I welcome the Minister of State, Deputy Kathleen Lynch.
Employment Equality (Amendment) (No. 2) Bill 2013: Committee Stage (Resumed)
Just as we concluded the last day, Senator David Norris asked me to offer an explanation of the relationship between sexual orientation and heroin addiction. As far as I am aware, there is no connection or relationship between them. I read what I had said and I never mentioned heroin. The point I made was that I am aware of a number of teachers who are single parents and who had their children while teaching and I am also aware of a number of teachers who are homosexual or lesbian. It is a matter of fact that is the case in some our schools, and I am actually talking about Catholic schools.
While this does not apply to either the orientation or the family circumstances of any individual teacher, it is imperative that a teacher is not allowed to promote either a lifestyle or an ethos which is contrary to the ethos of the school, if it is a Catholic school. It is also very important that nothing we do in legislation impedes the removal of a teacher where that teacher is failing in his or her responsibilities to give proper education to the children.
I would like to give absolute clarity where teaching capacity is affected with an example from my primary school days, which was a decade or two ago now. We had a teacher in second class and in fourth class who would arrive in the morning, in particular in the winter, with a hangover. We all knew we were in for some difficulties. He would use the side of the ruler on cold hands. His teaching and his attitude to the classroom were seriously affected by his drinking. At the time we were too young to appreciate the effects of the disease of alcoholism. Unfortunately, that poor man went on to suffer grievously from the alcoholism and subsequently committed suicide, which was very sad.
All I am saying is anything we do in these circumstances should not, in any way, result in a situation where people can hide behind what might appear to be discriminatory and where the school has great difficulty prioritising the children and, if necessary, taking whatever action is necessary against a teacher. It is important that is the case. Parents have a greater right than we have to an input into the quality and type of education their children receive.
The Eileen Flynn case is often mentioned in these debates. Invariably, I find it is mentioned by people who really do not know anything about the case. All they have are the headlines. I knew Eileen and know her partner. Eileen was a very fine person who many people locally and I liked and her untimely death was very sad. Eileen's issues were not so much about the fact she was pregnant but about the parents intervening because of concerns for their children and where they threatened to remove their children if the school failed to act. I will not go into the difficulties involved, which local people know. However, what I will say is that in 1985, I was running in the local elections and RTE sent a crew to New Ross to cover them. It selected New Ross because her partner was running, I think, for Sinn Féin. I recall going to a local establishment, which we usually frequented after our meetings, one evening and I was told the RTE crew had been there earlier that evening before it left to go to Wexford. It said it was never as ashamed of its profession as it was following what it discovered about the situation in New Ross, which was totally misrepresented in the national media.
On a positive note, about which I think everybody was very pleased, Eileen subsequently overcame whatever difficulty she was having and ended up teaching in the Christian Brothers school in New Ross and was a very effective and good teacher and a very fine person. If people use scenarios, they should at least go to the trouble of properly researching them.
We have received much representation from different groups, in particular, Atheist Ireland. I said in the past that I think atheists, like people of belief, are people of faith. It takes faith for somebody to believe there is a God and, equally, it takes faith to believe there is no God. In many ways, I feel reassured by Atheist Ireland because if there was no God, there would be nothing in particular to "atheiate" from.
I think the Minister of State's approach to this is correct and I acknowledged that the last day. There is the issue of religious freedom and the right of religious schools to preserve their ethos, in particular where the parents involved want to send their children to schools with that ethos. That must not be interfered with and it is imperative that is protected. There is also the right of people who work in any working environment but, in particular, in schools to be safeguarded against any discriminatory action by their employers where the quality of the job they are doing is good or where their teaching is good.
The challenge for all of us is to find a route that does not discriminate against the employees or against schools with a religious ethos.
I welcome the Minister of State. It is welcome that in the intervening period since our last discussion, the Irish Human Rights and Equality Commission published its report last Friday. This is an important development as the report has clarified what is required in amending the legislation, in particular, what is required of us under European law which is superior to all Irish law, including the Irish Constitution. The report addresses the concerns raised by the Ministers, Deputies Alan Shatter and Ruairí Quinn, about the legality of the Bill I put forward in 2012 on behalf of the Fianna Fáil group. The Ministers expressed concerns about the constitutionality of the Bill and whether it met our obligations under European law. We have been vindicated in that respect by the report because it makes clear that what is required of us is quite ambitious and we have a long way to go from our current legal position to ensure that we are living up to our obligations under European law.
The report also addresses the concerns raised by Senator Ivana Bacik when publishing the current Bill last year. On that occasion she explained to the House why the Bill was so conservatively drafted. She informed the House that she would have liked to go further but had been advised that the European Directive No. 78 of 2000 required a conservative approach. I do not for a moment doubt Senator Bacik's bona fides in that respect. I hope she will now be empowered by the Irish Human Rights and Equality Commission report to push for a more ambitious equality-based amendment of section 37.
That report makes it clear that both our existing law and the Bill before the House fall foul of our obligations under European law. The blanket distinction between public and privately-funded institutions is not consistent with the European directive because the directive makes no such blanket distinction between public and private institutions. The report also makes it clear that under EU law it is not permissible to use religion as an excuse to discriminate on the basis of gender, sexual orientation or any of the other protected grounds and the protected grounds cannot be interfered with. The exception to the religious ground will be very narrowly interpreted and any discrimination must meet the test set out by the European courts. There are no circumstances where action is permissible on the basis of the protected grounds. Fianna Fáil has put forward Committee Stage amendments to address both those issues.
The report proposes that discrimination on the grounds of religion or belief should only be permissible where adherence to a particular religious belief is a genuine, legitimate and justified occupational requirement. Those words are included in the provisions of the Bill.
There has to be a connection between the specific role and the requirement to be of a particular belief. Case law from other European member states indicates that a strict test will be applied by the European courts to any exemption. For example, the courts would be very unlikely to allow discrimination against a groundsman on the basis of his faith because there is no clear connection between the role and any religious requirement. There is a need for greater clarity with regard to the different types of employment in religious organisations and in schools and hospitals under religious patronage. There are different layers of employment, the first layer being ministers of religion, priests, rabbis, imams and other religious officials. Very few would argue that churches should not enjoy almost complete autonomy in selecting such people. Anti-discrimination legislation should not require the Catholic Church to recruit or train women - I wish this were the case but I appreciate that it is not our place to force it to do so. I do not think anyone would make an argument that it should be forced to do so.
However, the second layer of employment may contain people who may not be ordained but who perform tasks that are closely related to the religion, religious mission or church. It should be noted that in the United Kingdom when similar legislation was being tested, a man who had been refused employment as a youth worker by a religious organisation on the basis of his homosexuality, won his challenge and was awarded compensation because the court was not satisfied that there was a clear connection between the role and the requirement to be of a particular religious faith. The third layer of employment contains a wide range of other employees who occupy non-religious posts such as a groundsman, cleaners or administrators. Those type of positions have not been the subject of controversy. There has been debate in other countries such as the United Kingdom about employing homosexual people as youth workers and about workers in the second category of employment. Religious organisations might argue that such workers are not working as ministers but they are working for a religious organisation and therefore that they should share the faith in question but other rights come into play such as the right to earn a living.
There is likely to be a considerable clash of views in this country during the time this legislation is being discussed and amended, and thereafter, about such interpretations. There is likely to be a clash of views as, for instance, between myself and Senator Walsh, on the question of ethos and what the respect for ethos requires. The Irish Human Rights and Equality Commission report makes clear that we need to be more specific on the question of ethos as there will be very different interpretations in particular in the area of education. For example, the INTO represents teachers and the Catholic Primary Schools Management Association and other associations represent schools of a particular faith. There may be different opinions about the type of behaviour that would constitute an active undermining of an ethos. We must take care when using in legislation terms such as "actively undermining", "ethos" and "genuine legitimate occupational requirement". There is a need to ensure clarity as to their meaning. As legislators we cannot be overly-specific when drafting legislation but equally we cannot abdicate our responsibility and allow words to be put in legislation which are deeply controversial and then leave it to the courts to provide the definition. We have a long way to go to produce legislation that meets the requirements of the report of the Irish Human Rights and Equality Commission which stresses the need for clarity and legal certainty. It is in the interests of everyone to have that clarity, as much in the interests of the employer as the employee. There needs to be a shared understanding of what is required and the circumstances in which action can and cannot be taken against an individual. This is a requirement under European law.
The commission's report highlights the fact that the Irish Government has not released a recent opinion from the European Commission which expressed concern about our legislation because of the view that it would fall foul of European law. However, we have access to the recent opinion from the European Commission to the UK Government which was made public. In that opinion the European Commission stressed that the European Court of Justice has consistently held that directives must be implemented with sufficient clarity and precision to satisfy the requirements of legal certainty. In my view, neither the current legislation nor this Bill meets that test. We have a long way to go.
I am glad that the debate on the Bill is not being guillotined. The Irish Human Rights and Equality Commission report sets out a clear framework for how we should proceed. It states that this Bill would not meet our obligations under EU law and that it could possibly need to be amended out of all recognition before it is enacted. The amendments we have tabled anticipate some of the issues referred to by Senator Katherine Zappone in her amendments about religious grounds and my amendments deal with the public-private distinction and other protected grounds. I suspect the Government is reserving its right to bring forward a whole host of amendments on Report Stage. I suspect there will be a book full of amendments on Report Stage. I refer to my original intention when we discussed this issue two years ago.
I would like to see us work on this from a cross-party perspective where we can put all of our heads together and come up with legislation we are all happy with. The best way to do that is to bring forward new legislation on foot of the IHREC report. This Bill has only gone to Second Stage and we should produce new legislation to pass Second, Committee and Report Stages.
There is a lot of goodwill, knowledge and interest in this issue in the House. Some Members were here when the original legislation was passed in 1988 and objected to it at the time. Some people take a great interest in it but the Bill will not receive the same level of interest or contribution when it goes to the Lower House. As much as I want to see legislation passed as soon as possible and I wish we could have done it earlier, I want to see the right legislation passed. With dozens of Report Stage amendments all trying to do similar things with different wording, our final reading of the Bill will be on Report Stage and I am concerned that we will not have sufficient scrutiny of the final wording of the Bill. I would prefer to start afresh so we can produce acceptable legislation and work together to conclude it as soon as possible.
Each group made submissions as part of the IHREC process but, unfortunately, they have not been published. I ask the Minister to talk to the Minister for Justice and Equality, Deputy Alan Shatter, about that. In the education sphere, most submissions are published on the Department of Education and Skills' website in order that everyone can see where other groups are coming from. It helps us to have an informed debate and to see the extent to which we can reach consensus on some issues and understand the concerns of other groups. That has not been done in this case and I have only seen a handful of the 61 submissions. I urge the Department to put them forward.
It is essential the two Ministers respond formally and publicly to the IHREC report. I understand they will want to consult the Attorney General first but it is essential there is a proper formal response that everyone has access to so that we are not listening to a ministerial speech whenever the Minister comes into the House and responding straight away. The issues are more complicated and more important than that.
At the education committee meeting, which I have just come from, I proposed having a hearing on it and the committee agreed to do so in the first week of July. That is quite close but sufficiently far away to allow the groups to prepare for it. It will not add any great delay for us to do it. We used that procedure for the Gender Recognition Bill, the Bill dealing with school admissions and for other issues. I can see Senator Ivana Bacik talking to the Minister. For the most part, this is justice legislation but it is of particular interest to the education community and there is nothing to stop the education committee having hearings on the Bill. There is nothing to stop it having hearings while the legislation is in this House. We have hearings on issues of general concern, not just on Committee Stage. We bring in groups to hear their points of view. We must find a way to bring everyone around the table and come up with proper legislation that is as detailed as it needs to be and that provides the legal clarity required.
The IHREC report makes it clear that people cannot discriminate on the grounds of sexual orientation under European law, which shows us that we must deal with concerns of LGBT teachers about their identity in the classroom and in religious-run hospitals. In the past week, teachers have asked me whether, if we introduce legislation that provides that people cannot actively undermine the ethos, it means a female teacher in civil partnership getting married, going back into the classroom and responding to a question on why she is wearing a wedding ring by saying she married her wife at the weekend, is actively undermining the ethos. Senator Katherine Zappone has made this point. If a teacher, gay or straight, intervenes in a case of homophobic bullying and says that people cannot bully others because they are gay, that being gay is not grounds for discrimination and that everyone should be treated equally regardless of sexual orientation, is it actively undermining the ethos of a religiously-run school? Is it actively undermining the ethos of a religious-run school if someone is photographed at a marriage equality rally in the coming year? We need clarity on these issues and it is important we do so before finishing the legislation by teasing it out and making sure the legislation we end up with is fit for purpose. I want us to do so as quickly as possible and we will facilitate it on the Opposition side but I also want us to do our job correctly.
I welcome the Minister of State for the resumed debate on Committee Stage. I am glad that, in the interim, we have had the publication of the IHREC report on the issue of section 37(1) and how to address it in the context of the directive. I am glad the paper has been published and it is important to maintain the momentum. Maintaining momentum in the legislative process has a knock-on effect in other ways and this has seen the report published more quickly than it otherwise might have been.
I am wary of suggesting that we should wait for the publication of a new Bill because I know the kind of delay that can occur when we are talking about the Government putting a new Bill on a legislative timetable and having to get Cabinet approval for that new Bill. We have a Bill before us and it is not perfect. I said on Second Stage and again last week that it was drafted somewhat conservatively, in accordance with legal advice. I hope it can be strengthened and made more robust. We now have a pretty clear blueprint from the IHREC lawyers, Marguerite Bolger and Claire Bruton, whom I commend for their work. We have a clear blueprint and it gives us a clear indication of the kind of amendments required for the Bill, which are not extensive.
The recommendation paper sets out options and rules out all but the option taken in the Bill. It is helpful for all of us to see that it deals clearly with the issue of deleting section 37(1). A number of trade unions suggested section 37(1) could be deleted in its entirety. In a perfect world, that would be my view too but many of us were conscious the approach would not stand up to legal scrutiny. That is made clear in the recommendation paper, which also says that the best and most legally desirable manner in which to deal with the issues in section 37(1) are to amend it. They set out six issues that must be taken on board in drafting legislation amending section 37(1). A number of them have been incorporated into the text of the Bill before us.
Some amendment will be necessary and I am delighted that paragraphs 41 and 42 of the recommendation paper give the clear view that we should provide the same protection to those employed in institutions that are privately funded. There are models in other European countries, such as the Netherlands, where there is a distinction between private and public institutions. It is not the case that making the distinction falls foul of European law but we do not have to make the distinction and a more progressive way of amending section 37(1) is to delete the distinction. I am glad to see it and it will provide more robust protection to employees.
It also makes clear that the burden of proof must be on the employer, which is included in the Bill. No discrimination should be permissible where it constitutes discrimination on another ground. There are some areas in which the recommendation paper is somewhat less prescriptive than it might have been. On page 15, it refers to the genuine, legitimate and justified occupational requirement test, which is in the Bill. It says that consideration should be given as to whether this applies only to access to employment and whether this would be sufficient to satisfy the proportionality requirement. Clearly, that is a more progressive drafting and I would welcome the idea that it applies only to access to employment and, beyond that, there is less room for exemption for religious bodies. The report then goes on to say that to allow the discrimination beyond access to employment could be overly broad, although some consideration may need to be given to an employer's requirement to maintain numbers of employees of a particular religion at a particular level within an organisation. A decision will have to be made on that point and we should work constructively to do that where the report does not clearly give us guidance.
In paragraph 45 it raises a point, which I think Senator Katherine Zappone raises in an amendment, that there is a narrower provision in the equivalent Australian legislation saying that discrimination "in an educational institution can only arise in the context of "doctrines, tenets, beliefs or teachings of a particular religion or creed” ". It takes the view that this would be a suitable standard. Perhaps we could consider incorporating that into the Bill. That would give employees greater protection because it would further narrow the grounds of allowed discrimination.
There are several issues which require work but that will not require extensive amendments. Many of the six recommendations at the end of the paper have already been met. We need to amend the provisions on public and private institutions and I am glad about that. In general the position in the Bill is vindicated. It is the right legal approach.
There is a useful analysis of the directive and of Article 4(2). Last week we spoke about the language in the directive. Some of the language in Article 4(2) is permissive, for example, it uses “may” rather than “shall”. It is important to note the proviso at the end of Article 4(2) which is in prescriptive language that the directive "shall thus not prejudice the right of churches" etc. "to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos." The authors of the recommendation paper have quite rightly pointed out that the language of the directive overall means that in any amending legislation, "There is a need to balance conflicting rights between employers and employees, the interests of the religious institution, the protection of their ethos and the rights of all individuals to a workplace free from discrimination." It is important to get that balance right. We are well on the road to doing so.
I am very glad to have received communications from the teachers’ unions, particularly the Irish National Teachers Organisation, INTO, which stated they would welcome a little more time to consider the report. They are not pushing for Committee Stage to be concluded at this point. I am very grateful for this. I am also glad that we are adjourning rather than concluding Committee Stage today because the teachers’ unions recognise the need for a little more time. I stress a "little" more time.
I welcome the representatives from the Gay and Lesbian Equality Network, GLEN, who are in the Visitors Gallery. They take the same view, namely, that we need a little more time now that the report has been published. Let us keep the momentum. Last week, we all agreed that if possible we should seek to have the Bill become law in time for the next school year, in September 2014. The Attorney General will have to scrutinise the Government amendments and there is some uncertainty about the time that would take. Here in the Seanad we should be able to keep the legislative pressure up by scheduling Committee Stage for soon after Easter, and to have Government amendments, if not drafted by then, at least begun in order that we have them for Report Stage and keep the momentum up.
I am not a member of the Joint Committee on Education and Social Protection and that committee is entitled to do as it wishes but hearings that might delay the Bill’s progress through the Oireachtas would not be a good idea at this stage. There has been extensive consultation. It would be very helpful to see all the submissions, to which the recommendations paper refers, published. It would make reading the IHREC recommendation paper much easier if one could see the submissions. I made a submission, as I am sure many of us did. It refers to some submissions from unions of which we are all aware. It would be helpful to know what was the balance of submissions, the views taken and see some of the points made.
It is important to reflect on the paper, to welcome it and focus our minds between now and the resumption of Committee Stage after Easter, on how best to amend the Bill, to ensure it meets the standards set out in the recommendation paper and that we can ensure as extensive protection as possible for employees against discrimination in the workplace.
I am very familiar with the judgments in the Eileen Flynn case. Like many here I have read them several times over many years and know exactly the issues involved, as does the Minister of State. We would all want to make sure nothing like that could happen again to an employee and that employees would be protected in the future in the workplace against discrimination on the grounds of sexuality, sexual orientation or their marital or family status.
I have spoken so many times, over so many years, on this topic that I do not want to repeat myself. So much that is excellent has been said by my colleagues on all sides of the House that I welcome it and do not want anything I say to be redundant. I very much agree with Senator Ivana Bacik that it is important that this Bill be in place for the autumn school term, if at all possible. If we can amend it and make it better, so much the better. We must concern ourselves with what one of my colleagues continuously describes as "the chilling effect" of this, that and the other. I am always on the other side to him but there is a chilling effect because even though these clauses have not been activated, as far as I know, in this jurisdiction to permit discrimination, they are there, latent and dormant, and do create fear particularly in a minority that has been so discriminated against over 2,000 years.
I remember and was in this House when the Eileen Flynn case occurred. My recollection of it is vastly different from Senator Jim Walsh’s. I very much regret that he is not here to listen to my remarks but I am sure that he is somewhere listening to them or somebody will tell him about them and I hope somebody does. It was first suggested the parents objected. So bloody what? The parents should have been put in their box very firmly, if they made these objections. If, for example, they objected to black students being in the class, said they did not like it, that it was not good for their children, some of it might rub off on them, that would have been an ignorant, stupid and unchristian attitude and they should have been slapped into their place.
I have heard of hearsay evidence and things overheard in pubs and "dúirt bean liom go ndúirt bean léi" but this is the first time I have heard of an RTE television crew being overheard in a pub by third parties who said to a fourth party that they were more ashamed of this than of anything else. This is nonsensical stuff and would be immediately dismissed in a court of law as being hearsay of the most remote and nonsensical kind.
If this woman, Eileen Flynn, was fit to teach in a Christian Brothers school – and one wonders about the standards required when one considers the history of what occurred in these institutions – what made her unfit for the first position? There is an obvious lack of connection there. I am very ashamed of some of my middle class, bourgeois, professional colleagues. I do not refer to those in politics but in the law. I recall saying to friends of mine who are lawyers that this was an absolute outrage and they said "What about it? She is married to a Provo." I do not know whether she was. I do not care. It does not bother me. I do not care if she is married to a gorilla. She has rights inherently of herself. I thought that was a most outrageous attitude.
This is an interesting Bill. Senator Ivana Bacik says it does not go quite as far as she would like it to go. I have heard this argument so many times. I heard it 20 years when Mervyn Taylor made the point that it was impossible for the Government to go any further than it did. I have always liked to push and it is easy for me as an Independent to do so. That is part of the role of the Independents and I hope the Government does not manage in its efforts to extinguish Independents in this House which it is trying to do. It is part of our role to push even those of our colleagues who do good work, set the bar higher and say we must go as far as possible because eventually we have to reach a completely satisfactory situation.
Senator Averil Power has been a great champion, with others, and I note that it is largely women such as Senators Averil Power, Ivana Bacik and Katherine Zappone who stand up for the rights of gay people, including gay men. I am happy that they are in the forefront because possibly that makes me look moderate.
I do not know.
I hope not. I thank the Senator. Senator Averil Power gave me a document which I have just read, as I can speed-read, and certain elements interest me. It indicates section 37(1)(a) of the Employment Equality Acts 1998 to 2011 permit positive discrimination in certain circumstances by allowing more favourable treatment of employees or prospective employees, etc. It is arguable that this is not so offensive. Section 37(1)(b) is the really nasty and dangerous provision but even in the earlier part, the concepts of religious education, medical institutions or religious ethos are not defined. How can we operate legally in a position where the criteria upon which a court is expected to judge are not defined? There could be some difficulty in defining "ethos", "religious ethos", "religious education" or "medical institutions" but perhaps there could be a list.
I am very worried by the reference to paragraph (b) on page 4 of the Bill, and I hope to amend it by deleting it. It states: "Notwithstanding paragraph (a), where an educational or medical institution of the type mentioned in that paragraph is maintained or assisted by recurrent grants provided out of public funds", before giving a list of how these bodies can be exempted. I am fed up paying my tax euro to be discriminated against. If these bodies want to discriminate, they should hump off on their own and fund themselves. I do not want a red cent of my money being used to discriminate against me or anybody else on the basis of religious beliefs. It happens that I am a regular church-goer and I have a strong belief, for which I am very grateful. Others have very different views on this and the views of agnostics, atheists and everybody else should be protected.
Religious institutions of any kind, including those of my own church, should not be exempted because of some vague, fuzzy notion of ethos. As I have stated for the past 30 years, if people want to know about ethos, they should not look at some holy Willy prayer book or wishy-washy religious tract from any of the religions. The Bible stated "By their deeds shall ye know them." I am not specifically targeting the Roman Catholic Church but considering the record of this country, all the churches - perhaps with the exception of Quakers - have had their ethos categorised by subterfuge, cover-up and massive dishonesty on the subject of human sexuality. That is what ethos is about in the real world; it is about not telling the truth and frightening people. I hope Members will excuse a slight vulgarity - I will tone it down slightly - but they knew damn well from the Middle Ages that if one has people by the goolies, one really has their attention and can do whatever is required.
Like other colleagues, I have put down some amendments for Report Stage. They may be supplemental to those tabled by my colleagues, Senators Katherine Zappone and Averil Power. For example, I want to replace the phrase "religious" with "religious or belief-based" as I see atheism as a belief. It is quite a strong belief in defiance of much of the evidence. I can argue that philosophically some other day.
We will agree to disagree on that.
The Bill would also include the phrase "where it is reasonable to do so in order to maintain the religious ethos of the institution" and I want to weaken those grounds of discrimination to "where it is reasonable to conclude that performing the job concerned objectively requires the employee to particular religion belief". It would be morally bad and intellectually disgraceful, as well as imposing an incorrect burden on teachers and pupils, for example, to have somebody who is a committed atheist trying to teach the New Testament if he or she does not believe it. Children are not fools and will smell that straight away.
I have heard a little about the rights of parents from the type of people who used to say that they heard much about rights but what about obligations? If parents are so worked up about religious ethos, why is it not being given to children in the home? That is where I got my religious ethos, and I sure as hell did not get it from any of my schools. Parents have rights and obligations, and if they want religion to be clear to children and loved and respected by them, there is an obligation on parents to facilitate that. I take my job as a godfather seriously and would take it much more seriously if I was a parent. I will seek to add a provision stating "but publicly and lawfully manifesting a religion or belief shall not be grounds for undermining the ethos of the institution". The point has been made and if a person turns up at a marriage equality demonstration and is photographed there, why should that person be subject to discrimination?
That is basically what I wanted to say as I do not want to be tedious. I look forward to Report Stage of this very important Bill. I commend Senator Ivana Bacik for introducing it. It is interesting that it was proposed by the Senator and I presume there is Labour Party support for it.
I am very glad that is on the record.
It is a Labour Party Private Members' Bill.
Good for the Labour Party. Perhaps it will see the light and become socialist at last.
We always have been.
I have been listening very carefully to everything that has been said and I will keep my contribution short as I would prefer to hear what the Minister of State has to say about the issue. I get the sense we are broadly in agreement. There have been issues raised by the report published over the weekend by the International Human Rights and Equality Commission, IHREC. We support the thrust of what is being said in that regard. As has been admitted by Senator Ivana Bacik, there is a need for amendments of some sort; perhaps, therefore, we could get a sense of those from the Senator and the Minister of State. Will they take on board some of what has been said in order to move the debate along? We do not want to stall this Bill, which is important and should be moved along as quickly as possible. We could go around in circles for quite a while but I would prefer to get to the nub of the matter. Will the Government support the thrust of what is contained in the report and will it introduce Report Stage amendments to that effect? If not, we must rethink the issue.
We are having these longer speeches because the Irish Human Rights and Equality Commission designate has put out a report. It is in some ways its first piece of work related to legislation and I acknowledge the leadership of Mr. Brian Merriman and all of the staff. We should keep up momentum.
I agree with Senator Ivana Bacik and on reading the report I believe the body is calling on us to be technically correct and clear around two primary issues concerning the religion ground, and there may be some discriminatory treatment allowed on the basis of religious ethos, and only regarding a genuine occupational requirement relating to that ground. That is as I read the report and how I was following the issue in terms of advice received. I put forward amendments that tried to follow the EU framework, and that is why some amendments must try to do this. It is important for us to be aware of these issues.
I like the idea of a committee considering the matter, although it should not be a long or extensive process. If representatives of IHREC came before the committee, it would be interesting for us to tease out issues in creating Report Stage amendments. As it was not always clear to me where the various submissions fed into this opinion, such a process could be helpful.
I would be especially pleased to hear about some of the thinking behind the amendments tabled by Senator Averil Power on Committee Stage that might perhaps dovetail with the opinion coming from the Commission in order that we can move on and reach Report Stage.
I ask Senator Fidelma Healy Eames to be as brief as possible. I am not trying to curtail her, but I know the Minister of State is anxious for the debate to be adjourned at 4 p.m.
I will be very brief. I regret not being able to be part of the debate either last Wednesday or today because on both occasions I had to prioritise committees. It is one of the faults of the system to have these matters running concurrently.
This is interesting legislation. I have worked in schools as a teacher and a teacher educator and would not wish any teacher to feel discriminated against on the grounds of religion or ethos. I am deeply conscious that I have not heard the debate today as I was elsewhere, but it has been my experience as an educator that it is within the capacity of a board of management and a school to facilitate a teacher who does not wish to teach religion such that another teacher can take on that duty. I believe there is that capacity in the system. The Minister of State might respond to the point in her summation. Religion is not just about facts; it is about attitude and belief also. There is as much caught as is taught. I would welcome a response from the Minister of State in that regard. Our institutions, schools and colleges have the capacity to be able to have a teacher on the staff and at the same time to be able to facilitate that staff member such that someone else can take the class while he or she teaches another.
I do not know whether that is the case. I am sure schools make arrangements every day about teachers who are particularly good at teaching geography or have a particular interest in history or maths – we all know some teachers are better than others at maths – and I am sure it is the same in the case of religion. As Senator David Norris correctly pointed out, both today and on the previous day, one will know very quickly whether someone has a particular interest. I do not mean someone who is particularly good at something, but it is obvious when someone has an interest.
I hope I will not have to read my prepared speech. I am not great at reading official speeches. However, if I have to do so, I will.
Will we take it as read?
The Minister of State should be allowed to conclude, without interruption.
Because the Irish Human Rights and Equality Commission designate is completely independent we cannot force it to publish the submissions, but we could make the request and see what comes of it. I am sure it will not have any great objection. It is important that we waited for the contribution of the commission designate because it has brought a new focus on where we need to be and the issues we must deal with also. However, it is simply an opinion; it is not the definitive legal position. Because of this we will now have to go to the Attorney General with a list of questions on the legislation arising from the contributions made and the opinion given. We cannot determine the length of time this will take. There are always issues that might arise that could take priority, but we will not allow the matter to rest. We will continue to apply pressure.
I am not certain when the Government amendments to the legislation will be ready. I would not like to mislead anybody by giving guarantees in that regard. It would be lovely if we could have them for the next school term, but I do not think that can be guaranteed by anyone because it will very much depend on the speed with which the Attorney General can make a response and what the Government’s position will be as soon as that is presented with the information. That is the normal and natural course of events.
I very much thank Senator Ivana Bacik and everyone who has made a contribution to this legislation which is hugely important. It is about a significant cohort of Irish citizens who find themselves in a position where they cannot fully be themselves and where they cannot fully express their own identify within their work environment. It is important we ensure people, both male and female, feel protected. As elected representatives of whatever nature – Independents or party members – in both we Houses are very privileged. That is why the protection we have for what we say is called “privilege”. We should recognise what it means. It means that we must be careful about how we speak about those who do not have that privilege or protection.
I am very conscious of Eileen Flynn and the circumstances in which she found herself, but it is not just that, she has a family who are still living normal lives, as we all do, of which we must be very cognisant. We must be very conscious not to make the type of innuendo that is unexplained and could be made about any one of us – God knows, it probably has been done – but not in an arena such as this. We must be conscious of the privilege we have. I wish people the very best in the future. Those who suffered in the past are probably more delicate than the rest of us and we need to be careful. People should be reminded continuously of the privileged position they hold.
I thank Members for their co-operation. The suggestion made of a cross-party group to discuss the legislation is very important. It is a very good one. When the Government comes back with its amendments, having gone through the process, I hope we can have a civilised discussion, as has been the case to date.
I move amendment No. 4:
In page 4, to delete lines 1 to 4 and substitute the following:
“(ii) it takes action, on the religion or belief ground, which is reasonably necessary to prevent an employee or prospective employee from undermining the religious ethos of the institution, and that, by reason of the nature of the employment concerned or the context in which it is carried out, the action taken is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.”.
There is some legal logic behind the amendment that has a lot to do with the use of the EU framework directive that the Irish Human Rights and Equality Commission designate has encouraged us to use.