there are no circumstances in which a person cannot be discriminated against for being LGBT, an unmarried parent, a divorced person or anything else. It changes the onus of proof. Unless our legislation makes it absolutely clear that there are no circumstances in which an employer can discriminate against someone on grounds of sexual orientation or other inherent personal characteristic, the fear and self-censorship that LGBT teachers, doctors and others feel will remain. Teachers in particular have been in contact with me and told me that their real fear is of the unknown. People often say that if a case went to court, it might well be decided in favour of the employee, but it is the unknown that stops people coming out in schools. It is the unknown that sends them back into their staff room every Monday morning where they lie about their weekend and cannot talk about their personal relationships out of fear. In this House in 2014 we must give nothing short of an absolute blanket guarantee to such members of staff that there is no way their employers can discriminate against them just because they are gay. Anything short of that is insufficient.
I am genuinely concerned about the legislation. While I accept that it shifts the onus of proof and makes it clear that it is on the employer, the only way we can know what is justifiable is when someone goes into court and argues with his or her employer in court about whether the discrimination was justifiable. It is only then that we will find out what the benefit or otherwise of the Bill is. That is unacceptable. All employees deserve the absolute protection of their equal rights as citizens to those of other teachers or doctors and any other employee in their workplace. Everybody should be judged solely on the ability to do his or her job and nothing else.
The Bill does not go far enough. I am concerned that whatever about the decisions made in the House in 1997 and 1998 when the original Acts were being debated and implemented, it would be regressive for us to pass a Bill in 2014 that accepts it is okay that there are still circumstances in which one can discriminate against people on the basis of their sexual orientation or family or marital status. It would be a great missed opportunity and send a damaging message from the House that we think discrimination against people on these grounds is justifiable.
For that reason, I have tabled a number of amendments and wish to hear the Minister of State's response to them. We will at least be able to see where we are going with the direction of the Bill. On Second Stage, it was indicated that Government amendments would be brought forward on Committee Stage. We are on Committee Stage a year later with exactly the same Bill and no Government amendments. None of us has any sense of where this is going. When the Minister came to this House to debate the Fianna Fáil Bill two years ago, he said he would immediately commission the Human Rights and Equality Commission to undertake a study and public consultation. I questioned him and made it clear at the time that I was concerned that no clear deadline had been placed on that. We have still not seen the report of that work two years later. The deadline closed in November, but we have not seen the report. The submissions have not been published either. None of us is any wiser in this debate than we were two years ago and that is not acceptable.
We have tabled a number of amendments. While I will not push them to a vote today. We will listen to what is said today but we will push them on Report Stage. On Report Stage, neither I nor our group will be able to accept the Bill in its current form. We genuinely believe it is regressive. We hope we can take the opportunity of today's debate and the amendments Senator Katherine Zappone and I have tabled to ensure that we strengthen the Bill and that it achieves the ultimate objective of removing the chill factor and ensure that there is no doubt in anyone's mind that discrimination is justifiable.
Before I leave the Chamber, I acknowledge the presence in the Visitors Gallery of members of the Irish Special Olympics team who have joined us. They are very welcome.
I did not realise I had such distinguished visitors behind me.
I support the overall point Senator Katherine Zappone is making. Senators Katherine Zappone and DAvid Norris have argued there is a distinction to be made between a court saying that the Bill in its original form is consistent with the Constitution, but it is a hell of a long stretch from that to assert that it is required by the Constitution. That has been bandied about but the court did not say it. In the past two debates, we were told we could not press these issues because it would be unconstitutional. That is not true. There has been no determination on that. The court simply decided that the Bill as put forward was consistent with the Constitution. It did not comment on whether an alternative Bill, my amendments, Senator Katherine Zappone's amendments or anyone else's amendments would be consistent with the Constitution.
On the broader religion point, I accept that if someone is to work as a religion teacher, cleric or in another religious role, it is essential that he or she believes in the relevant faith. Senator David Norris's point is well made. It is difficult to pass on one's faith or engage in religious instruction in a genuine and forceful way if one does not share that faith. That should not be used to discriminate against staff whose role is primarily secular. We must find a better balance on this issue. I do not know if Senator Katherine Zappone intends to push her amendments today. I hope not as I would like us to have more engagement on what is possible and desirable. Some of these issues may need to be taken up in the broader context of patronage of schools. Issues in relation to staff entitlements and protecting people's rights should be taken up.
We have had debates in this House and elsewhere on the desirability of having fewer schools under religious management and having our education system more directly reflect our society. However, it would be fair enough to insist that anyone working in a school that is under religious management upholds the ethos of the school while there and refrains from saying anything inappropriate in the classroom. He or she should not criticise the Pope, for example. Nobody would have an issue with that. I cannot imagine that any teacher would put himself or herself in that situation. Short of this, if a person shows respect for the school and the school's ethos, I cannot see why he or she should be denied a job because of his or her private faith. I do not understand it and consider it to be utterly unnecessary. It is a form of inequality we should not stand for in this day and age.
In the last debate Senator Ivana Bacik referred to EU Directive 78/2000 and said it required that kind of discrimination. In fact, it does not. Similar to the others provisions that have been cited here regarding the Constitution, it provides that member states "may" provide that a difference of treatment shall not constitute discrimination in certain circumstances. It says that member states "may" maintain national legislation in force on the date of the adoption of the directive or provide future legislation incorporating national practices existing at that date. The difference in treatment shall then be implemented taking account of member states' constitutional provisions and principles.
It goes on to say that where an ethos is based on religion or belief, the directive shall not prejudice the right of churches and other public organisations - acting in conformity with national constitutions and laws - to require individuals working for them to act in good faith and with loyalty to such organisation's ethos. The language throughout the directive refers to "may" rather than insisting. That last paragraph reflects what I have just said which is that people would act in good faith and with loyalty to the organisation. If someone of the Protestant or other faith or who has no faith is looking for a job in a Catholic school, he or she should be required to uphold the ethos of the school and not actively seek to undermine it. He or she should show loyalty to his or her employer and act in good faith.
Clearly, a person should not stand up in classroom and challenge or criticise the tenets of the faith or church and actively work against the ethos of the school. However, I do not see how quietly carrying out one's private faith in one's own time in any way represents failing to act in good faith and with loyalty to the organisation's ethos. There is scope for us and the directive does not represent a blanket reason for us not addressing the religion ground. We must find a wording on the religion ground which is consistent with the directive, but according to the advice I have taken since the last debate, it is not as strong as was argued last time out. There is scope for improvement.
I did not comment fully on my second amendment. I wish to add to my comments.
I tabled the amendment because I am concerned that the Bill does not apply the new paragraph (b) where additional protections are offered to people. In the light of the religious ethos issue we are discussing, it does not apply to all prospective employees or employees' bodies with a religious purpose. The proposed heightened protection in the subsection is not extended to persons employed by a religious institution. The amendment seeks to include religious institutions per se and not only an institution under the control of a body established for religious purposes. For example, the additional protections afforded under the legislation do not extend to priests, women religious, rabbis, those employed by the archdiocese such as administrators, synagogues or those employed directly by churches such as organists and choirmasters. Why should they not be protected also? I would like to make sure I am correct about that but my reading of the Bill means it should include the issue of religious institutions per se.
I refer to Senator Averil Power's comments, particularly the issue of not having the advices of the Equality Authority or the IHRC or amendments from the Government on the issue. We all attempted to table amendments outside of that advice. The advice should be before us and it would be helpful, but I am surprised that the Minister does not have it either. We need to be technically correct this regard. I am not a lawyer but we need to be correct because one of the prime issues, which Senator Ivana Bacik argued, is the law has to be clear in order that LGBT teachers and people who are atheists or humanists or who come under any other ground are still protected in respect of the religious ethos issue apart from where it is a genuine occupational requirement, which is governed by EU principles. I am sorry we do not have amendments from the Government, as Senator Averil Power said, in order that we know where we are going.
I welcome the Bill. It has been hanging around for more than a year and it is great to see the members of GLEN and various LGBT organisations. There is an active LGBT group within Fine Gael under the stewardship of our colleague, Deputy Jerry Buttimer, which is doing great work. Section 37 of the 1998 Act should never have been introduced in the first place. Who were the legislators at the time trying to appease? This legislation will clean up the appalling vista created by that section. I agree with most of Senator Averil Power's contribution, but I would like there to be unanimity on the Bill if it can be achieved. As acting Leader, I will not push for Committee Stage to be completed today. It should continue next week and between that and Report Stage I hope that we can have conversations with Senators Katherine Zappone, David Norris, Averil Power and others and if the wording of the Bill is ambiguous, that can be clarified. Where it is appropriate to strengthen the wording, we should all agree that this should happen. When the legislation is passed, it will be powerful. It is not acceptable in a modern society that people could turn up in a classroom on a Monday morning unable to discuss the weekend out of fear. If section 37 is the reason for this, it needs to be addressed and that is why the legislation has been introduced. It is a pity that it has taken 12 months for Committee Stage to be taken but, hopefully, we will in the coming days be given a much clearer timeline regarding the passage and enactment of the Bill.
Senator Katherine Zappone's amendments are interesting and the case behind them is well made. I am sure the Minister will respond accordingly and I hope there will be a meeting of minds in this regard. The Chamber is supposed to foster and facilitate even more analysis of legislation than the Lower House and I hope we can reach a consensus on this because that would send a much clearer message from the Oireachtas on this issue about how far we have come as a society.
Cuirim fáilite roimh an Aire Stáit. I broadly welcome the Bill and thank Senator Ivana Bacik for bringing it forward. It is important for all those who are being discriminated against and it is essential that it be enacted quickly. We are all concerned that it has taken a year to take Committee Stage but we should move forward. Senator Martin Conway's reference to a stage like manner is apt because Sinn Féin shares the concerns that have been validly raised by Senators Averil Power and Katherine Zappone and we agree with the general thrust of their contributions. These issues need to be taken on board in the legislation and, therefore, we generally support the amendments. Perhaps the wording needs to be tweaked but we echo the concerns of groups such as Atheist Ireland, which has raised these issues with us. We reserve the right to table amendments on Report Stage if these amendments are not taken on board. However, we generally support the thrust of the words of Senators Averil Power, Katherine Zappone and others in this area.
I agree with Senator Ivana Bacik that this is an important advance but, at the same time, I am the only person who was a Member of the House when the original Bill was introduced, which was in its time an advance. The then Minister was Mervyn Taylor who is also a member of the Labour Party and an extremely decent and honourable man. When I challenged him on it, the reason he gave was the same as that given by Senator Ivana Bacik. He said: "This is as far as we can go at this time." I did not accept that then and I do not accept it now. It is regrettable that, following the public consultation, which was not particularly necessary and which was just a delaying tactic, we do not have the advice from that. We also do not have the advice of the Equality Authority, which was substantially weakened and damaged by the previous Government. I protested against this and I am sorry that it was gerrymandered with the assistance of the gay member on that board. That was an absolute disgrace. I tell the truth; I do not give a damn how uncomfortable how it is. The fact that people are gay does not make them immune from criticism. The removal of Mr. Niall Crowley was an absolute disaster for the authority's board. Let us ask from this session that we be presented with advice from the authority. What the hell else is it there for? What are its members paid for if it is not to provide advice on specific issues such as this? This is one of the most burning equality issues and we should not be deprived of this advice for some ridiculous reason. The authority's members have had a year. Let us know what they have to say. They are probably confused about all kinds of things.
I have a point to make on something I believe is a little disgusting. I know we are not supposed to use the word "disgusting" anymore, but I am politically incorrect. It is disgusting that we should ask people their religious beliefs. What does it matter? Why should one have to list one's religious belief when one applies for a job? On the census form, there was a question asking for one's religious belief. I am a religious person and put down "11.52 and 35 seconds" and that my current religious belief was such and such. It changes with my digestion, whether I have slept well, whether I have been to communion, etc. To take the Mickey out of the census form, I wrote all over it my current theological position, making reference to the patristic sources, etc., and my views on the existence of God.
When I was in boarding school and day school, one of which I loathed and the other of which I liked, we never asked our teachers their religion. We did not find out that the Latin teacher and geography teacher were Roman Catholic until we went to their funerals. We found that the funerals, instead of being in St. Bartholomew's or the cathedral, were in the Star of the Sea church or the Church of the Three Patrons in Rathgar. That is how it should be. These days, Roman Catholics are much better at Latin than individuals of my religion because there is a vestigial aspect. What does it matter if someone is an atheist, Roman Catholic, Buddhist, Jew or otherwise? If they teach Latin or history, it is grand. The requirement to state one's religion should be removed totally. It is irrelevant.
I thank everyone for their contributions. In 1997 I objected to the section of the legislation in question.
I would not doubt the Minister of State.
It just seems like this is Groundhog Day in that we are back here again. It worries me that what was done 20 years ago suddenly recurs. Let me give a flavour of the exact circumstances then. Much to the surprise of the lady who was giving out leaflets about me at my local church, I arrived for mass. She handed me a leaflet also. It stated I was trying to destroy religion in Ireland and turn all the children of the religious into atheists and that I should be roundly condemned. I think I was so condemned by many people, but the world has changed. It has not changed as much as we would like, but it has changed nevertheless.
This ultimately boils down to curricula vitae. I am never certain why people ask for one's religion or why one must state one's gender. I am never certain why one must state one's name.
One's name might be an indication of one's gender. We are a little off achieving my objective in this regard, but we will work towards it. As with today's contributions, we eventually get round to the right position.
I thank Senator Ivana Bacik and her colleagues for the opportunity to speak on this important Bill. They will know from my previous comments that I am very committed in this area. The Government welcomes the attention Senators have brought to the position of LGBT people in the teaching profession who may feel compelled to hide their real identity for fear of discrimination. The debate on Second Stage of this Bill clearly illustrates that there is extensive cross-party support for ensuring the equal rights of citizens, irrespective of their sexual orientation or religious affiliation, and for clarifying the law in this area. As I said when the Seanad last considered this Bill, in March 2013, the Bill and its intentions are commendable. Both parties in government fully support this initiative. The House will recall that the Government has undertaken, in its programme for Government, to ensure people of no faith or minority religious backgrounds and publicly identified LGBT people should not be deterred from training or taking up employment as teachers in the State. Both the Minister for Education and Skills, Deputy Ruairí Quinn, and I are committed to strengthening the statutory protection for equality in this area.
To give expression to the right to freedom of religion as guaranteed under the Constitution, section 37 of the Employment Equality Act 1998 was designed to allow schools and other institutions to maintain their religious ethos. When Senators were speaking, I recalled numerous delegations from religious orders explaining to me in detail the constitutional protection the Church has in regard to the exercise of their faith and their management of religious lands, as referenced under Article 44. It is clear there is a delicate balance to be achieved between the various rights involved, such as the right to earn a living, the right to self-expression and free association and the right to freedom of religion. That section 37, as it is, provides such a balance was the conclusion of the Supreme Court in its examination of this provision when the Employment Equality Bill 1996 was referred to it by the President under Article 26 of the Constitution. We must be mindful to ensure the amendments we will bring forward will remain within what is constitutionally permissible. There is an argument about this, but it is an argument to be had. There are competing rights at stake: the rights of freedom of religion and of association, on the one hand, and the right to earn a living free of discrimination, on the other. It is vital we get this right because failed reform would be in no one's interest.
The Minister for Justice and Equality, Deputy alan Shatter, the Minister for Education and Skills, Deputy Ruairí Quinn, and I share the concerns previously expressed in this House about the potential impact on LGBT persons of this section. We believe it is possible to draft an alternative solution that addresses this difficulty and respects all the fundamental rights concerned, and we are committed to finding it. It was for that reason the Government decided not to oppose the Bill on Second Stage.
Before turning to the work before us today, I want to update Senators on the work we have done since the Bill was first introduced in this House in March 2013. The Government, given the complexity of the issues involved arising from the competing constitutional rights and the need to balance those rights to protect the interests of all citizens, was of the view that a formal public consultation process should be undertaken. For this reason, immediately on naming the members-designate of the Irish Human Rights and Equality Commission last April, the Minister for Justice and Equality asked them to undertake such consultation and examine all the issues involved.
I understand the public phase of the process has been completed and that the commission is preparing a report on the outcome in addition to its own views on the issue for submission to the Minister for Justice and Equality, the Minister for Education and Skills and me, being the Ministers centrally involved. I understand the public consultation phase attracted great interest and a large volume of submissions. More than 60 submissions were received, and they are being examined. One will appreciate that considering this volume of submissions and framing its response was a significant task for the commission.
Nevertheless, I am delighted to able to inform the House that, just yesterday, the commission informed the Department of Justice and Equality that it has completed its analysis of the submissions received. It has agreed on a report taking account of the legal framework and the views received, and the report will be forwarded to the Department within a day or two. Senators will understand, therefore, why we believe it was necessary to await the commission's report before we moved any further with this Bill. As soon as the report is received, the Government will have an opportunity to consider it and to come back to the House with any detailed amendments to the Bill that might be needed. The issues involved are complex and we need to get it right. This addresses Senator Katherine Zappone’s concerns on what we know and the type of information and background data we need to have.
The institutional and individual stakeholders who have contributed to the consultation exercise have a legitimate expectation that their views will be listened to in the evolution of this legislation. I am conscious that this is the first issue on which the new commission has been consulted and of the need to cement a good working relationship with that body from the start.
As I said in the course of Second Stage in this House, it is the Government's intention to table a number of amendments to the Bill and strengthen it against any possibility of constitutional attack. Since the report to be received shortly from the Irish Human Rights and Equality Commission will be important in considering the best way forward and as we will need to consult further the Office of the Parliamentary Counsel and other Departments such as the Department of Education and Skills, I am not in a position to present any such amendment today. It is my intention that, having received the commission's report, the relevant Ministers and I will examine it in detail and, in the light of the Attorney General's advice, bring forward such amendments as are necessary.
This will be done as quickly as possible. For today, I have to say there is a possibility of amendments arising to each and every section of the Bill. I need to say this for procedural reasons. I also have to say I am not in a position to accept any of the amendments proposed to the Bill. I hope Senators appreciate the position we are in and will not press any of the amendments we have before us. Of course, Opposition amendments can also be held back for the next debate when I will be in a position to respond on points of substance. In the meantime, I regret that I am not in a position to give a detailed response today, but I assure Senators that the Government will be back with such a response as soon as possible. I believe there is no point in rushing the legislation as the issues are complex and we all want to get it right. We need to tease out all the implications and ensure our proposals strike the right balance between the different rights involved.
There are people who think that we have moved so far forward in this country that there will not be a response regarding the changes that we wish to make. I do not believe that for one minute. I refer to my experience of the original Bill in terms of the pressure that was put on people, the naming of individuals and going to areas where such people practised their faith and going to some, although not all, school meetings. Therefore, we need to get this legislation right and ensure it is robust.
I stress once more that I agree completely with the spirit of the Bill. I consider that this is significant issue in our current equality legislation, but we need to craft something that is workable and acceptable. As it was all those years ago, it is completely unacceptable that anyone should live in fear of their personal situation being revealed and possibly them losing their livelihood.
I will respond to the Minister of State's comments and not go over the ground covered. In terms of the original Bill being judged to be constitutional, she has acknowledged that it does not mean that other Bills, with different approaches, would not be found to be constitutional.
I express again, as I mentioned in my opening remarks, my concern about how long this process has taken. I agree with Senator Martin Conway that there is a need to have cross-party consensus on this issue, that this is precisely the type of issue that should not fall down on party political grounds and we should be able to reach a consensus.
I published the Fianna Fáil Bill in February 2012 but did not bring it before the House until the end of May. I wanted to spend time talking to Senators from different parties and to engage with the two Ministers involved. I discussed the Bill with the Minster for Justice and Equality with a view to trying to get consensus before we debated it in the House. It was during the course of those discussions that I became concerned that there was a desire to delay progress. When we debated the Bill in the House in May 2012, the Minister spoke in very similar terms to those used by the Minister of State today. With respect, I understand she agrees with where we are coming from on this issue and that she has fought the fight herself. Two years ago two Ministers came to the House and told us that they fully agreed with us in principle and wanted to enact the legislation as soon as possible but that we had to do X, Y and Z and jump through hoops first. I raised concerns then about the public consultation process. I said we could anticipate what would be said by those who opposed the legislation as their views were well known and, therefore, we should go ahead and draft legislation.
The parliamentary process involves Committee Stage and Report Stage and enables one to engage and redraft. People can also make presentations to the relevant Oireachtas committees and we can engage with them. I am utterly frustrated by the fact that we are still talking about further consultation and the report has not been published two years later. I heard that the report will be sent to the Minister of State, the Minister for Justice and Equality and the Minister for Education and Skills. Can the Minister of State tell me if the relevant Minister intends to the publish the report in order that we can all see it? Will all the submissions made to the Irish Human Rights and Equality Council be published? As far as I understand it, they have not been published. I was interested in reading particular submissions and searched websites but only found some of them. The Department of Education and Skills, when conducting a consultation process, tends to be quite good at making them available and puts all the submissions on its website. That means everyone can see what the other groups have argued and can respond to them, thus leading to a fully informed debate. Unfortunately, that has not happened in this instance. The consultation process closed in the middle of November, yet five months later we have not been able to see the submissions or the report. This is a very straightforward issue. I do not understand why there has been no progress in two years and I am deeply concerned. We are heading into yet another school year and still we have not changed the legislation, which is regrettable.
The Government brought forward legislation that necessitated us sitting here into the early hours of the morning at short notice. We did so to deal with far more complicated financial legislation and there was a will and a sense that work needed to be done. This legislation also needs to be enacted. We need the will to deliver on it. We must ensure we can get on with doing the work and not go on this endless train of consultation followed by more consultation. In the meantime, day in and day out, people go to their places of employment afraid to be open about who they are. In the evening they carry home that pain after doing a day's work and relive conversations they have had where they have lied about the gender of their partners. I have read a blog set up by a member of the INTO's LGBT group. She posted on her blog stories supplied by various female teachers who said that in the staffroom they must say "he" when they talk about their female partner. That is an everyday experience for hard-working teachers in this country. They are doing a great job teaching our children but must endure that upset and torment every day. Two years on, we are no closer to fixing their torment, which is wrong. We need to see a real will to push the Bill forward and finish it.
I concur with Senator Averil Power's observations that there should be cross-party consensus on the issue. The Minister of State has said she will return with substantial responses to the amendments in due course.
I disagree slightly with Senator Averil Power about the following. The legislation is probably a little more complicated than straightforward because we have spent the bones of an hour discussing three amendments. It is important to take time to discuss legislation. We should spend a lot more time discussing amendments because it will enhance the legislation and ensure it is foolproof.
I would sincerely like to see the Bill enacted before the next school term commences, which is a reasonable timeframe. I encourage the relevant Minister to move towards that timeframe. I would like to see the legislation enacted before we leave here at the end of July for the summer recess. If that was done then, from September onwards, the scenarios outlined by the INTO's LGBT unit would no longer exist. It would mean we could give people the legislative certainty that there would no longer be such discrimination. We have experienced a delay of 12 months with this legislation. I am not happy to stand over such a delay and will not stand over it. With a commitment by us all, particularly Senator Ivana Bacik, me, the Minister of State and others, we could push this on and have the Bill enacted by the end of July, which is a fair and reasonable time period.
I agree with my friend, Senator Martin Conway, that the legislation with amendments should be enacted by the end of July. It would be a very good day's work if that were done. Perhaps we might arrange to enact it on 31 July, my 70th birthday. It would make a nice 70th birthday present.
I will try to remember that date.
I accept and remember Mervyn Taylor making the point that he felt absolutely that the legislation was as much as he could get through, but that was 20 years ago. The authority of the Christian churches has been radically diminished by their moral equivocation and stark dishonesty on sexual matters. Just look at all the scandals.
People do not take them seriously in this because they have not told the truth. Had they done so - I am not confining this to the Roman Catholic Church - they would be in a much stronger position, but they are not. I say this as a practising member of one of these churches. It is remarkably convenient - I am sure it is just a coincidence - that after all this to do the report managed to come together yesterday, the day before this debate. I love these coincidences and in this situation it is quite fortunate, but can we have it? There will be a time lapse between the adjournment of this debate which I gather will happen today and then we will come back and finish this off and then move to Report Stage. I would like to think that in order to inform the debate this report would be made available to all Members straightaway because we need to have an informed debate. This would be useful to us in calculating our amendments and what we say in support of them.
I ask the Minister of State to ensure the Government's response will take into account not just this report but also the debate today because a number of points have been made on various sides that would help strengthen the Bill. The Government should consider these also.
It is important that the Government be visionary rather than defensive. I am worried about the defensive tone in the Minister of State's contribution in which she said:
It is the Government's intention to table a number of amendments to the Bill and strengthen it against any possibility of constitutional attack. However, since the report to be received shortly from the Irish Human Rights and Equality Commission will be important in considering the best way forward and as we will need to consult further with the Office of the Parliamentary Counsel and with other Departments ....".
There is a defensiveness about the possibility of constitutional attack. Let us grasp it. If somebody wants to attack it, that is fine. Let them be off. I am involved in a series of cases and have won quite a number of them. One in which I am involved is at the technical stage. I have one in the High Court. If the other side is appealed that actually suits me because I believe I am going to win in the Supreme Court. Whatever happens, that means the judgment will then be perfected in the law. It will then be immune to challenge and that is good. Leaving half finished business around is not a great idea. If a citizen, a group, or the church or some of my colleagues want to challenge this in the court, let us see it and then we will have the definitive argument. I am not worried about the constitutional issue. We should be brave, courageous and forward-looking at this stage.
The Minister of State has said she believes there is no point in rushing this legislation. If this is a rush, I would hate to see slow motion and if it is a rush, I hope I am knocked down by the Minister of State's car in a rush because I do not think it would do any huge damage to my delicate little frame.
I thank the Minister of State for her comprehensive response and for outlining what the Department has been doing. As the proposer of the Bill, I am more frustrated than anybody else in the House after a 13-month delay since Second Stage. I have been working very hard behind the scenes to try to move the Bill along.
We appreciate that.
It is hugely important that we move it on. It is also hugely important that it is robust enough to survive and not to be referred by the President, under Article 26 of the Constitution, before anyone has the chance to challenge it because people need certainty. I know Senator David Norris is more sanguine than most about being involved in litigation but the reality is that can drag on for years and, in the interim, people can be left in a state of uncertainty and the state of fear in which they are in and which others have eloquently described. We need to ensure it is robust and also that it is brought on swiftly.
Senator Martin Conway has proposed a very reasonable timeframe. It should be possible to keep within that timetable. I thank the Minister of State for saying she hopes to provide the report from the Irish Human Rights and Equality Commission to us later this evening or tomorrow if it can be done.
There is a process that has to be gone through, but we do not have a problem with making it available.
Certainly, it would be of assistance to all of us if not for Committee Stage, at the very least before Report Stage, that we would have it. We should all seek to ensure Committee Stage is concluded next week in order that we can move the Bill on. We also need to be clear about the knock-on effect that the Seanad processes have in terms of expediting and speeding up the process behind the scenes in government. It is hugely important that we also keep on track and conclude Committee Stage next week.
It is great that we have cross-party agreement on the spirit of the Bill. As Senator Averil Power said, it is a fairly simple proposition that people should not be discriminated against in the workplace on grounds of their sexuality, in particular. Having said that, it is complex legally to get a formula correct. That 60 submissions, one of which was mine, were made to the Irish Human Rights and Equality Commission shows how complex it is to achieve the purpose on which we are all united.
I thank the Minister of State for the sentiment behind the Bill. I respect the fact that Senator Ivana Bacik has been working hard in the background and that Senator Averil Power has been working on it for a couple of years. I have lived with the fear as well in the context of my own life. We need to get it right and it needs to be robust.
I have a question. I feel a little frustrated, as I am sure Senator Averil Power does, having tabled amendments. If we adjourn now, do we come back to Committee Stage and go through our amendments and not get any response from the Government because it has not had time to consider the Bill? I do not consider that is the most appropriate way to get this sorted because I can stand up and make my arguments and the Minister of State will say to us that she still needs to consider the response of the Irish Human Rights and Equality Commission. Is that really a proper Committee Stage? I do not know that it is. I do not know whether we should adjourn Committee Stage. Senator Averil Power also tabled some amendments for Committee Stage. That is my suggestion. I do not want to stand up and give my arguments for my amendments without having a response back from the Government. I do not think that is a proper way to make law.
We are suspending at 1 p.m. and I note there are three Senators wishing to speak.
I will not detain the House too long, except to commend Senator Ivana Bacik for persevering with the Bill and also compliment the lead speakers for all the parties and the Independents on their contributions. In particular, I support my party colleague, Senator Averil Power, who has put an awful lot of work into the Bill and whose frustration I strongly sense. It is an Alice in Wonderland debate as far as I can see. It is akin to two soccer teams going out to play and they kick about for ten minutes and then decide to go away, and nobody goes for goal. I am sorry for the Minister of State who has been sent on a pup's errand. She came into the House with one hand as long as the other. I have listened to many ministerial responses in my time. We will not play politics with the issue, but this has been pretty abject. The Government is stating it has nothing done, but now that the Seanad has kicked it up again, it will try to accelerate it.
Clearly, the Senator was not listening.
As Senator David Norris said, we have had some remarkable coincidental arrivals of reports today and we are going to get information tomorrow that I do not think would have been forthcoming were it not for this debate.
On a point of order, in fairness the Minister of State, Deputy Kathleen Lynch, outlined the timeframe.
That is not a point of order.
Before the next school term.
I am not being political. I do not think anybody will get away with this kind of thing again. Senator Martin Conway has given us a deadline before the next school term. If we could all work towards this, I am sure it would be eminently achievable, but, all in all, it is not a good day for the Government.
I agree with what the Minister of State has said with regard to the challenge. It is banishing two important aspects of human rights, one is the right of non-discrimination against people who are in employment. I also welcome the approach that she has embarked on, that of a consultation process, because there are constitutional issues involved. It should be thought out and done in such a way that takes account of those viewpoints and what we are about, particularly in the educational field. It is about the education of our children and it is important that we get that right and do not inject ideological issues into that for the sake of meeting certain ideological points.
For absolute avoidance of doubt, I fully support a situation where there is no discrimination against people, particularly single parents or people who are gay, in employment, teaching, hospitals or wherever else. That is an important principle that should be underpinned in legislation.
I know many gay teachers and many single parents who are currently working in denominational schools; therefore, it is happening in practice. I fully accept that does not mean the law should not be clear in this regard. What is at issue, however, and this is where the balance needs to come in, is that teachers' lifestyles can be a factor. Parents have a right to expect that teachers in their schools are not themselves proposing a lifestyle that runs contrary to the ethos of the school or contrary to parents' beliefs. The teachers' job is not to promote their own personal views on this matter. I have come across instances where unfortunately the particular lifestyle - it could be addiction or other things - leads to a serious effect on the education of children. One cannot have a system where people are protected purely because they meet some of these criteria where it can be used against them.
I am afraid that the time for this debate is up, as it is now after 1 p.m.
On a point of order, it was suggested that we could deal with Committee Stage next week but that we would not have the report by then. I would prefer to leave Committee Stage for a few weeks in order that at least we would be in a position to have a proper debate. I have a real difficulty with this because I put forward detailed amendments, as did Senator Katerine Zappone. However, how am I supposed to re draft the amendments for Report Stage if I have not heard a ministerial comment on them beforehand?
That is a matter for the Whips and the leaders.
I want to have the Bill finished in proper form as soon as possible. Instead of having another utterly uninformed and speculative debate next week, however, I would rather wait for two weeks and receive the report and the Minister of State could then come here to respond.
After the Easter recess.
Yes, let us do it on the Tuesday after the Easter recess. The Minister of State could then respond to each Committee Stage amendment tabled by me and Senator Katherine Zappone. We can deal with Report Stage two weeks after that. I do not see the point in rushing Committee Stage and having another speculative debate without a Minister responding.
The Senator can take it up with the Whips and the party leaders.
It will really hamper our ability to draft something properly for Report Stage that responds to the Minister of State's arguments because we will not know what her arguments are.
On a point of order, I have about one minute to finish. Would it be possible to have an extension of time because I think the Minister of State might want to come in also?
We asked the Minister of State for an extension, but she is doing a radio interview in a few minutes.
May I take it that Senator Jim Wash will be in possession?
Splendid, because I would very much like to hear his explanation of the relationship between sexual orientation and heroin addiction.
Senators Jim Walsh and Averil Power have both indicated that they wish to speak and it will continue thus when the debate resumes.
Let me make a helpful suggestion. Rather than setting a time now as to when the debate will resume in whatever format, we might tick-tack with one another in order that the report will be available and the Government's response will also be available. It is not up to me, but I am making that suggestion.
Is that agreed?
I would still push the idea that it should be the week after Easter because it would give us more time.
Let us discuss it with the Whips and the leaders in order to bring it all together.