Equal Status Bill, 1999: Committee Stage.

Section 1 agreed.
SECTION 2.

Amendments Nos. 1, 2 and 3 are related and may be taken together.

I move amendment No. 1:

In page 6, subsection (1), line 13, to delete "resident".

I wish to raise a general point about the Minister's amendments which were circulated yesterday morning. This allowed us very little time to deal with substantial changes to section 21. I submitted amendments late last night to section 21 which I understand will be circulated today. Will the amendments be considered.

Yes, they will.

Amendments Nos. 1 and 2 relate to the definition of the words "family status". I am concerned about that the word "resident" which is included in paragraph (b) as well as in the subsection I propose to delete in amendment No. 2. It was brought to our attention by the Irish Council for Civil Liberties that the definition which includes "resident" in relation to family status is rather narrow. They are concerned that there may be situations where a care giver might not be resident but should be included in the definition of "family status". They also pointed out that while in gay and lesbian relationships the care giver might not necessarily be resident, they would be giving the necessary care. Therefore, they are anxious that the definition of "family status" should not include the obligation to reside with the person being cared for.

I welcome the fact that the Bill is in committee. However, despite our economic progress, there is a lot of discrimination which must be addressed. I hope we can make the Bill as strong as possible. I welcome the Minister's amendments but I would have liked more time to consider them.

This issue hinges on the definition of "carers" being restricted to a parent or a resident primary carer. Why is it necessary to restrict the protection to such a narrow group of carers? Such a narrow focus may serve to discriminate against certain people who are carers but who are not catered for in the definition in the Bill. Obviously the aim of the amendments is to broaden out carers who would be protected under the scope of the Bill.

The definition of "family status" was altered from that in the Equal Status Bill, 1997, specifically to align it closely with that of the Employment Equality Act, 1988. Apart from the inclusion of "pregnancy", for reasons arising from EU case law history to general discrimination under the Employment Equality Act, the wording is identical to that in the Employment Equality Act. The proposed changes would create an unwarranted divergence between the definition in this Bill and that of the Employment Equality Act. If the primary carer did not have to be resident, as proposed in Deputy O'Sullivan's amendment, more than one person could be deemed to be the primary carer of the same person. In that context, it is not apparent to me how this amendment applies only to people who are gay or lesbian. The situation is that a person could be a primary carer, have a different sexual orientation and not be resident. Irrespective of the sexual orientation of the individual, the fact that the person would not be resident would lead to a situation whereby a number of people could be deemed to be the primary carer. Clearly this would not be desirable.

Regarding Deputy Fitzgerald's amendment, I appreciate the motivation underlying it but it seems that this would actually confuse the definition. In those circumstances, I cannot accept the amendments.

I was not saying that it would only apply to those in the gay and lesbian community. The representations made to us suggest that it would be of particular concern to people in that community. I understand the Minister's point that more than one person should not be defined as the primary carer. Could there be some other wording so that that one person would not necessarily have to be resident? It is the residency aspect that concerns me.

There would be many people in a situation of primary caring and it would be easy enough to work out that they were the primary carer even though they were not resident with the person they were looking after. I would like the Bill to cover these people.

The difficulty is that I would end up with a number of primary carers in at least some instances. This would cause a divergence between the equal status legislation and the employment equality legislation. I must stress that I do not want to deviate from the Employment Equality Act which was considered by the Supreme Court. Members will recall that the Equal Status Bill was also before the Supreme Court but only the Employment Equality Act, in all its respects and complexities, was considered by the Supreme Court. There were consequential matters which were clear to us as being unconstitutional in the Equal Status Bill following the judgment of the Supreme Court in regard to all the contents of the Employment Equality Bill. All the contents of the Equal Status Bill were not considered. We know that this definition did not meet with any adverse comment from the Supreme Court. I am anxious to ensure that legislation such as this, dealing with equality in the provision of services, should, in so far as is possible, run parallel to the provisions in the Employment Equality Act which deal with equality in employment.

It may be that there is more scope there than we are allowing for. Given that this Bill was not examined in detail by the Supreme Court while the other Bill was, to some degree we are operating in the dark in relation to the constitutionality or otherwise of the Bill. It would be preferable to make the Bill as inclusive as possible, given the problems that exist and the background against which it is being introduced. I appreciate the point the Minister is making but I do not think it should be beyond the realms of possibility to have a definition of a primary carer that would satisfy the requirements we are putting forward.

It is a bit like the ruleprimus inter pares. The reality is that we cannot have several primaries, unlike elections in the United States, we can have only one primary carer here. To narrow the definition and give a degree of certitude, I have said it will be the resident primary carer. I am anxious that the legislation follows the regulations in the Employment Equality Act. We will have to agree to disagree.

Will the Minister consider this before Report Stage to see if there is a form of words which would accommodate his view and ours, that there would not be more than one primary carer, but that person would not necessarily have to be resident?

I will look at everything, but I am doubtful about it.

The Minister had an opportunity to discuss this with the Carers Association, an expert group in the area which could come up a definition of primary care.

I assure the Deputy that I met groups in connection with this legislation in the past two years and officials in my Department, over a more protracted period of time, have consulted interested groups about the legislation. There was a high level of consultation before the final drafting of legislation. The legislation also went to the Supreme Court along with Employment Equality Act, although it was not considered in detail there.

The phrase "resident primary carer" closely follows the wording in the Employment Equality Act which did not find unfavourable comment in the Supreme Court. That indicates to me that the court will not be unimpressed by the language.

Amendment, by leave, withdrawn.
Amendments Nos. 2 and 3 not moved.

Amendments Nos. 11, 14 and 91 are related to amendment No. 4, amendments Nos. 12 and 13 are cognate to amendment No. 11 and amendment No. 28 is an alternative to amendment No. 14. Amendments Nos. 4, 11 to 14, inclusive, 28 and 91 will be taken together by agreement.

I move amendment No. 4:

In page 6, subsection (1), line 30, after "it" to insert "or in relation to persons against whom prohibited conduct is or has been directed".

This would restore a provision that existed in the 1997 Bill which was not proceeded with because of the Supreme Court interpretation. That provision included persons in organisations while the Minister's Bill includes organisations only in so far as the obligations of the Bill go. I want to ensure that the benefits of the Bill apply to organisations as well as its obligations. If an organisation is being discriminated against, I want to ensure the benefits of the Bill apply to the full organisation not just to the individual. I accept that is included in terms of the obligations but I am concerned that it is not included in terms of the benefits. That was an aspect of the original Bill and there is no reason it should be watered down.

In cases of discrimination it can be difficult for the individual to take a case. The solution to this was contained in the 1997 Bill. The amendments would ensure that an organisation would have as much protection under the Bill as an individual.

I understand why Deputies wish to make these amendments to extend the prohibition on discrimination to organisations and groups as well as to individuals. Under the 1997 Bill, it was intended that an organisation which was discriminated against because of the nature of its membership, for example an organisation representing racial minorities or the travelling community, could bring a claim based on this. When the 1997 Bill was referred to the Supreme Court, opposing counsel cited the drafting of section 3(1) of the 1997 Bill as meaningless, a criticism which was upheld in our subsequent legal advice. Since the discriminatory grounds are that one is a man and the other is a woman, it does not make sense to apply these grounds to organisations. Not only did the inclusion of organisations present difficulties in drafting, it is arguable that such a provision as contained in the 1997 Bill might be as protective of an all male or racially exclusive organisation as it would be of an organisation representing the travelling community or racial minorities.

For these two reasons, the present Bill does not apply to discrimination against organisations but only to discrimination against individuals. I cannot accept amendments that would attempt to reinstate organisations in the 1999 Bill in the clause setting out the definition of discrimination. Under this Bill, however, it will still be possible for an individual who encounters discrimination, for example, as a member of an organisation for ethnic minorities, to bring a claim of discrimination on an individual basis. The issue of representation of individuals by organisations in cases before the director is an entirely separate matter which I will deal with when considering a later amendment.

If an organisation if being discriminated against, how can it use the provisions of this Bill to address that discrimination?

The point raised in the court was that the definition was meaningless. It reminds me of a discussion I had with Senator Norris in the Seanad about the issue of marital status. Irrespective of one's sexual orientation, one is either a man or a woman. By logical extension, one is an individual and, therefore, while a person may be a member of an organisation, he or she remains a man, woman or individual. In those circumstances, if the organisation is being discriminated against, since the organisation is comprised of men or women, any man or woman in the organisation can go to court on the grounds that he or she is being discriminated against when the organisation is being discriminated against. It is logical. In those circumstances, it was held that the definition in the previous legislation was meaningless.

There is a difference between and individual being discriminated against and an organisation feeling that there is discrimination against it as a groupper se. One would expect legislation of this sort to allow a group to take a case if it felt it was being discriminated against. I would be concerned if the net effect of amending the Bill would give protection to groups which were discriminatory but the other provisions of the Bill should ensure that would not happen.

It can be difficult for an individual who is being discriminated against to take a case because of the resultant pressure. Often individuals need the support of organisations. I do not say the Bill will stop individuals getting this support but a provision which would allow a group or organisation to take a case would strengthen the Bill. It would allow for cases arising on an initiative other than an individual one. If the proposed provision were in the Bill it would strengthen groups and organisations. A statutory provision which gave them the opportunity to take up an issue of discrimination would give them much more hope in dealing with it.

I said earlier that the Supreme Court had considered this legislation. It was, in fact, the Employment Equality Bill which was considered. The issue of organisations was cited by opposing counsel, as I said earlier. The conclusion drawn, and which the Government's legal advice upheld, was that an organisation was a meaningless phrase. A person who is a member of such an organisation has the right, if the organisation is being discriminated against, to bring an action in his or her own right because the individual is a member of the organisation which is being discriminated against. Section 3(2) sets out the discriminatory grounds. One of these is the gender ground which arises if one person involved is male and the other female. The other grounds are set outseriatim. There is no disadvantage accruing to any member of an organisation by leaving the definition stand and I have outlined the reason for that. If I were to put in a provision relating to organisations at this point, my advice is that this would present extreme drafting difficulties, would be meaningless and might be as protective of an all-male or racially exclusive organisations as of an organisation representing travellers or another minority. I have a difficulty with regard to the proposition being put forward.

It was necessary to redraft the legislation to meet the new position and we dropped the term "organisaton". There was a time when my officials and I would have argued the case being made by the Deputies but experience and hard learning has taught us differently. That is why there has been an about-turn and I admit that is the position. I empathise with what the Deputies propose but experience and advice indicate that it would not be the best way to proceed now.

Amendment No. 91, proposes that where a person makes a successful claim on behalf of an organisation any compensation should be paid to the organisation. If the amendment is not accepted and the definitions are not changed how will the legislation work in practice? If, for example, a hotel will not allow a gay organisation to hold a meeting in the hotel a case would have to be taken by an individual. It might happen that this individual would be paid compensation even though the offence had been committed against the organisation. I accept the Minister's reasoning that one is either a man or a woman but in many cases a group of men or women are discriminated against and not an individual. In the case of services, it is often a group of people rather than an individual who are discriminated against; in the case of employment it is more usually an individual. I can envisage many situations where a group of people might be discriminated against under one of the nine grounds referred to in the Bill. It is not right that only an individual within that group can be compensated.

In section 3 of the Bill discrimination is taken to occur where on any of the grounds specified in section 3(2) which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated. The discriminatory grounds are set out and the very position put by Deputy O'Sullivan arises. One of those discriminatory grounds is that the person is of a different sexual orientation - this is known as the sexual orientation ground. In the case of a gay organisation which is prevented from holding a meeting in a hotel, any member of the group may decide to bring an action and he or she may decide to settle the case. The fact that the individual settles his or her case does not preclude another individual in the group from bringing another case. The fact that one person brings a case and settles it or succeeds or fails does not prevent any other member of the group from taking a case. It may well be that another member of the group may follow the precedent of the first member but that is a matter for him or herself. Any person is at liberty to take an action if he or she wishes. If he or she does not wish to do so he or she need not.

Does the Minister not accept that to grant this right to a group rather than to an individual would strengthen the rights of the individual within the group? The argument regarding male and female is neither here nor there. We are concerned here with groups and organisations as we will be concerned with clubs at a later point in the legislation. Giving rights to an organisation surely strengthens anti-discrimination legislation. It is sometimes very difficult for individuals to take cases and it would strengthen organisations if they were able to take cases. I accept the point that an individual within an organisation may take a case but it is often groups and organisations who are discriminated against.

It would also save the time of whoever must make the decision not to have to deal with several individual cases.

When the Bill was being considered the view of opposing counsel was that section 3 as drafted was meaningless because of the inclusion of the word "organisation". Our counsel upheld the view as expressed by the opposing senior counsel. An organisation need not be a legal person. We must accept that a group of persons need not constitute a legal person. If a person is a member of a group which has been discriminated against all the individuals within that group may take an action. The court can hear all the actions together. When an individual brings a case of this nature the court will follow the decision in the other cases for the simple reason that precedent is an intrinsic part of our legal system. I do not see any danger to organisations from the legislation. I am fully satisfied that each member of the group will be in a position to institute proceedings. If all the group take an action each of them will be encouraged by the others' fortitude.

It is my understanding that the legal advice relates to the Equal Status Bill. There is a difference between employment and services in this matter. Usually in employment one is dealing with individuals whereas in services one is often dealing with groups.

I hope this point will be addressed by the Minister.

Amendment put and declared lost.

We now proceed to amendment No. 5. Amendment No. 6 is an alternative, amendment No. 45 is related and amendment No. 44 is related to amendment No. 45. Amendments Nos. 5, 6, 44 and 45 may be discussed together.

I move amendment No. 5:

In page 7, subsection (1), line 1, before "or" to insert ", statutory services".

What services are covered by the Bill? Section 5 restricts the definition of "service" to business or trade. There is a fear that Government services will not be covered. Many of the groups we are concerned with, including people with disabilities, members of ethnic minorities and asylum seekers, have many dealings with the State. The primary purpose of the amendments is to ensure statutory services will be covered by the Bill.

My amendment is similar to Deputy Fitzgerald's. The various bodies which have made representations to us, particularly those which made oral presentations recently, are strongly of the view that there is a need to specify that public bodies come within the scope of the Bill. The National Consultative Committee on Racism and Interculturalism cited the Stephen Lawrence inquiry in Britain as an example in recommending the inclusion of the police and the Customs service. Other examples were given by the Irish Council for Civil Liberties and other organisations. Organisations which represent those who are likely to suffer from discrimination fear that public bodies will be able to argue that they do not come within the scope of the Bill. It is important, therefore, to specify that they do.

I am aware that concerns have been voiced about the application of the Equal Status Bill to the State and that section 5(2)(a) in particular has led some to believe that the State is excluded. Last week I had a meeting with representatives of Pavee Point on this issue. There is no doubt that the equal status legislation will apply to the State. We are advised that following the 1993 Supreme Court judgment inHoward v. the Commissioners of Public Works it is neither necessary nor desirable to state in legislation that the State is bound thereby. In Ireland the doctrine of Crown prerogative, whereby the State is not bound by any statute which does not include it expressly or by implication, did not survive the enactment of the Constitution of Ireland in 1937. The uncertainty which had surrounded the issue was finally laid to rest in the landmark Supreme Court judgment in Howard v. the Commissioners for Public Works, 1993 - ILRM, page 665 - in which it was held that the State was bound by the planning Acts and was obliged to apply for planning permission before building an interpretative centre. Accordingly, it is unnecessary to state explicitly in legislation that the State is bound thereby. It is undesirable to do so in the same way as it is undesirable to purport to implement Council regulations by way of domestic law.

"Service" is defined in section 2 as a service or facility of any nature which is generally available to the public or a section of the public. This wide definition applies to public services as well as to those provided by the private sector. The application of the legislation to public services is reinforced by the wording of section 5(1) which provides that it is irrelevant whether the services are provided for consideration or otherwise. The reference to the State in section 14(a)(iii) also underlines this point. It is clear therefore that the Equal Status Bill applies to services provided by the State. As advised, it is neither necessary nor advisable to say so.

Section 5(2)(a) has led some to question whether the Bill excludes State provided services. This paragraph was intended to ensure actions of an informal neighbourly character, such as giving neighbouring children a lift to school, were not covered by the Bill. The phrase "business or trade" was intended to include the business of Government and it was never designed to exclude services provided by the State from the ambit of the equal status legislation. I am satisfied that the definition of "service" in section 2 and in particular the phrase "which is generally available to the public or a section of the public" adequately defines the scope of the services covered by the Bill and that the further amplification provided for in this paragraph is unnecessary and can be deleted. I hope this helps to reassure Deputies that the provision of services by the State is covered by the legislation without the necessity for amendments.

Section 5(2)(a) refers to, "the disposal of goods, or the provision of a service, otherwise than in the course of a business or trade". The Minister said that the phrase "business or trade" includes the business of Government but that is not clear from the Bill.

That paragraph is being deleted.

Is that amendment being discussed?

We are discussing four amendments, amendments Nos. 5, 6, 44 and 45. To eliminate the confusion, section 5(2)(a) was intended to ensure actions such as giving a neighbour's children a lift to school, for example, would not be covered. The phrase "business or trade" was intended to include the business of Government. In other words, it was never the intention——

To narrow it down.

Exactly. I am happy that the definition of "service" in section 2, in particular the phrase "which is generally available to the public or a section of the public", adequately defines the scope of the legislation. There is no need to further amplify it in section 5 (2) (a). Deputy Fitzgerald's point is that it is contradictory. I accept that, and that is why I am agreeing to delete it and leave it as it stands.

I would still make the point that in relation to the definition of service which is generally available to the public or a section of the public, when one looks at subparagraphs (a), (b), (c) and (d), nowhere does it say "services provided by the State" or "statutory services". It could be argued that the phrase "generally available to the public" covers it. However, the words "statutory services", as I suggest in my amendment, would ensure a clarity that is not in the Bill as presented.

There are services which are provided by the State which may not necessarily be statutory. The definition here is quite broad in the sense that the State is involved in services which are available to the public in general terms or to at least a section of the public. The definition is, therefore, adequate. To eliminate confusion I said I would delete section 5 (2) (a). This meets the demand. The position as outlined in section 2 is more general and more broad than Deputy Fitzgerald's suggested change.

I am suggesting it as an addition. I am not suggesting anything should be deleted. Inserting "statutory services" does not change what is already in. It just strengthens and clarifies it.

To be fair to Deputy Fitzgerald, I accept it does not, but I am strongly advised by the Parliamentary Draftsman's office that what I have here is broad enough in scope to cover Government services of every kind which are available to the public in a general way or to a specific section thereof.

Many organisations who made submissions felt concerned because inevitably, it is often in respect of Government services that there will be questioning and concern about whether they have equal access to them and about possible discriminatory practice. It is important that this should be spelled out in the Bill. I accept the Minister has been advised that it is not needed, but the question is arguable. Putting in "statutory services" makes it very clear. One cannot say there is a case precedent. On the other hand, we want to make it absolutely clear in the Bill. Reading the section it still looks like private services as opposed to Government or statutory services. Why not put it in when it really clarifies it and gives reassurance that it includes statutory services. We put in banking, insurance, grants, loans, credit, entertainment, recreation, cultural activities, transport or travel, or a service or facility provided by a club. Why not put in statutory services?

Let me go back to the Stephen Lawrence inquiry in Britain. There they also thought the existing legislation covered the police and other state bodies. However, civil liberties organisations in Britain subsequently recommended that legislation should be tighter in terms of defining that state services were included in relation to this kind of legislation. Could we learn from what has been said about the British situation and be absolutely certain? I accept that the Minister has been advised that the definition is adequate to cover State services, but a situation might arise where that might be in doubt. This concern is the result of a genuine fear that the Bill is not tight enough in that regard.

I want to reiterate that point. The submissions we have received are asking what lessons have been learned from the Stephen Lawrence case. Clearly what they are saying is that institutional racism was the problem. For that reason the Home Office decided to introduce a Bill to amend the Race Relations Act and extend its application unequivocally to all areas of Government and the Executive. The same issue arises in this Bill. We have to be clear in the wording of the Bill that it does apply to any services that are supplied by the State. I take the Minister's point about taking out business and trade. However, it is not clear enough. Relying on precedents quoted by the Minister is not enough. It should be stated clearly that if the discrimination is in a service supplied by the State a case can be taken.

I am aware that UK case law restricted the application of anti-discrimination legislation to public services which have a parallel in the marketplace. I am strongly advised that a similar limitation would simply not apply in this jurisdiction. The United Kingdom judgments were delivered against an entirely different legal and constitutional background than currently obtains here. Furthermore, the UK legislation itself did not define a service but only offered examples, whereas the equal status legislation now before the House very clearly defines a service as a service or facility of any nature. For all those reasons I do not believe the Lawrence case could occur here. I am completely satisfied that State services are covered by the terms of the legislation as drafted and as amended on the lines I have already put forward. Nonetheless, I am aware of the concerns of various organisations whose representatives I have met. As they have made clear to Deputies Fitzgerald and O'Sullivan, they were of the view that the legislation was not explicit enough. This is a matter which we did take up with the Attorney General's office. The Attorney General was of the view that the proposed amendment was not only unnecessary but undesirable.

Nonetheless, I take it on board that this legislation is obviously for the general public. It is important that they understand explicitly what is in the legislation. In those circumstances, I will undertake to go back to the Attorney General's office and seek further clarification in the matter to see if we can be more explicit along the lines suggested by Deputies Fitzgerald and O'Sullivan or along different lines. I take on board the points being made. I am advised that the suggested changes are neither necessary nor desirable. However, people are entitled to feel comforted by the legislation as it applies to them. In those circumstances, I will see what I can do to ensure that they are comfortable with it in the context of the arguments put forward by Deputies Fitzgerald and O'Sullivan.

I would have requested a vote on this, but given the Minister's willingness to re-examine it and to try to ensure that there is more clarity in the legislation, I will not push it to a vote at this stage. I hope the Minister will be able to find a wording that makes it absolutely clear that this legislation covers services provided by the State.

I reiterate what Deputy Fitzgerald has said. I thank the Minister for taking the points on board and hope there will be wording available.

Amendment, by leave, withdrawn.
Amendment No. 6 not moved.

We come to amendment No. 7 in the name of the Minister. Amendment No. 8 is cognate and amendment No. 9 is related. Amendments Nos. 7, 8 and 9 will be taken together, by agreement.

I move amendment No. 7:

In page 7, subsection (1), lines 1 and 2, to delete "generally available to the public" and substitute "available to the public generally".

These amendments are intended to make textual improvements to the definition of service and to clarify its scope. Amendments Nos. 7 and 8 are of a drafting nature while amendment No. 9 serves two purposes. First, it removes the reference to a service provided to a person under a contract of service. Since a contract of service is coterminous with employment, the exclusion from the equal status legislation of matters covered by the Employment Equality Act automatically excludes services provided under a contract of service. The reference to a contract of service is, therefore, redundant. It has caused confusion among some interests, so I propose to delete it. Second, it ensures that occupational pension rights are not treated as a service for the purposes of the Equal Status Bill. It should be noted that only occupational pension rights as defined in section 2 of the Employment Equality Act are excluded from this amendment. Pension or annuities other than those flowing from an occupational pension scheme are covered by the Equal Status Bill.

Amendment agreed to.

I move amendment No. 8:

In page 7, subsection (1), lines 12 and 13, to delete "generally available to the public" and substitute "available to the public generally".

Amendment agreed to.

I move amendment No. 9:

In page 7, subsection (1), to delete lines 16 to 18 and substitute "but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;".

Amendment agreed to.
Question proposed: "That section 2, as amended, stand part of the Bill."

There was a question of the definition of disability and there are no amendments on that matter. Some concern has been expressed that the definition of disability is different in this Bill to that in the Employment Equality Act.

The definition of disability is identical except for the fact that we deal in this legislation with past or future situations. It is set out in section 3(1) - "which exists at present or previously existed but no longer exists or may exist in the future" and the Bill then goes on to refer to it being imputed to the person concerned and so on.

But that is not in the Employment Equality Act.

Here we are talking about discrimination generally while there we are speaking about disability. We put the past and future situations into the general discrimination in the Equal Status Bill. In the Employment Equality Act we use it in terms of disability only.

I am still a little confused but perhaps we can return to this on Report Stage. I have not put down any amendments on this, but I wish to signal that Pavee Point gave us a definition of "traveller" subsequent to my submission of amendments. Their definition comes from civil rights legislation in the North of Ireland. Perhaps the Minister could look at this to see if we should respond to that proposal. I note the Minister said he met Pavee Point recently. I do not know if that body gave him that definition but we should look at that before Report Stage, as I have not put down an amendment on that matter either.

This is important for every Member of the committee. We defined discrimination in the equal status legislation now before the House and then we say that if those grounds existed before or exist now or in the future, that is a ground for or cause of action. In the Employment Equality Bill the question of the past and future is confined to disability, whereas here it covers all the grounds of discrimination.

I will take the Minister's word for it.

Question put and agreed to.
SECTION 3.

I move amendment No. 10:

In page 7, subsection (1)(a), line 33, to delete "but no longer exists" and substitute "whether before or after the commencement of this section".

This amendment is a response to the Irish Ladies' Golfing Union. I met them some time ago and they were concerned that there would be a practice in golf clubs and perhaps other clubs also where certain rules would apply to women members. The legislation might preclude the fact that they had been members, though associate members, for many years, enabling the club to say they were coming in as members for the first time. In some golf clubs women could be associate members, though not full members, and they are afraid that the clubs might now interpret the legislation as saying that as they are now becoming full members instead of associate members, their past associate membership might not be taken into account in terms of treatment. They might be charged exorbitant joining fees as new members. They want to ensure that this Bill does not allow golf clubs to discriminate against them in that way.

I do not play golf and one of the main reasons is——

The Minister would be very popular with women golfers.

- - that on one of the few occasions I tried to play with either men or women I spent the day searching for the ball. Be that as it may, I understand what Deputy O'Sullivan is trying to get at here; I was unsure of from the text of the amendment. The equal status legislation will not and cannot have retrospective effect, that is to say, discrimination that occurred before the commencement of the legislation will not be prohibited. However, the effect of section 3(1)(a) is that discrimination which occurs after the commencement of the Act but which is based on a characteristic which existed in the past, regardless of when, would be covered by the Bill. This does not give the Bill retrospective effect but it allows past characteristics, such as former nationality, marital or family status, to be covered.

I have received representations which suggest that an amendment along the lines proposed by Deputy O'Sullivan would allow the Bill to have retrospective effect. If that is the intention it does not achieve it. In any event I do not intend to depart from legislative norms by giving this Bill retrospective effect. As the Bill already covers discrimination based on past characteristics, the reference to the commencement is not appropriate and it is unnecessary. I cannot accept the amendment. In plain terms, if there is a characteristic which is still in existence and which was in existence before the passage of this legislation and which is discriminatory, obviously the discrimination on the basis of that characteristic will be grounds for action.

Is the Minister saying that regarding the Irish Ladies' Golfing Union's concern, the clubs will have to take into account the fact that ladies may have been associate members?

The ground must be discriminatory as well, which is what is confusing me. Is associate membership discriminatory? The discriminatory grounds are set out in page 8, section 3. I confess I do not see anything about associate membership in subsection (2) - all I see there are the actual grounds themselves. I am afraid that the answer is "not necessarily". I cannot give a guarantee.

I accept that it is difficult to put this into legislative wording, but the Minister understands the issue I am addressing. He probably cannot give me any guarantee that he can look for wording on this, as there may not be wording to address this, but it should be possible to address the issue. These women are genuinely concerned that they will be asked to pay £3,000 or £4,000 per year to join clubs of which they have been members for years. They could not be full members in the past.

I understand the concerns they have, but my difficulty is that I cannot be very definitive. It depends on the circumstances of the case. Whenever one hears a Minister for Justice saying "not necessarily", as I have learnt in the last two years, that means the courts making a decision I cannot.

I will not press the amendment at this stage but before Report Stage I will try to find a wording to address the issue.

If Deputy O'Sullivan finds something that covers the issue without making the legislation retrospective, I would be delighted to entertain it.

Perhaps the Minister might try too, in a spirit of co-operation.

Yes, we will try as well.

Amendment, by leave, withdrawn.
Sitting suspended at 12.11 p.m. and resumed at 12.30 p.m.
Amendments Nos. 11 to 13, inclusive, not moved.

I move amendment No. 14:

In page 7, subsection (1), between lines 36 and 37, to insert the following:

"(b) on any such grounds, an organisation consisting wholly or mainly of persons in respect of which the grounds apply or having as its object the furtherance of the interests of such persons is treated less favourably than an organisation consisting wholly or mainly of persons in respect of whom the grounds do not apply, is treated, has been treated or would be treated,".

Amendment put and declared lost.

Amendment No. 15 is in the name of Deputy O'Sullivan; amendments Nos. 30, 34, 38 and 66 are related; amendments Nos. 35 and 37 are consequential on amendment No. 38 and amendment No. 39 is an alternative to amendment No. 38. They may, therefore, be taken together by agreement.

I move amendment No. 15:

In page 8, subsection (1)(c)(ii), lines 6 and 7, to delete "by the provider of a service (within the meaning ofsection 4(5))” and substitute “by a person engaged in an activity to which Part II applies”.

This amendment relates to the definition of "indirect discrimination". The 1997 Bill which was challenged in the Supreme Court had a much stronger provision on indirect discrimination. The definition before us has been narrowed and deals only with indirect discrimination with regard to services. I would prefer the inclusion of the definition in the 1997 Bill, which was a much wider and included clubs, education, accommodation, etc. It is in that context that I propose this change.

A number of the amendments in this group are tabled by the Minister and I look forward to hearing what he has to say on his amendments, which are linked to mine. One of the amendments is tabled by Deputy Fitzgerald.

My amendment clearly states the position. It proposes that one of grounds should be refusing or failing to do all that is reasonable to prevent indirect discrimination from occurring in a club. Its inclusion would strengthen this section.

The purpose of my amendments Nos. 30, 34, 35, 37 and 38 is to extend the concept of reasonable accommodation for the needs of people with disabilities, subject to the nominal cost threshold, to persons disposing of premises and to registered clubs. Due to the cross reference to section 4(5) and section 3(1)(c)(ii), these amendments ensure that the prohibition on indirect discrimination is also extended to these areas. I understand what Deputies O'Sullivan and Fitzgerald seek with their amendments but I believe that my package of amendments effectively meets their concerns. In those circumstances, I ask them to withdraw amendments Nos. 15, 39 and 66.

Will the Minister clarify why he believes his amendments cover this point?

We are extending the concept of reasonable accommodation by the cross reference to section 4(5) and by extending section 3(1)(c)(ii) on page 8. The cross reference in section 4(5) and in section 3(1)(c)(ii) states "within the meaning of section 4, subsection (5)". Therefore, the amendments ensure the prohibition on indirect discrimination is also extended to those areas.

The Minister will understand our confusion as a result of the cross references to the different sections.

Amendment, by leave, withdrawn.

Amendment No. 17 is related to amendment No. 16. Therefore, amendments Nos. 16 and 17 can be discussed together. Is that agreed? Agreed.

I move amendment No. 16:

In page 8, subsection (1)(c)(ii), line 9, after "so" to insert "at all or without suffering a detriment".

This amendment does not make much sense without reading amendment No. 17 which states:

In page 8, subsection (1)(c)(iii), line 11, after "condition" to insert "or are able to comply with the condition without suffering such detriment".

I am again concerned with the Irish Ladies' Golfing Union in these amendments which deal with indirect discrimination. They would allow indirect discrimination to cover a case where the minority group can comply with a condition only by suffering a detriment. This relates to the issue I addressed earlier with regard to the Irish Ladies' Golfing Union and its members suffering a detriment because of a certain condition.

I am not able to accept these amendments. The definition of indirect discrimination in the Bill is equivalent to that in the 1997 Bill. I outlined previously why I wish to follow that Bill in so far as I can. It follows generally accepted international norms for defining indirect discrimination.

The amendment would also, when considered in conjunction with section 3(1)(c)(ii), introduce a considerable degree of uncertainty into the definition. If a person cannot comply with a given condition, it is possible to establish whether a particular category of persons suffers disproportionately from the requirement. If, however, as Deputy O'Sullivan proposes, the degree of compliance with the requirement is taken into account - that is what is suggested here - it becomes extraordinarily difficult to determine whether the requirement has a proportionately adverse effect on a particular category due to the fact that one must try to ascertain what degree of detriment is tantamount to a disproportionately adverse effect.

The amendment would introduce a degree of uncertainty which is not in the legislation at present and is, therefore, undesirable.

I will not press the amendments at this stage. I will try to accommodate the point in some other way.

Amendment, by leave, withdrawn.
Amendment No. 17 not moved.

Amendments Nos. 18 and 19 are related and can be discussed together. Is that agreed? Agreed.

I move amendment No. 18:

In page 8, subsection (1)(c)(iv), line 13, before "justified" to insert "objectively".

This section deals with circumstances in which discrimination shall be taken to occur. It defines indirect discrimination and the amendments call for a change in the test as it is set out. The test is whether the obligation is reasonable rather than requiring that it be justified on objective grounds unrelated to the person's sex, marital status, etc. It should be changed to read that "the obligation to comply with a condition cannot be objectively justified as being reasonable in all the circumstances of the case". I also suggest that the word "necessary" should be substituted for "reasonable". It would strengthen the provision and objectify the current wording, which is somewhat subjective.

The test of justified "as being reasonable in all the circumstances of the case" offers a common sense and easily understood test. It is similar to the wording of section 31(1)(d) of the Employment Equality Act, 1998 which deals with indirect discrimination on grounds other than gender. It is also unchanged from the Equal Status Bill, 1997.

I do not consider it appropriate to amend this provision in the way proposed by Deputy Fitzgerald as it would create an unnecessary departure from the provisions of section 31 of the Employment Equality Act. Furthermore, it will be a matter for the Director of Equality Investigations to decide whether the conditions in question have discriminatory effect which cannot be justified as being reasonable in all the circumstances of the case. It is not a matter of subjective judgment and it is not, therefore, necessary to say that the justification is objective.

The inclusion of the objectivity criterion would strengthen the complainant's case as opposed to only using the word "justified". The Irish Council for Civil Liberties believes the inclusion of the word "objectively" would strengthen the provision, as opposed to a subjective decision as the word "justified" may imply.

The Director of Equality Investigations is obviously an office. It is not confined to the first individual who will hold the post. It is an office created by legislation and whoever holds that position will be bound by objective criteria. It could not be the case that one Director of Equality Investigations would differ with another.

It must be clear that the test as set out in the legislation is not, could not and will not be subjective. The test is objective already and there is no necessity to set it out in legislation. It is objective and could not be otherwise. For it to be otherwise, one would have to confine the post to one individual and his or her opinion. That is clearly not the case. This legislation is meant to stand the test of time. I hope there will be many Directors of Equality Investigations through the years who will apply objective criteria to what is and is not justified as being reasonable in all the circumstances of the case. I must depend on the director so appointed to do his or her utmost to ensure those criteria are applied. I am confident this will be the case under the legislation as it stands.

Amendment, by leave, withdrawn.
Amendment No. 19 not moved.

Amendments Nos. 24 to 27, inclusive, are related to amendment No. 20 and amendment No. 98 is related to amendment No. 24. Amendments Nos. 20, 24 to 27, inclusive, and 98 can be discussed together. Is that agreed? Agreed.

I move amendment No. 20:

In page 8, subsection (2)(h), line 35, after "origins" to insert "or they are of a different linguistic group".

This is the first of a number of amendments in which we seek that the Bill cover extra grounds . Others relate to a person being a member of a trade union and another is not, one being a refugee or asylum seeker and another is not and one being a recipient of a social welfare payment or social benefit or is homeless and another is not. Deputy Fitzgerald has another amendment on political affiliation or ideology.

We discussed most of these matters in the context of the Employment Equality Bill and they are worthy of consideration as grounds under which a person would not be discriminated against. Some of the individual issues are of particular concern to the different groups we met during our deliberations on this Bill. They feel strongly that there is a need to ensure protection under the legislation for people of linguistic groups or asylum seekers, etc.

I wish to concentrate on amendment No. 26, which covers the case where one person is the recipient of a social welfare payment or other social benefit or is homeless and another person is not. This issue arises in the context of current practice which needs to be addressed. For example, if somebody is in receipt of rent allowance, landlords do not want to give them accommodation. This point was raised by the Coolock Community Law Centre and other groups and I have come across cases in the course of my political activities in my constituency where a landlord does not want to accept a person who is seeking a flat because they are in receipt of a rent allowance or homeless.

This problem has not always existed but it appears to be more prevalent recently, particularly given the cost and shortage of accommodation. We should not miss this opportunity to outlaw such discrimination which is likely to become more widespread in the future. Many landlords do not want to register with local authorities under the housing legislation and one of the ways they can be identified is if somebody is seeking accommodation and has a rent allowance. It is a way of subverting or avoiding the requirement to comply with the legislation. If the amendment was included, it would ensure that this type of discrimination could not occur.

The purpose of our amendments is to strengthen this anti-discrimination legislation and make it more comprehensive at a time of huge change. Ireland is becoming a more multi-racial society and new needs are emerging, but some groups are being left out. For example, the trade union membership ground is not included and I believe it should be. Another amendment relates to the use of the word "traveller". It should be capitalised and I hope the Minister will accept this amendment because it is relatively straightforward.

Regarding trade union membership, ICTU says this is an extremely important issue for trade union members who may still be discriminated against because of their membership of a trade union. It is broader than the concept of unfair dismissal as it can cause discrimination against people and their access to employment opportunities. The inclusion of trade union membership as one of the discriminatory grounds would, in practical terms, support the constitutional rights of citizens to be members of trade unions. I recommend that this is also changed in the Employment Equality Act.

Amendment No. 25 deals with cases where one person is a refugee or asylum seeker and another is not, which is referred to in the Act as the refugee ground. The amendment is self-explanatory. It would make it clear that one of the groups protected under the Bill is refugees and asylum seekers. In view of the changing circumstances in relation to asylum seeking and refugees and the numbers coming to Ireland and given the background of the emergence in the media of more reports of racial discrimination, it is important to include the amendment.

Deputy O'Sullivan comprehensively covered the next ground, social welfare payments. It is self-explanatory. I have also tabled an amendment in relation to political affiliation. It should not be used to discriminate and this matter was discussed on the Employment Equality Bill. The Minister may wish to revisit it in this Bill.

The purpose of the amendments, including amendment No. 98 which deals with trade union membership in relation to the Employment Equality Bill, is to deal with changing circumstances and to ensure that the legislation is inclusive in terms of the various categories. Groups should not be excluded. If the Bill is passed as it stands, there will be an opportunity to review it after two years and consider whether extra groups should be added. I have suggested there should also be a review after five years. If it is feasible at this stage to include some of the amendments, the Bill would be strengthened in terms of its ability to cope with groups who may be discriminated against.

I am not sure if the Minister intends to accept amendments but this is a case ofdéjà vu. Unless I am mistaken, I tabled two of the amendments to which Deputy Fitzgerald referred regarding trade union membership and political affiliation to the Employment Equality Bill in the Seanad, but they were refused by the then Minister on the grounds that the Bill would not stand up if they were included. I do not know if they are acceptable now.

The nine specified grounds set out in the Equal Status Bill are in line with those enacted in the Employment Equality Act, 1998. The focus of this Bill is to give effect to the Government's commitment to enact legislation that would outlaw discrimination on the grounds of gender, marital status, family status, sexual orientation, religious belief, age, disability, race and membership of the travelling community. There is much to be done in eliminating discrimination in society on the nine existing grounds. However, the door is not shut to additional grounds being included in the Equal Status Bill and the matter can be further explored at another time.

Section 2(4) provides that the Minister for Justice, Equality and Law Reform of the day shall, not later than two years after the anti-discriminatory provisions of the Act are brought into operation, review the operation of the legislation to assess whether there is a need to add to the nine specified discriminatory grounds. A similar provision also appears in the Employment Equality Act, 1998. This approach is correct. By that time, a solid foundation of good practice in the different functional areas covered by the legislation will have been built up. I anticipate that there will be clear precedents in case work and substantial development in matters such as codes of practice, equality reviews and research by the authority. Against that background, I cannot accept the amendments that one or more additional grounds should now be inserted into the Bill. In my view, lack of precision is attached to some of the grounds submitted for inclusion. As a consequence, detailed work would need to be undertaken to assess the interplay between these new grounds and the existing nine grounds and the rest of the Bill.

The addition of new grounds would entail considerably more policy development and drafting work than merely adding the additional ground or grounds in section 3(2). For example, it is proposed in the amendments that one would not discriminate between a refugee and an asylum seeker. Deputy Fitzgerald referred to this matter. It is well known that I have been at pains over a long period to distinguish between a refugee and an asylum seeker for the simple reason that a refugee is somebody who is fleeing persecution or death and an asylum seeker may be a refugee or an illegal immigrant. An asylum seeker may be held to be an illegal immigrant and not a refugee, but the effect of the amendment would be that the State would be expected to treat an asylum seeker who might be subsequently determined to be an illegal immigrant in the same way as a refugee. This in turn would mean that the asylum seeker, irrespective of the fact that he or she would be found subsequently to be an illegal immigrant, would have the right to work and vote and various other rights which apply to citizens of the State.

I cannot and will not countenance such a position and I gave strong and cogent reasons for not doing so a long time ago. The number of asylum seekers coming into the State increased to in excess of 1,000 in October. I spoke previously about this matter and I said that was likely. On 1 November, only two days ago, there were 75 asylum seekers at the refugee centre in Dublin. These were first time applicants. In all, in excess of 250 people queued, many of them seeking different kinds of services. I have said it again and again and repeat now that I am not aware of any state which has an open border policy or any country which does not have immigration laws. I am obliged to enforce the immigration laws of the State and it is my intention to do so. To accept an amendment such as this would be to ignore the immigration laws of the State and would open the borders of the State, something which would have catastrophic consequences for the economy. It is not something I am prepared to countenance.

Regarding the other grounds which are listed, some may and some may not be meritorious. However, I am certain that as time goes on the legislation will obviously need to be expanded. In this context I have indicated that the Minister of the day, whoever he or she may be, will have the opportunity following experience garnered from the operation of the legislation to expand the grounds if it is felt appropriate to do so at that time. I do not believe this is the time to do that. A well travelled path is set out in the Employment Equality Act which, as I indicated earlier, was tested in its entirety by the Supreme Court, and I think Members would be well advised in the light of what I have said to allow the legislation operate as it stands and then see whether additional grounds are required in the future. I have no doubt that additional grounds will be required in the future, but I would prefer to see these evolve in their own time and in their own way.

Earlier I indicated why I consider it very desirable that I should follow well travelled paths and why I should try to stay in parallel with the Employment Equality Act where possible. This is one of the areas where it is possible to do so and I strongly caution against going beyond the parameters at this point.

I wish to comment on what the Minister said about asylum seekers and refugees. The legislation concerns the provision of services within the State and is not trying to decide on who should or should not be allowed in. For example, we are not saying that everybody of a different age, religious belief or sexual orientation, etc., should automatically be allowed into the country. We are talking about what happens and how they are treated when they get here. I am not too sure that the points made by the Minister are all that relevant to this Bill.

It is almost two years since these provisions were proposed under the original legislation. In light of this, would the Minister consider there has been time to consider the provisions given that if the original legislation had been enacted we would now be at the two year review stage? Would it not be possible to add additional grounds at this stage? These points were made two years ago and I would have thought that any changes necessary could be examined at this point.

I am still concerned about the issue of social welfare as it seems to be abused at present and if we wait for two years there will be quite a number of people discriminated against in the meantime in terms of access to accommodation. I feel particularly strongly on this issue and, assuming that the Minister is not going to accept these amendments, I ask him to seriously look at the others in relation to the two year review of the legislation.

Section 3(2) lists the discriminatory grounds and descriptions of the grounds for the purposes of the Bill and includes race, colour and nationality or ethnic origin. This is very important and I do not see how the Minister's comments tie in with this because the amendment is suggesting that refugees and asylum seekers should not be discriminated against in terms of the issues we are discussing in the Bill. The amendments are not about changing immigration policy and I do not see the link between the Minister's comments and the point we are making in terms of discrimination on the basis of race, colour, nationality or ethnic or national origin. Perhaps the Minister will comment on this. The grounds are outlined in paragraph (h), and the amendment is an attempt to pin the provisions to different groups and is not about changing the very difficult issues with which the Government is currently dealing in relation to criteria for admission to the country and services once people have arrived.

The Minister has not commented on the ground of trade union membership and I ask him to give his views on this. I have outlined why congress, for example, feels this is an important issue and that this ground should be included.

We discussed the ground of political affiliation, which is obviously not without its difficulties. I think the issue of a person affiliated to a political group being discriminated against is worthy of some discussion to see whether grounds can be included in the legislation.

Regarding section 3(2)(i), line 36, has a decision been made on the use of a capital "T" in the word "traveller" throughout the Bill?

An asylum seeker may not be excluded from entering the State. An asylum seeker is entitled to enter the State once they have lodged an application for asylum. The vast majority of asylum seekers do not enter the State through conventional means, for example, they do not arrive at airports or ports in the majority of cases. Rather, they arrive at the offices in Mount Street and very often they have no papers whatsoever with them and do not know where they came from, or so they say, or how they got here. That obviously poses a difficulty for the staff of the Department of Justice, Equality and Law Reform. However, let us leave that aside for a moment.

The argument made by Deputy Fitzgerald that there already exists a ground of discrimination if a person is differentiated on the ground of his or her race, colour, nationality or ethnic or national origins is sound enough. It would be more than sound if between asylum seekers, one asylum seeker was discriminated against on the basis of his race, colour, nationality and ethnic or national origin as opposed to another asylum seeker. That may not happen under the legislation. However, it is entirely different to say a refugee should be treated precisely the same as an asylum seeker for the very simple reason that they are not in the same category. One is seeking to establish that he or she is a refugee while the other has been established to be a refugee. An asylum seeker is either an illegal immigrant or a refugee; he cannot be both. If I accepted this amendment it would clearly mean that an asylum seeker who might be determined to be an illegal immigrant would have precisely the same rights as a refugee. Let us be quite clear about the consequences of this. For about two years I have been talking about the consequences of confusing an illegal immigrant with a refugee, namely, that one would have to provide the services which the State provides to legally recognised refugees to a person who may well turn out to be an illegal immigrant. That, in turn, would be a major pull factor. There has been a considerable increase in the number of asylum seekers in this country in recent times. I cautioned about that a long time ago, for which I was pilloried by various people, both inside and outside this House. That is part of my job and I am not complaining about it. However, I am entitled to complain when people will not believe the evidence of their own eyes, which is what appears to be happening in, at least, some cases.

There is no way that one can equate an asylum seeker with a refugee because an asylum seeker could be found to be an illegal immigrant. There are no circumstances in which I could countenance, on behalf of the taxpayer, a situation whereby each would be recognised as being equal to the other.

With respect, that is not what we are trying to do. We are not saying that refugees and asylum seekers should be treated the same. We are saying that neither should be discriminated against in terms of the provision of services.

The clear implication of that is that if I am not going to discriminate in regard to the provision of services to a refugee and an asylum seeker, I must give both the same services. If I do that, I must, in all respects, give an asylum seeker, who might turn out to be an illegal immigrant, precisely the same rights as a refugee. That does not happen in any other jurisdiction.

I accept that much of the criticism levelled over the past two years in relation to this issue may have been based upon the fact that we did not have a great deal of experience of immigration in this country. We now have a certain level of experience. We are now at a defining moment in terms of immigration policy. I welcome the fact that we have reached that defining moment in order that we may make the kind of decisions I have been advocating for a long time - that we would respect our international and humanitarian obligations but that, equally, if people turned out to be illegal immigrants, while we would treat them with the respect and consideration which their human dignity demands, nonetheless we would insist that they either leave the jurisdiction or, unfortunately, face the alternative of being deported. That is the reality and I cannot change it. In terms of the provision of services, this amendment proposes to equate a refugee with an asylum seeker.

That is not the intention of the amendment.

That is what the amendment clearly states.

Will the Minister clarify how he sees the grounds set out in paragraph (h) - if they are of different race, colour, nationality or ethnic or national origins - applying to refugees and asylum seekers? How would the law apply without that amendment? The Minister said he could see there could be a problem in discriminating between different groups of asylum seekers. How does paragraph (h) apply to refugees and asylum seekers at present, without this amendment? Does it apply to refugees? Does it apply to asylum seekers?

A refugee, or any other person in society, may not be discriminated against in regard to the provision of services on the grounds of his or her race, colour, nationality or ethnic or national origins. In the same way, in so far as services are available to asylum seekers, one would not discriminate on the grounds of race, colour, nationality or ethnic or national origins. However, the point is that there is a big difference between the services which are available under our laws to refugees and those available to asylum seekers.

I am aware of that.

Refugees are in a different category for the very simple reason that their legal status has been determined. There is a considerable difference.

That is the point I have being trying to make all afternoon.

I have no difficulty accepting that point. It is obvious that they are different categories with different rights. The amendment assumes there are different categories with different rights. We are not saying they should be equated. It is the context in which each applies at present. However, the Minister has clarified that paragraph (h) applies to both asylum seekers and refugees in so far as there are services available at present.

The amendment was tabled to ensure there would be no further discrimination. It is an elaboration of paragraph (h). Its intention is not, as the Minister suggested, to open the doors. The Minister should not draw such implications from the amendment. It is an attempt to ensure there is not discrimination within the services available to both groups, accepting that the services are quite different. However, the Minister's understanding of it is that it would open the door, and he has used this opportunity to highlight his concerns in that regard. I can see what he is doing, but that is not the intention of the amendment. The intention is to increase the protection available under paragraph (h), which the Minister has admitted applies to asylum seekers and refugees. Is it not right to say they are covered by paragraph (h)?

With all due respect, Deputy Fitzgerald, who is a very experienced Deputy, knows that language can only mean what is says. The language, as set out here, means precisely what is says and what I have interpreted it as meaning. The amendment seeks to equate refugees with asylum seekers in terms of the delivery of services. My honest view is that were I to insert this amendment into the legislation, it would have catastrophic consequences.

We are referring to the different services available to both groups. Therefore, it would not have catastrophic consequences.

I do not accept that.

The Minister is saying that in regard to the existing paragraph (h), which refers to race, colour, nationality or ethnic origin——

Amendment No. 35?

No, I am referring to the existing ground in the legislation, paragraph (h). For example, is the Minister saying that if I were an asylum seeker, I could not be denied a service on the ground of my ethnic origin? I presume all asylum seekers and refugees are of different ethnic origins. In other words, the Minister is saying I would be covered under paragraph (h), in terms of actual services.

I will put it this way. An asylum seeker, in accordance with the 1951 convention, is given free legal aid, for example, in accordance with letters from the UNHCR. An asylum seeker is given interpretative facilities and is given every opportunity to disprove that he or she is an illegal immigrant. A refugee, on the other hand, has a legal status determined in our society and, therefore, is entitled to a range of services over and above those available to an asylum seeker whose status has not been determined. This amendment seeks to equate them, which I cannot accept. That is why I am rejecting that amendment.

In any event, I have stated continuously that there are clear grounds set out in the Employment Equality Act which are parallelled in the equal status legislation. I have said that other matters, aside from this business of confusing asylum seekers with refugees, may be included as grounds for discrimination at a later date. It is not true to say that we have had a considerable period of experience of the Employment Equality Act, 1998. While that Act has been around for some time, it was not enacted until 18 October 1999. Therefore, we do not have two years experience of that Act, in which the nine grounds for discrimination set out in this Bill are also set out.

I was referring to the original Equal Status Bill.

I hope we will have the opportunity of seeing the grounds in the Employment Equality Act - and later, the same grounds under the Equal Status Bill - implemented. We will then see where we go from there. As Deputy O'Sullivan well knows, the Equal Status Bill has not been implemented either - it would not be here if it had been. That is clear.

What about the issues that arose around the other eight on the original list?

I am not being facetious. I accept that issues arose and that the Bill has been around for quite a while and that issues have been debated under it. However, I cannot countenance - and I am only giving my opinion, for what it is worth - including grounds which I foresee being disadvantageous to society generally. That is all I am saying.

It is the same advice the previous Minister gave.

The intention is not to equate both groups. It clearly was to ensure that the protection under provision (h), concerning people who are of a different race, colour, nationality, ethnic or national origin, would apply in so far as services were available to each of the groups. Obviously, however, the Minister's advice is that that is not what is clear from this amendment. Will the Minister respond to the issue of the trade union membership ground and the others also? Is the Minister accepting the amendment in relation to the reference to travellers?

With regard to the other amendments, I have specified again and again that it is possible that some may have great merit, but these are matters which would have to be teased out in great detail in the context of their precise implications. I foresee that some of the measures outlined would have far reaching consequences and it is necessary to ascertain precisely what those consequences would be before proceeding to enact. On a personal level I would find favour with some of these amendments, but on reflection and consideration I might not find favour with them at all. I would rather that these matters, which, in so far as they are meritorious, would be considered over the coming two years, would be considered in the context of the review. That is excluding the one that would equate refugees with asylum seekers. Some of the others could certainly be looked at in that particular context.

At this point, I cannot say what precisely the implications are of, for example, one person being a member of a trade union and another not as being a discriminatory ground. Obviously, it is not something that one could comment on with any great authority at a cursory glance. It is primarily a matter of labour law. It is not really,prima facie, something which I would like to see included in equal status legislation at this point. All I am asking is that the legislation as presented, which mirrors the nine grounds set out in the Employment Equality Act, would be given a chance to breathe and grow. Then, after it stumbles, falls and begins to walk, we shall start growing it inch by inch.

In relying on mirroring the Employment Equality Act there is a danger the Minister will restrict unduly the potential of the Equal Status Bill. I understand why the Minister would want to mirror certain of the provisions, but surely that should not limit us completely in terms of amending the Bill. We are talking about a different area of discrimination, it is not employment. There are different issues and implications involved. We should be careful about being unduly reliant on mirroring other legislation exactly. This Bill should develop the Employment Equality Bill, as well as mirroring some of what that Bill contains.

I would like to hear the Minister's comments on subsection 26(k), referred to as the social welfare ground. In an increasingly affluent society, the issue of those who are in receipt of social welfare being further discriminated against is a key one. Deputy O'Sullivan gave the example of people not being considered as potential tenants because they are in receipt of a rent subsidy from the health board or a community welfare officer. Such people are not considered eligible for housing. They are told clearly that is the reason, often the only reason, they are not being allow to rent certain accommodation. I would like the Minister's views on that matter.

Has the Department of Justice, Equality and Law Reform done any background work on any of the other grounds? Has the Minister considered them at all or, from the very beginning, has he written off the possibility of extending the grounds for discrimination because he wants the Bill to mirror the Employment Equality Act?

The Employment Equality Act, 1998, was tested in the Supreme Court, as I have explained on numerous occasions. The Equal Status Bill was not tested in the Supreme Court in detail. However, certain matters contained in the Equal Status Bill mirrored the Employment Equality Act, as it is now, and clearly indicated that the legislation would be found to be unconstitutional if it was proceeded with. In those circumstances we amended what was clearly unconstitutional. We had to tease out the legislation piece by piece in order to ensure - in so far as we could be sure, because nobody can be - that it would be constitutional.

With regard to the grounds, I am not restricting the discriminatory grounds at all, in fact. I am merely setting out the nine grounds which are in the 1998 Act and saying that there will be a review after two years to see if there should be additional grounds - in other words, that the legislation would be allowed to breathe as it is.

I wish to deal with the question of it being a discriminatory ground if, for example, a person was treated differently if in receipt of a social welfare payment, as opposed to someone not in receipt of such a payment. We know that people who are in receipt of social welfare may be automatically entitled to certain other benefits not available to those who are not on social welfare. I am thinking, for example, of a medical card to which someone on social welfare would be entitled. A person who is not in receipt of social welfare might not be entitled to such a card. A whole series of consequences arise from this which require a great deal of consideration, and not by me alone.

I would not have the knowledge or expertise, personally or within my Department, to comment on the various matters that would arise. Other Departments, such as Enterprise, Trade and Employment, Health and Children or Education and Science, would have to look carefully at the implications across a broad spectrum of services and then conclude whether it would be desirable to insert further grounds. It will be clear to Members that it would not be desirable to fling in grounds on top of those which have met with observations and which have been teased out and considered. It would be injudicious, dangerous and foolish to do so. That is not to say that there may not be considerable merit in some of the grounds put forward by Deputies Fitzgerald and O'Sullivan. I am not suggesting otherwise, for one moment, but I am saying that it is for another day.

It is now 1.30 p.m. and we agreed to adjourn at this time. Do you want to take these amendments before we adjourn?

No. I think they are very important. There is a lot in them.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.

We have had——

A long discussion.

——I suppose a fairly detailed debate, particularly on refugees and asylum seekers.

A debate or a lecture?

No, it was a debate.

It was a thorough debate - in depth.

Neither Deputy Fitzgerald nor I were, in any way, equating refugees and asylum seekers. We were trying to ensure each group would be protected from discrimination in relation to the provision of services under this legislation without interfering with the primary legislation on refugees. I want to make that clear.

We did not get much response from the Minister on the social welfare ground, about which I said the most. It is an issue which has been raised with us in that there is discrimination, particularly in the housing area in respect of people on social welfare and people who are homeless. I see this legislation as an opportunity to outlaw that discrimination and to ensure social welfare recipients cannot be given different treatment from that which they would be given if they were not in terms of the private rented sector.

In terms of social welfare, I explained that the fact one person is in receipt of social welfare and another is not must, of necessity, have consequences in terms of the provision of service. For example, a person who is in receipt of social welfare might be entitled to a medical card while a person who is not, may not be. Therefore, it is not possible, without giving the matter very deep consideration, to include this provision at this point. However, it is possible that a provision similar to it, following on a review of this legislation in two years' time, may be added. I do not know and cannot give a definitive answer to that.

I still maintain - I insist, in fact - that the language in the amendment dealing with refugees and asylum seekers would equate them for the purposes of the provision of services. That cannot be countenanced in view of the fact that I have said any meritorious proposals can be considered in the two year review. The best thing at this point would be for the amendments to be withdrawn in the knowledge that there will be a review in two years.

As regards services and the age ground, somebody may be in receipt of certain benefits because of their age, but that does not mean they cannot be included in this legislation in terms of outlawing discrimination. I would like to make that point in relation to social welfare recipients. I would like to press amendmentNo. 20.

Amendment put and declared lost.

Amendment No. 22 is cognate on amendment No. 21. Both may be taken together by agreement.

I move amendment No. 21:

In page 8, subsection (2)(i), line 36, to delete "traveller" and substitute "Traveller".

A similar issue arose in relation to the Employment Equality Act. A capital "t" in the word "traveller" is something about which travellers feel strongly and as the name of a group, it should be given a capital rather than a lower case letter in terms of the description. Because they feel so strongly about it, and it is the group, their views should be taken into consideration in the Bill. It would not alter any aspect of the Bill to accede to that request.

I ask the Minister to accept this amendment. It is only a small change but it is a significant and symbolic one. We are talking about a group which sees itself as a distinct cultural and ethnic group. From the point of view of a gesture, it should be accepted.

The National Economic and Social Forum recommended in late 1997 that the words "travelling community", which was included in the Employment Equality Bill, 1996, and the Equal Status Bill, 1997, be changed to "traveller community", which is a more commonly used term. I acceded to that request which resulted in the terminology in the Employment Equality Act, 1998, and the present Bill. The use of a lower case "t" is consistent with other legislation - for example, the Housing Act, 1998, the Unfair Dismissals (Amendment) Act, 1993, and the Employment Equality Act, 1998. I would be grateful if members accepted the recommendation of the National Economic and Social Forum and the traditional manner in which this has been dealt with. The legislative convention is to minimise the use of upper case letters except in relation to a relatively small number of terms where historical precedent dictates practice. While the use of a capital "t" in this case might be indicated in a report or some other non-legislative document, it is not regarded as appropriate in a Bill or Act of the Oireachtas.

We have gone over this ground before and I do not want to waste the committee's time on it.

I met Pavee Point in regard to this and Deputy O'Sullivan is right in that they seem to be concerned about it and mentioned it to me. I am not hung up on a lower case "t" and will consider it. If this will give some solace to the members of the traveller community, as Deputy O'Sullivan has adequately pointed out, I do not see why I should not consider it. I will come back to it on Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 22 not moved.

I move amendment No. 23:

In page 9, subsection (2)(j)(v), line 5, to delete "has given notice of an intention" and substitute "proposes".

This amendment concerns people who are discriminated against because they are taking action under the legislation. I want ensure they are not victimised in any way because of their proposed action. In the 1997 Bill, the language was not as specific as in this one, which states that one must have given notice of an intention. The 1997 Bill, and what I propose here, states that the person would propose to take an action. In other words, the fact that he or she proposes to take an action would mean he or she could not be specifically victimised or discriminated against. Having given notice of an intention implies that a person has gone to the stage of having given written notice. It is feasible such a person could be victimised by simply saying he or she intends to take action under the legislation.

Deputy O'Sullivan's amendment would extend the victimisation ground to include proposed actions rather than actions of which the person concerned has given notice. This would not only introduce an inconsistency with section 73 of the Employment Equality Act, which defines victimisation, but could make the victimisation ground unduly vague. It can be fairly readily established that someone has given notice of his or her intention to do something but a proposal to do something is less concrete. In those circumstances, I cannot accept this amendment as it is too vague.

I accept it is less concrete, but a person could be victimised by simply indicating that he or she is going to take an action under the legislation. That is what I am concerned about. Such a person could be victimised before getting to the point of putting it in writing and giving notice of his or her intention.

The problem is a person could have a proposal to do something but not say it. I need notice of intention; I need something concrete. More often than not, proposals are conceived in the mind and not notified because people think better of them. However, if they think well of them they give the notice. Sometimes they do so, even when they do not think well of them. In any event, one has something to go on. It is like backing a horse. A person proposes to back a horse but if the horse wins and he failed to notify the bookie it is of no use.

On the other hand the bookie might discriminate against the person because he thought he might back the horse.

If a person thought about backing a horse which won a race the bookie would discriminate; he would not pay.

If the person gave the bookie notice he was going to back a horse the bookie still would not pay him.

Amendment, by leave, withdrawn.

I move amendment No. 24:

In page 9, subsection (2), between lines 7 and 8, to insert the following:

"(k) that one is a member of a trade union and the other is not (in this Act referred to as the 'trade union membership ground').".

Amendment put and declared lost.
Amendment No. 25 not moved.

I move amendment No. 26:

In page 9, subsection (2), between lines 7and 8, to insert the following:

"(k) that one is a recipient of a social welfare payment or other social benefit or is homeless and the other is not (in this Act referred to as the 'welfare ground').".

Amendment put.
The Select Committee divided: Tá, 7; Níl, 8.

  • Boylan, Andrew.
  • Broughan, Thomas.
  • Flanagan, Charles.
  • Higgins, Jim.
  • McGrath, Paul.
  • O’Sullivan, Jan.
  • Perry, John.

Níl

  • Cooper-Flynn, Beverley.
  • Hanafin, Mary.
  • Lawlor, Liam.
  • McGuinness, John.
  • Moloney, John.
  • O’Donoghue, John.
  • Ryan, Eoin.
  • Wright, G.V.

I move amendmentNo. 27:

In page 9, subsection (2), between lines 7 and 8, to insert the following:

"(k) that one is affiliated to a political group or ideology (the 'political affiliation ground').".

Amendment put and declared lost.

I move amendmentNo. 28:

In page 9, subsection (2), between lines 7 and 8, to insert the following:

"(k) an organisation, consisting wholly or mainly of persons in respect of whom the grounds apply or having as its object the furtherance of the interests of such persons, is treated less favourably than an organisation consisting mainly or wholly of persons in respect of whom the grounds do not apply, is treated, has been treated or would be treated.".

Amendment put and declared lost.

I move amendmentNo. 29:

In page 9, between lines 15 and 16, to insert the following subsection:

"(5) The Minister shall not later than five years after the commencement of this section review the operation of this Act to assess whether there is a need to add to the discriminatory grounds specified insubsection (2).”.

It is sensible to provide for a review not later than five years. What we are doing here is putting in place the second part of a twin commitment to the whole equality area, the Employment Equality Bill and the Equal Status Bill. With the best intentions we enact legislation, which has been drafted with meticulous care and attention to detail, on a weekly basis. Through no fault of anybody, sometimes legislation turns out to be either flawed or inadequate. The amendment seeks to have the legislation reviewed on a regular basis to try to ensure that the grounds for discrimination are comprehensive.

We have gone through a vast range of areas at the behest of the Government. We, on behalf of the Opposition, have attempted to stitch in additional grounds in respect of discrimination but with the benefit of hindsight in three, four or five years we will discover that there are other obvious areas which are not covered. Perhaps these will be aspects which were proposed today by the Opposition by way of amendments. In the meantime we may discover that there has been a change of heart on the part of the Government in assessing the effectiveness of the legislation. That is what we are saying here, that the Minister shall not later than five years after the commencement of this section review the operation of this Act to assess whether there is a need to add to the discriminatory grounds specified insubsection (2).

I am rather surprised or even bemused by this amendment. Deputy Higgins is seeking a review not later than five years after the commencement of this section in order that more discriminatory grounds may be added. That is rather surprising in view of the fact that his colleague wanted additional grounds added this morning and there is provision in the legislation for a review in two years. Effectively Deputy Higgins is saying that he wants less than that for which I am providing. I am providing that the review would take place in two years and Deputy Higgins wants it to take place in five years. That seems to run contrary at least to the spirit of the proposals of his colleague who earlier today wanted to add new discriminatory grounds immediately. I would have thought that if he was serious about the discriminatory grounds, he would seek to have the additional grounds added in a period earlier than five years.

Section 3(4) provides that the Minister shall, not later than two years after the commencement of this section, review the operation of this Act to assess whether there is a need to add to the discriminatory grounds specified insubsection (2) whereas Deputy Higgins wants to increase that period to five years. I find that rather surprising.

What Deputy Fitzgerald spoke about earlier was accepting the two year review in the Bill and inserting a five year review. Even after two years I am sure the Minister will discover that there are glitches, anomalies or omissions. There should be a regular review mechanism in place to establish whether the legislation is satisfactory. Essentially that is the purpose of the amendment.

If that was the thrust of her amendment, I am sure the Deputy would have put forward amendments to subsection (4) and provided that there would be continuous reviews. I do not read it like that. The amendment is unnecessary. Section 3(4) already provides for a review within two years and there is a similar requirement in the Employment Equality Act, 1998. It would be premature anyway at this stage to provide for a further five year review. The best compromise at this point might be to consider the question of further reviews after the two year review has been completed. To do otherwise is to go too far into the future with a crystal ball, which is by no means clear.

What type of review has the Minister in mind from the point of view of assessing the efficacy or otherwise of the Bill?

Obviously there will be an authority dealing with this legislation and we must glean from it the experiences which it observes during the course of the implementation of the legislation. Clearly any observations which would be received from them or, indeed, anybody else would be checked, teased out and considered by various Departments. Subsequently the Minister might wish to bring forward proposals but clearly it would be a matter for him or her to make that decision.

The general review after two years will obviously look at all aspects of the Bill and how it is functioning and how the authority is operating under the provisions of the Bill, but Deputy Fitzgerald's amendment seeks to specifically ensure that the discriminatory grounds are looked at with a view to possibly adding other grounds at that time. There could well be a danger that in the ordinary review after two years that particular aspect might not necessarily get as much attention as the general operation of the Bill. The purpose of her amendment, therefore, would be to ensure that those particular discriminatory grounds would be addressed specifically in the review of the Bill. They should be looked at after two years also, but I think she is seeking to ensure that they are specifically looked at in great detail at a particular point in time.

No. The review is ring fenced at section 3(4) to assess whether there is a need to add to the discriminatory grounds specified insubsection (2). I can assure Deputy O’Sullivan that the review will be solely concerned with whether there should be an addition or additions to the discriminatory grounds.

Amendment put and declared lost.
Section 3 agreed to.
SECTION 4.

I move amendment No. 30:

In page 9, subsection (1), line 17, after "failure" to insert "by the provider of a service".

Amendment agreed to.

Amendment Nos. 31 and 32 are out of order as they involve a potential charge on the Revenue.

I am concerned that both amendments have been ruled out of order because we wanted to address the issue of nominal costs, which is central to the debate.

That matter can be discussed when we come to deal with the section, we cannot discuss it now.

Amendments Nos. 31 and 32 not moved.

Amendments Nos. 33, 36 and 41 are related and may be taken together by agreement.

I move amendment No. 33:

In page 9, between lines 34 and 35, to insert the following subsection:

"(5) This section is without prejudice to the provisions of sections 7(2)(a), 9(a) and 15(2)(g) of the Education Act, 1998, in so far as they relate to functions of the Minister for Education and Science, recognised schools and boards of management in regard to students with a disability.".

This amendment is intended to allay any fears about the nominal costs threshold for reasonable accommodation for the needs of people with disabilities which, as it applies in the Equal Status Bill, might have a limiting effect on the provisions of the Education Act, 1998, in relation to pupils with disabilities.

Section 7(2)(a) of that Act gives the Minister for Education and Science certain functions in respect of funding, including the funding of support services for students with disabilities. Section 9(a) requires schools to use their available resources to ensure that the educational needs of all students, including those with disabilities, are identified and provided for. Section 15(2)(g) requires a board of management to use the resources provided to the school from the moneys provided by the Oireachtas to make reasonable provisions and accommodation for students with disabilities or other special education needs, including, where necessary, alteration of buildings and the provision of appropriate equipment.

The provisions of the Equal Status Bill were developed in close consultation with the Department of Education and Science and I am satisfied that they do not in any way dilute the provisions of the Education Act, 1998, regarding the education of people with disabilities. It will be noted that section 15(2)(g) of that Act states that the reasonable provision and accommodation for students with disabilities is to be done from resources provided to the school from moneys provided from the Oireachtas. It thus avoids any implication that school authorities must use their own resources for this purpose.

The wording of the Equal Status Bill is thus consistent with the requirements of the Education Act, 1998, and does not dilute it in any way. However, I accept that the relationship between the nominal costs threshold in the Bill and the provisions of the Education Act has generated some uncertainty. I have tabled the amendment to ensure that the equal status legislation cannot be interpreted as being prejudicial to the provisions of the Education Act. My amendment should meet the amendments proposed by Deputies O'Sullivan and Fitzgerald and, while thanking them for tabling those amendments, I ask them to withdraw same in favour of mine.

I tabled amendment No. 36 to ensure that an educational body would not avail of the nominal costs aspect of the Bill in respect of the education of students with disabilities. I accept the Minister's point but I ask him to state categorically that no educational institution can either refuse entry to a student with a disability or in some way not provide for the needs of such a student by using the clause contained in this legislation where the provider of a service can only be expected to pay a nominal cost for its provision. Parents are concerned that their children should not be excluded by the provisions of an item of legislation receiving an education, which is their right. Will the Minister categorically state that an educational establishment cannot use the legislation to deprive students with disabilities of their right to an education?

I support the thrust of Deputy O'Sullivan's remarks which reflect the spirit and essence of the amendment tabled by Deputy Fitzgerald. Section 4(2) has given cause for concern because it states that "A refusal or failure to provide the special treatment or facilities to whichsubsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question”. Deputy Fitzgerald’s amendment suggests the insertion of the following subsection:

An educational organisation or institution shall not be allowed to rely onsubsection (2) to lessen the rights of individuals who have a disability or who have special educational needs as provided for in the Education Act, 1998.

In other words, these organisations or institutions will have no recourse to the comfort or the protection of subsection (2). Will the Minister provide categorical assurances about this matter?

As everyone knows, the Employment Equality Act, 1998, came before the Supreme Court and one of the reasons it was struck down was that the reasonable accommodation requirement was seen as an intrusion or an invasion of the rights of private property. There was a similar provision in the Bill before us and, even though the Bill was not tested in the courts, line by line, it contained a consequential unconstitutional provision. For that reason, the reasonable accommodation provision had to be changed utterly in order to provide for nominal costs as opposed to considerable costs because the Supreme Court held the previous provision to be unconstitutional.

That brings us to what might first appear to be a conflict between the Education Act and the Equal Status Bill. Where the Oireachtas provides the resources to enable reasonable accommodation to be provided, a school authority would be in breach of its obligations if it did not make available the moneys provided to it by the Houses of the Oireachtas under the terms of the Education Act in order to provide the necessary accommodation and facilities for people with disabilities. On the other hand, there are a considerable number of privately owned schools and if one such school did not receive moneys from the Exchequer, the provisions of the Equal Status Bill are quite clear, namely, that the accommodation relates to nominal costs and in those circumstances a breach would not occur.

I would expect the State to provide educational institutions with the resources required to provide accommodation for people with disabilities thus enabling them to admit such people. However, in so far as private property is concerned, the Supreme Court made its position very clear on the question of reasonable accommodation and I hope my comments have helped to clarify the situation.

I have a difficulty with the Minister's reply because I am concerned about privately run schools. If such schools are given a certain amount of funding by the Department of Education and Science, there is no stipulation that part of such funding must be used to provide for people with disabilities attending such schools. In other words, the authorities at a privately run school could inform the Minister that he had only given them a limited amount of money which was required for the school's general operation and that the available funds were insufficient to provide for the admission of students with disabilities. That means privately owned schools which receive funding from the State might be able to avoid their responsibilities with regard to admissions for students with disabilities. For example, there is a convent secondary school and a diocesan college within one mile of my home and one would have to travel further to attend a community school. A student with a disability might not be able to attend his or her nearest second level school. A large number of such schools are privately run. If students with disabilities attend these schools, I want to be sure the schools cannot opt out of using funds from the Department to facilitate them.

When the Minister for Education and Science and his officials were drafting the Education Act, 1998, they were conscious of the then recently delivered judgment of the Supreme Court on the Employment Equality Bill regarding the onus on employers to provide at their own cost for reasonable access and accommodation for people with disabilities. The judgment was that an undue burden could not be placed on them.

The Department of Education and Science provided in the legislation that such facilities were to be provided from resources allocated to the schools by the Oireachtas. If the money is provided to the school by the Oireachtas to carry out the necessary works, then so be it. If not, the student concerned could take a legal action on the matter under the Education Act, 1998. I am dealing here with that legislation and could not give the guarantees sought by the Deputy.

In respect of schools, almost all of which are privately owned but publicly funded, the Act avoids any implication that school authorities must use their own resources for this purpose and that, of course, is in line with the Supreme Court judgment in respect of any private premises, irrespective of whether it is a pub, restaurant, supermarket or private school.

To what extent does the Minister's amendment address the problem? It basically refers the problem back to the Education Act, 1998.

I was anxious that there would not be any blurring of the respective positions in this legislation. The amendment attempts to provide that the State is not freed of its obligations to provide reasonable accommodation in respect of education arising out of the Equal Status Bill. We are not letting the Department of Education and Science off the hook.

I am concerned that privately run schools might be left off the hook.

Given that privately run schools receive a considerable level of State subvention but not as much as public schools, why does the Minister not accept amendment No. 41 which provides that such schools will not be able to seek protection under section 4(2)?

If the money is provided by the Houses of the Oireachtas to a school, it must provide the facilities, the reasonable accommodation. On the other hand, if the Oireachtas does not provide funds, the school is in the same position as a private business which does not receive any subvention from the Oireachtas and that is then covered by the Supreme Court judgment on the Employment Equality Bill. That must be observed in this Bill because our provisions in respect of reasonable accommodation mirrored those in the Employment Equality Bill which was found to be unconstitutional. If the money is provided by the Oireachtas to the privately funded school, it must provide the necessary facilities. If not, it is in the same position as any other privately owned business and does not have to do so. No additional obligation is imposed on it but if the money is provided, the job must be done. That is a safeguard because one might expect that the State would fulfil its obligations in that respect.

There should be an obligation on these schools to seek funding from the Department of Education and Science if they receive an application from a student with a disability. An attempt was made in the Employment Equality Bill to place an onus on employers to apply for grants of up to £5,000 if a person with a disability applied to them for a job. Is it possible to put an onus on the schools to seek finance from the Department if a student seeks admission?

The Deputy knows as well I do that there is no need to put an onus on any educational establishment to look for money. All of them do so as a matter of course. However, such an onus would not be appropriate. To force people under statute to apply for a grant is unheard of and could not be enshrined in legislation. The Deputy wants to make absolutely sure that every privately owned school does its level best to provide the necessary facilities. I have to take them on trust in that respect but all of them do their best. For example, there are privately owned third level colleges which are not well off and would have tremendous difficulty providing the facilities that are required to provide reasonable accommodation. If a different onus were placed on them in comparison to other businesses in the private sector, it would drive them to the wall. I know what the Deputy is trying to achieve but it is not possible. If the money is provided by the Oireachtas to a school, it is obliged to provide facilities pursuant to the Education Act, 1998. If it does not, it is in a similar category to all other private businesses.

Amendment agreed to.

I move amendment No. 34:

In page 9, subsection (5), between lines 40 and 41, to insert the following:

"(c) the person disposing of any estate or interest in premises in respect of whichsection 6(1)(a) applies,”.

Amendment agreed to.

I move amendment No. 35:

In page 9, subsection (5)(c), line 43, to delete "or".

Amendment agreed to.

I move amendment No. 36;

In page 9, subsection (5)(d), line 44, before "an" to insert "except for the purposes ofsubsection (2),”.

Amendment put and declared lost.

I move amendment No. 37:

In page 9, subsection (5)(d), line 46, after "section," to insert "or".

Amendment agreed to.

I move amendment No. 38:

In page 9, subsection (5), between lines 46 and 47, to insert the following:

"(e) a club within the meaning ofsection 8(1) in respect of admission to membership or a service offered to its members,”.

Amendment agreed to.

I move amendment No. 39:

In page 9, subsection (5), between lines 46 and 47, to insert the following:

"(e) a club for the purposes of section 8,".

Amendment put and declared lost.

Amendment No. 40 is out of order.

Amendment No. 40 not moved.

I move amendment No. 41:

In page 10, between lines 4 and 5, to insert the following subsection:

"(6) An educational organisation or institution shall not be allowed to rely onsubsection (2) to lessen the rights of individuals who have a disability or who have special educational needs as provided for in the Education Act, 1998.”.

Amendment put and declared lost.
Question proposed: "That section 4, as amended, stand part of the Bill."

There is a great deal of unease among people with disabilities about this section and also about similar provisions in the Employment Equality Act. On the issue of nominal cost for the provision of services for people with disabilities my amendment, and that of Deputy Fitzgerald, attempted to put a different wording on the constitutional constraints under which we unfortunately operate. I accept the Minister cannot do anything about the Constitution and the right to and integrity of private property contained therein. We need to amend the Constitution to provide people with disabilities with their rights as citizens of this country to participate in education, social life and work. However, in dealing with this legislation, we must deal with the constitutional position.

We believe, and this is reflected in the wording of mine and Deputy Fitzgerald's disallowed amendments, that we should be able to do better than the wording in the Bill and in the Employment Equality Act. That is why we attempted to amend the section. I cannot agree to the section while it contains the existing wording which is an insult to people with disabilities and to their rights as equal citizens. It is not right that businesses, providers of services, schools, and others should not have to make more of an effort in terms of facilitating people who are supposed to be equal citizens along with the rest of us.

I support Deputy O'Sullivan. The aim of the Bill is to try to outlaw discrimination in the context of service provision. The protection in this section needs to focus on the right to access and avail of services. For people with disabilities, the requirement on service providers to make appropriate provision or what we have in our amendments - reasonable accommodation - is central to providing effective, non-

discriminatory services for people with disabilities. The provision should be stronger. It is too minimalist in its protection of people with disabilities. We do not have to rely on the way it is dealt with in the Employment Equality Act. Will the Minister examine this before he returns to the Dáil with the Bill to see if stronger protection can be built in. After all, we are talking about a constitutional amendment relating to disabilities.

It was the original intention to bring forward a more comprehensive reasonable accommodation provision. That was the objective of the Employment Equality Bill considered by the Supreme Court. I outlined earlier that the Bill was considered by the Supreme Court and that the reasonable accommodation provision contained in it was struck down by the court on the basis that it was unconstitutional in the context of the right to private property as expressed in the 1937 Constitution. Once that happened, and because there was a mirror provision in the Equal Status Bill, the conclusion was drawn, properly in my view, that the Equal Status Bill was equally unconstitutional for that reason, among others, that the Supreme Court dealt with in the Employment Equality Bill. While the Supreme Court did not examine the comparable provisions of the Equal Status Bill, 1996, little or no room for manoeuvre was left. Extensive legal advice was obtained on the issue and it was decided to preserve the concept of reasonable accommodation and pass constitutional muster. The reasonable accommodation requirement should, as in the case of the Employment Equality Act, 1998, be subject to a minimal cost threshold.

That was not done with any great enthusiasm and it was because no room was left for manoeuvre. We had to try to preserve the reasonable accommodation requirement and at the same time ensure the Bill would pass the constitutional test. Therefore, the requirement to make reasonable accommodation in the Employment Equality Act, 1998, was made subject to a nominal cost threshold. While the provisions dealing with reasonable accommodation in the Equal Status Bill were not considered in detail by the Supreme Court, logical conclusions were easy to draw. I have taken extensive legal advice on this issue and it was decided firmly that the safest option to follow was the precedent set out in the Employment Equality Act, 1998. That is the reason for the nominal cost threshold contained in the legislation. There appears to be no way out of it. I am aware there was disappointment over this, especially among disability groups throughout the country. I empathise with them in their disappointment but I cannot, because of the Supreme Court judgment,move any further than I have in this legislation.

The Bill deals with the cost implications for service providers in the same way employer rights were protected in the Employment Equality Bill. Did the Minister's legal advice focus on this issue - the difference between employers and service providers and the consequent different implications for an Equal Status Bill as opposed to an Employment Equality Bill? There is little incentive here for investment in access for people with disabilities and that is disappointing. The Minister is following the precedent set down in the Employment Equality Act. However, we are talking about service providers, not employers.

I accept that there is a difference between employers on the one hand and service providers on the other. In many ways, it is a tragedy that the Supreme Court did not get to consider whether there was a difference in that case in terms of reasonable accommodation. In the circumstances, I had to take advice and received it to the effect that I should follow the Supreme Court decision in the Employment Equality Act, 1998. Had I failed to do so, I fear the legislation would have passed through the Oireachtas but would have headed to the Supreme Court with a gale behind it and foundered on the same rocks as the Employment Equality Bill. That was the advice available to me.

Doctors differ and patients die. Perhaps that one was a service provider and the other an employer might have made a difference, but I doubt it. My advice was to follow the provisions which had been tested in the Supreme Court in the Employment Equality Act, 1998, and I have done that. Had I not done that, and the legislation was sent to the Supreme Court and struck down, I would have been back to square one and would have had to start all over again. I did not deem that the preferable option. I would not be doing a service to people with disabilities or others affected by the legislation in taking what amounted to a risk of high proportions.

It is a conservative legal interpretation from the point of view of disability rights. It does not hold out much hope that we will be able to strengthen our legislation in any way in future in terms of access for the disabled. If we are always to operate on this assumption it literally means that the State can do very little legislatively in terms of access for the disabled and that we are talking about a constitutional amendment.

It is limited and conservative but I am constrained by the advice I receive. It would be foolish to ignore that advice. In terms of the new disability Bill, we might be in a position to be more liberal in our interpretation. The last liberal barrister in this country died in 1845 and his name was Daniel O'Connell.

Question put.
The Committee divided: Tá, 8; Níl, 7.

  • Cooper-Flynn, Beverley.
  • Hanafin, Mary.
  • Lawlor, Liam.
  • McGuinness, John.
  • Moloney, John.
  • O’Donoghue, John.
  • Ryan, Eoin.
  • Wright, G.V.

Níl

  • Fitzgerald, Frances.
  • Flanagan, Charles.
  • Higgins, Jim.
  • Howlin, Brendan.
  • McGrath, Paul.
  • O’Sullivan, Jan.
  • Perry, John.
Question declared carried.
NEW SECTION.

I move amendment No. 42:

In page 10, before section 5, but in Part I, to insert the following new section:

5.-A public authority shall within 6 months from the passing of this Act submit to the Authority a scheme which shall show how the public authority proposes to fulfil the duties imposed by this Act.".

This is based on clause 2 of the Ninth Schedule of the Northern Ireland Act, 1998. When we had various groups before us the National Consultative Committee on Racism and Interculturalism in particular suggested that we should have this kind of a clause in order to ensure public authorities respond positively to the legislation by proposing how they will fulfil their duties. A number of different organisations felt that as well as just having to comply with the legislation there should be a positive push towards equality by public bodies in particular, that there should be positive action as opposed to simply complying with equality legislation. This amendment is in that spirit and provides for a positive determination to ensure the spirit as well as the letter of the equality legislation is carried out in various public bodies. The amendment, therefore, has two purposes, namely ensuring public bodies deal with their obligations under the Act within six months and that the spirit of the legislation is taken on board by those working in such bodies and in the ethos of such bodies.

As the Bill straddles nine grounds with many exemptions across diverse areas of service provision, both in the private and public sectors, I am not convinced of the merits of Deputy O'Sullivan's amendment. It is not clear why this amendment should only apply to public authorities. Neither, given the scope and novelty of the measure, would I envisage that a scheme submitted only six months after the passing of the Bill, irrespective of when it commenced, could contain useful information on the practical application of the Bill as opposed to broad aspirational statements. In any event, Departments and other public bodies are committed through customer service plans to equality of opportunities. I also wish to point to the extensive functions being given to the authority in relation to codes of practice in equality reviews. These functions, and in particular the authority's power to conduct equality reviews of bodies with more than 50 staff, have the potential to prompt practical anti-discrimination policies and measures in public authorities. Furthermore, there is no comparable requirement on public bodies in matters to which the Employment Equality Act, 1998, applies. In these circumstances I cannot accept the amendment.

There could not be any objection to the principle of the amendment, namely, the idea that public bodies should be required to say how they will implement the provisions of the legislation. I accept the Minister may have specific problems with the wording of the amendment, but there should be an obligation on bodies to be pro-active rather than waiting until the equality authority pulls them up on something.

I have a difficulty with the amendment. First, the provisions in it will not apply to the private sector. Second, any plan which would be produced within six months of the implementation of the legislation could only be aspirational and could not be concrete. There is a commitment to equality of opportunity in the public sector, something to which all political parties and Independent politicians are committed so far as I understand. I think the term "public authorities" is very vague and very difficult to define. A definition would require a major trawl through State agencies and Departments. However, I am not disposed to accepting the amendment for the reasons I have outlined making issue of definition superfluous.

The Minister said people are committed to equal opportunity, but the recent review which showed the extraordinarily slow progress of women, for example, in the public services, was commented upon by the Taoiseach, the Minister and a number of his colleagues. Also, there is a quota for the number of disabled people who should be employed in public bodies, but again many areas in the public services fall dismally below that quota. The amendment is an attempt to provide an impetus for people and public authorities to implement the Bill and have a plan of action in relation to it. The principle is good given the very slow progress despite the existing commitments.

The Department of Justice, Equality and Law Reform recently did some work on equality proofing and there was a presentation to the Sub-Committee on Women's Rights on the work being done in the Minister's Department on equality proofing and the question of whether a special equality unit would be set up with someone employed to examine equality proofing issues. All of these are very positive developments which I welcome. However, equality proofing the decisions or operational programmes of other Departments has been extraordinarily slow. The EU funded research report looking at equality proofing showed that the last national development plan in many Departments did almost nothing in relation to equality proofing. The issue of impetus in this area is something which should be reflected upon, and legislation and public authorities should lead in this.

I accept what Deputy Fitzgerald has said. The results of what occurred in regard to the employment of women, for example, in the semi-State sector were undoubtedly disappointing, something I said publicly at the time. I am not being patronising when I say that the report showed progress to be quite slow in comparison with the parallel increase in the number of women in the workforce. However, in the context of this legislation the powers to conduct equality reviews of bodies with more than 50 staff are quite strong. In my opinion, these reviews have the capacity to prompt practical anti-discrimination policies and measures in public authorities. There can be little doubt that extensive functions are being given to the authority, not merely in relation to reviews but also to codes of practice. Those powers will almost definitely lead to practical manifestations of proposals which will pragmatically fulfill the duties described and imposed by this Act.

Could I just make an analogy? Most public organisations and authorities would have health and safety statements and anti-bullying measures which are written out and adopted within the organisations. It is in that context that I would see this as a proactive and focused measure. People would actually go to the trouble of thinking about how they could develop an anti-discrimination ethos within their organisations.

The Employment Equality Authority is there to ensure that the duties imposed by this legislation are fulfilled. There are not many private sector companies which would employ more than 50 people but there is a considerable number of what I would loosely call "public bodies" which would. Power is vested in the authority to carry out reviews and to draw up codes of practice. These powers are quite strong and I would anticipate that the powers contained in respect of the authority's codes of practice and review procedures should ensure we will see a practical manifestation of the implementation of the legislation in public bodies or authorities.

I will withdraw the amendment for the moment but I would like the concept to which I referred to be included even if it has to be in a different form of wording.

Amendment, by leave, withdrawn.

I move amendment No. 43:

In page 10, lines 7 to 9, to delete subsection (1) and substitute the following:

"(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.".

The purpose of this amendment is to clarify the scope of the prohibition and discrimination in section 5 in relation to provision of services and, more particularly, disposal of goods. It should be read in conjunction with the definition of "a service" in section 2. Essentially, the same qualification now applies to the disposal of goods as to the provision of services. Disposal of goods and provision of services come within the scope of the Equal Status Bill if they are available to the public generally or to a section of the public. It does not matter whether the goods or services are provided for consideration or otherwise. Services or goods provided on a private basis do not come within the scope of the Bill, as is the case with anti-discrimination legislation in other jurisdictions.

Amendment agreed to.

I move amendment No. 44:

In page 10, subsection (2), lines 11 and 12, to delete paragraph (a).

This amendment has already been discussed with amendments Nos. 5 and 6.

Amendment agreed to.
Amendment No. 45 not moved.

I move amendment No. 46:

In page 10, subsection (2)(e)(i), to delete lines 24 and 25.

The ICTU asked me to address this issue on the basis that there is a lack of reliable actuarial or statistical data obtained from a source on which it is reasonable to rely. I suggest that the provision should be deleted.

I cannot accept the amendment as it would fundamentally alter the manner in which the financial services industry operates in writing insurance, issuing loans and so on. Such bodies make decisions based on actuarial or statistical data, for example, in deciding premia for young male drivers. Insurance companies and so on discriminate on various grounds based on actuarial or statistical data and are allowed to do so in other jurisdictions.

I would point out that the Equal Status Bill will provide protection because the insurance companies and so on will have to justify the difference of treatment, demonstrating that it is based on reasonably reliable data whereas, at present, they do not have to provide such justification. It is not the function of the Equal Status Bill to radically change the manner in which the insurance industry operates. Incidentally, if the data is deemed to be insufficient, it will not be used.

The concern is that insurance companies might use data which is insufficient if it serves their purposes. Data may not be as accurate as it should be but it may be convenient, for the company's purposes, to use it nonetheless.

If that happens, and I hope it will not, the insurance companies will have to justify that to the Director of Equality Investigations.

Will this protection have any implications for community rating concepts and the arrangements covering VHI and BUPA?

Amendment put and declared lost.

I move amendment No. 47:

In page 10, subsection (2)(e)(i), line 27, before "and" to insert the following:

"but does not include information gathered from genetic testing,".

I am sure the Minister will be interested to know that this amendment was tabled to the 1997 Bill by his colleague, Deputy McDaid, whom I presume would know a good deal about genetic testing. I agree with his view that information gathered from genetic testing should not be included in this section of the Bill.

Could the Deputy elaborate on that?

The idea is that information gathered through genetic testing would be used by companies when making decisions in regard to their business.

I can see the basis for the Deputy's concern in this area, not least because Deputy McDaid formerly tabled this amendment. At present, people can be discriminated against on the grounds of genetic testing and are not accorded any legal protection. This Bill provides protection because the insurance company would have to justify differences in treatment. In the same way as I presented the argument in regard to statistics, the Director of Equality Investigations may examine such matters to ascertain whether the difference of treatment is justified. If he finds that it is not, the legislation swings into action.

I cannot accept the amendment as it is not clear to me why information obtained through genetic testing should not be included in the data used by insurance companies to justify different treatment. However, it must be data on which it is reasonable to rely. As I understand it, Irish insurance companies have yet to decide what their stance is in regard to genetic testing. Apparently, British insurance companies do not ask prospective customers to undergo a genetic test but do ask to see the results of any tests which have been carried out. I suppose they may be concerned that some information which would be available to the customer would not be available to them in assessing risk. I do not think this is unreasonable although I appreciate it might discourage people from undergoing genetic tests.

Insurance contracts require the disclosure of all material information whether or not the insurance companies require it on the application forms. It is arguable whether a person should disclose the results of genetic tests to an insurance company when applying for cover. It would be highly artificial and even illogical in those circumstances to prevent the companies taking the results of the tests into account in setting the terms of the insurance cover. While I recognise there are concerns about the issue of genetic testing, I do not see this as an appropriate vehicle for a resolution of these issues. I am not the supervisory authority for the insurance industry and the Bill does not seek to reform insurance practices in any fundamental manner but to cut down on the opportunity to discriminate. In short, this is not the place for a provision such as this. Deputy Fitzgerald already raised the issue but that is all I can contribute at the moment.

Amendment, by leave, withdrawn.

I move amendment No. 48:

In page 10, subsection (2)(f), line 30, before "differences" to insert "reasonable".

This relates to the religion ground. I am proposing "reasonable differences in the treatment of persons on the religion ground in relation to goods or services provided for a religious purpose". I do not think there should be a blanket exemption in relation to religious differences. Whatever exemptions there are should be reasonable. I do not want to givecarte blanche to religious denominations. They should be reasonable in the differences of treatment that may be acceptable.

The effect of the amendment would be to allow the Director of Equality Investigations to decide whether something, provided it is for a religious purpose, is reasonable. That would be tantamount to State interference with the freedom of religious denominations. It will be a matter for the Director to decide whether something is being provided for a religious purpose. However, once that has been established, it cannot be a matter for the Director to decide that the terms on which it is being provided are unreasonable. For an outsider to say whether it is reasonable would be to interfere with the religious persuasion of the individual or individuals. I might consider some religions to be quite unreasonable and others to be reasonable. It would not be reasonable for me, or anyone else, to decide whether something being provided for a religion, irrespective of whether it is deemed to be reasonable or unreasonable, is, in fact, reasonable, as it were. I do not agree with the amendment.

This amendment relates to the provision of services and the disposal of goods. I do not propose to tell people whether they can or cannot belong to a particular religious persuasion and fulfil the practices required by that religious grouping. However, it could be used as an excuse to provide services that are not reasonable in terms of the difference between the provision of service for everyone else and that of a religious grouping.

I do not agree with Deputy O'Sullivan. It would not be a good idea to become involved in this issue.

Amendment put and declared lost.

I move amendment No. 49:

In page 11, subsection (2)(j), lines 8 and 9, to delete "marital status,".

The purpose of paragraph (j) is to enable reasonable distinction to be made in relation to a dramatic performance or entertainment for reasons of authenticity, aesthetics or traditional custom. For example, it would not be discrimination to seek a young woman to play the heroine in Romeo and Juliet or to seek an athletic person like Lomu the Rugby player for a dance performance. As it is difficult to envisage a situation where marital status would be a relevant factor, I propose to delete the reference to "marital status".

Would the effect be that one would not have to be unmarried to be a Rose of Tralee?

To quote another line from Romeo and Juliet, "A rose by any other name would smell as sweet".

I would like to pursue this question with the Minister but obviously he will not give me a straight answer.

Amendment agreed to.

I move amendment No. 50:

In page 11, between lines 21 and 22, to insert the following subsection:

"(3)Subsection (2)(e) is without prejudice to any requirement regarding community rating imposed on health insurers in the State.”.

Deputy Fitzgerald raised the matter earlier. This amendment, which was requested by the Irish Congress of Trades Unions, seeks to ensure that the question of community ratings is not put at risk in the legislation.

I understand the Deputy's concern to ensure the Bill is not detrimental to community rating. However, I do not consider the amendment is necessary. Section 7 of the Health Insurance Act, 1994 provides that premiums payable under health insurance contracts cannot be varied by reference to the age, sex or sexual orientation, suffering or prospective suffering of a person from a chronic disease, illness or other medical condition. The prohibition on age discrimination contained in section 7 of the Health Insurance Act will not be affected by section 5(2)(e) of the present Bill. While it exempts certain differences of treatment and insurance from being regarded as discrimination under that legislation, it does not sanction age discrimination and private health insurance in contravention of the Health Insurance Act, 1994. The Equal Status Bill does not confer any new rights on insurers. Therefore, I cannot accept the amendment.

Is there any reason it should not be included as a safeguard?

One of the principal reasons I do not wish to include it is that I do not want to have "without prejudice" all over the legislation for obvious reasons of drafting. I do not deem the amendment necessary.

Amendment, by leave, withdrawn.
Section 5, as amended, agreed to.
SECTION 6.

I move amendment No. 51:

In page 11, subsection (1)(b), line 24, after "providing" to insert "or depriving".

I thought it might be appropriate to include this amendment as a protection against people being deprived of accommodation on discriminatory grounds.

It appears that Deputy Fitzgerald wants to ensure that the prohibition on discrimination applies not only to the disposal of premises but to providing or depriving persons with regard to the same premises. While I do not propose to accept the amendment at the moment as I am not satisfied about the need for it, I will consider the implications of such an amendment. I cannot make a commitment in regard to the amendment at the moment. However, it is very interesting and I will consider carefully the amendment to see whether I can come back on Report Stage with something along the lines suggested by Deputy Fitzgerald.

Amendment, by leave, withdrawn.

Amendments Nos. 52, 53 and 54 are related and may be discussed together.

I move amendment No. 52:

In page 11, subsection (1)(b), lines 25 and 26, to delete ", in the course of a business or trade".

The purpose of these amendments is to define the scope of the prohibition on discrimination in section 6 in a way that is consistent with section 5. They ensure that the prohibition of discrimination and the disposal of premises or the provision of accommodation applies only where the disposal or provision is in the public domain. Actions in the private sphere, for example, putting up a friend for the weekend, or transferring the house to a family member, are considered private and the prohibition on discrimination does not apply to such areas. The amendment ensures consistency between sections 6 and 5.

Amendment agreed to.

I move amendment No. 53:

In page 11, subsection (2)(b), line 30, after "disposal" to insert "otherwise".

Amendment agreed to.

I move amendment No. 54:

In page 11, subsection (2), between lines 37 and 38, to insert the following:

"(c) any disposal of such an estate or interest, or any provision of accommodation or of any services or amenities relating to accommodation, which is not available to the public generally or a section of the public,".

Amendment agreed to.

I move amendment No. 55:

In page 12, subsection (5), line 27, after "community" to insert "to the extent that is reasonably necessary".

Section 6(5), which is the same as the provision in the 1997 Act, covers situations where there is a need for local authorities and approved voluntary housing organisations to have flexibility in the allocation of housing to ensure that purpose built and designated dwellings, for example, elderly persons' dwellings or accommodation for the travelling community, are to be used for that purpose and to ensure an appropriate social mix in housing estates. The section has been carefully worded in conjunction with the Department of the Environment and Local Government. It was extensively debated in the Seanad when the 1997 Bill was under consideration and I am satisfied that it appropriately addresses the situations which it is intended to protect. For that reason I do not accept the amendment.

The way it is worded at present, particularly line 25, needed to be modified. I am concerned that it could providecarte blanche to provide any sort of accommodation.

We will consider this before Report Stage and will come back to it then.

I thank the Minister for that.

Amendment, by leave, withdrawn.

I move amendment No. 56:

In page 12, between lines 27 and 28, to insert the following subsection:

"(6) Section 13 of the Housing Act, 1988 is hereby amended by the substitution of the following subsection for subsection (1):

'(1) This section applies to members of the "Traveller community" which is defined for these purposes as the community of people commonly so called who are identified both by themselves and by others as people with a shared history, culture and traditions including historically a nomadic way of life on the island of Ireland.'.".

This is a definition of the travelling community amending the Housing Act which defines the travelling community. It is a definition which exists in legislation in Northern Ireland and it would be more meaningful. The current definition of the travelling community is not sufficient to make the Bill workable and it may mean we are not able to ratify the UN Convention on the Elimination of All Forms of Racial Discrimination. It would be preferable if the Bill could amend the previous legal definition of traveller under the Housing Act, 1988, to a definition of the travelling community as a distinct ethnic group. This definition was introduced in Northern Ireland under the Race Relations Act, 1997, article 5(2).

I would like to hear if the Minister agrees that it would be advisable to change the definition in the Housing Act to this, which would bring us into line with Northern Ireland and put us in a stronger position to meet our obligations to the UN convention.

I support the amendment. I referred to it earlier when we were dealing with the definition section. This goes back to the travelling community itself suggesting that this would be an acceptable definition. Where possible we should accede to requests which come from specific groups to ensure the Bill complies with their requirements.

It is interesting. Deputy Fitzgerald has come up with an interesting definition and she wants to amend the Housing Act, 1988. This legislation is not meant to change that Act or any other Housing Act. That is not the intention of the legislation. The term "traveller community" is used in another statute, the word "traveller" follows the Employment Equality Act, 1998, and there "traveller community" is used without definition, as it is in the Unfair Dismissal Act, 1993. The issue is the effect the definition would have on this legislation and it is my opinion that it would not have any effect. I am dealing with equal status and discrimination and the definition would have no impact. The legislation applies to the well understood term "traveller community" along with a considerable number of others.

A number of legislative enactments are needed before we can ratify the UN Convention on the Elimination of All Forms of Racial Discrimination. Among those is this legislation, the Employment Equality Act, 1998, and the Prohibition of Incitement to Hatred Act, which have already been passed. This is the third leg of the stool and once that third leg is in place, there will be not be any inhibition which might prevent us from ratifying the convention. For that reason, the definition of traveller community in this legislation would have no favourable impact on our ratification of the convention.

It is not appropriate for me to define "traveller community" in this Bill and there is an implicit acknowledgement of that by Deputy Fitzgerald, who seems to be amending section 13 of the Housing Act, 1988, as opposed to amending this legislation.

I do not favour the insertion of the definition. It does not serve a useful purpose in the legislation, although it may be useful for other legislation. In this legislation, however, I do not see what efficacy it could have.

I disagree. That is the mechanism by which it would need to changed in the Bill I have introduced. The current definition of traveller may not meet the requirements of the UN Convention on the Elimination of All Forms of Racial Discrimination. That is the link to the Equal Status Bill. I proposed that the Bill amends the Housing Act definition of traveller because that is the only definition on the statute books. The Minister refers to the travelling community; the only reason I can refer to the Housing Act is because it is the only place where there is a definition.

The belief of the groups which made the submission to us is that this definition is open to legal challenge as a result of its ambiguity and that it defines travellers in relation to their position as a problem within housing policy. The travelling community believes the definition should be more holistic in defining an ethnic group from the inside rather from the outside by policy makers. It is already in article 5(2) of the Northern Ireland Race Relations Act.

I would like the Minister to look at the information available on the definition before Report Stage, the fact that it exists in Northern Ireland and that it has a high level of support in the travelling community and among policy makers. It would strengthen the Bill. It came from a legal precedent laid down by the House of Lords in 1983 which enshrined two tests for ethnic origin in law - a long shared history and a cultural tradition with family and social customs. That definition may emerge in Irish law in future. It is relevant because it is one of the groups which suffer from discrimination and is central to what the Bill is attempting to do. It would be worthwhile for the Minister to examine this definition and, perhaps, come back on Report Stage with a response to these suggestions.

This definition is not in the Employment Equality Act, for example. If Deputy Fitzgerald is insisting on this definition I am not certain that the definition of traveller community, as outlined in the Employment Equality Act, 1998, is the equivalent of this. It may not be, because if it was, Deputy Fitzgerald might not wish to have put forward this amendment in the first instance. In the same way there is uncertainty regarding the use of the word "traveller" in the Unfair Dismissals Act, 1993. Is there a divergence? We cannot have a divergence because all three pieces of legislation are aimed at the same class of people. Section 13 of the Housing Act, 1988, which related to the provision of sites for travellers specified that the section applied to persons belonging to a class of persons who traditionally pursue or have pursued a nomadic way of life. That is as close as I can come to a definition which Deputy Fitzgerald puts forward.

I am very slow to accept her argument for the reasons I have outlined. To do so might mean that other legislative enactments would have to be amended and I do not see how it serves a useful purpose. I can understand why the class of persons concerned might be very anxious that there would be a statutory definition but I am not sure that all of them would agree with any definition which might be put forward. It would involve a very broad consultation process and even then its implications in terms of definitions of the words "traveller" and "traveller community" already contained in other legislation would have to be considered. I am not against a definition of "traveller" but if there is to be one, this is not the place for it. This legislation relates to the provision of services, not just for travellers but for others who may be discriminated against.

In deference to Deputy Fitzgerald's wishes I will look at the implications of her proposal but I do not hold out much cause for optimism. Having met representatives of travellers, I am aware that they are anxious that there be a definition but I am not sure if they could come to me and say there is unanimity within the traveller community on the point.

I thank the Minister for his promise to look at this question. I accept his points with regard to consultation and agreement. Representations have come from a number of groups and they are keen that there would be a statutory definition.

The Minister refers to definitions in previous legislation. If one wishes to progress concepts in legislation, the process of change must begin in some legislation. Otherwise we would never have legislative change. I am pleased the Minister has agreed to consider this matter. I hope he will come back on Report Stage with a considered response when we can see if it is feasible to take it forward in this Bill or, if not, in some stand-alone legislation.

Pavee Point is one of the organisations which came to the committee. Representatives of the group referred to this definition and subsequently sent their submission to members of the committee. I do not know how representative Pavee Point is of the traveller community as a whole.

Like Deputy Fitzgerald, I do not expect an answer from the Minister today but I support the view that change must be introduced in legislation at some point if a definition is to be laid down. I do not know how to decide the appropriate legislation to break new ground, but I do not see why it cannot be done in this Bill.

Amendment, by leave, withdrawn.
Section 6, as amended, agreed to.
SECTION 7.

A printing error has resulted in incorrect line references on page 13 of the Equal Status Bill, 1999, which affects amendments Nos. 57 to 61, inclusive, in the names of Deputies O'Sullivan and Fitzgerald. In the case of these amendments, Members are requested to note that the line references referred to relate to the actual number of lines in the text contained on the relevant page of the Bill and not to the incorrect numbers printed on the Bill.

Amendments Nos. 58 and 59 are alternatives, therefore, amendments Nos. 57, 58 and 59 may be taken together, by agreement.

I move amendment No. 57:

In page 13, subsection (3)(d), to delete lines 21 to 27.

This amendment relates to fees for educational establishments. I am concerned that educational establishments might charge higher fees for non-EU nationals. Some institutions, including one not far from here, do so. This is a questionable practice and is possibly in breach of international declarations, including the UNESCO Convention Against Discrimination in Education, although we have not yet ratified that. This practice is not something to be admired and we should not give comfort and succour to institutions who indulge in it.

Amendments Nos. 58 and 59 are self-explanatory.

The purpose of section 7(3)(d) which was also in the 1997 Bill is to permit the continuance of such practices as the charging of economic fees by universities to non-EU nationals and the giving of preference to EU nationals over other persons. While it is not permissible to charge different fees to nationals of different EU member states there is no reason the State should fund third level courses for EU non-nationals to the same extent as it supports courses for Irish and other EU citizens. There is a parallel exemption in section 12 of the Employment Equality Act as regards vocational training. I cannot, therefore, accept the deletion of this section.

With regard to Deputy Fitzgerald's amendments, I fully accept that it would not be appropriate to treat persons who have been granted refugee status in this country any differently from Irish citizens as regards access to and fees for third level education. I will give further consideration to the amendments concerning refugees between now and Report Stage with a view to seeing whether an amendment is necessary. There is no need to elaborate in regard to the difference between asylum seekers, refugees and illegal immigrants.

Will the Minister comment on the UNESCO Convention Against Discrimination in Education?

No, thank you.

Can this legislation be amended at a later date if we ratify that convention?

I do not wish to go over this again.

We might have to.

I cannot think of even one country in the world which opens its doors and gives everyone free education. That happens in Utopia but I have not been there yet.

Will the Minister examine the issue of those who have already been granted refugee status?

I have said on numerous occasions that I am anxious that we continue our tradition of honouring our international and humanitarian obligations in connection with refugees. For that reason I will give sympathetic consideration to the amendment tabled by the Deputy.

Amendment, by leave, withdrawn.
Amendments Nos. 58 and 59 not moved.

We now proceed to amendment No. 60. Amendment No. 61 is an alternative. Amendments Nos. 60 and 61 may be discussed together.

I move amendment No. 60:

In page 13, subsection (4), lines 47 and 48 and in page 14, lines 1 to 3, to delete paragraph (b).

This is another paragraph which limits the rights of people with disabilities in the area of education. There is no justification for including it in the Bill. It reads:

to the extent that compliance with any of its provisions in relation to a student with a disability would, by virtue of the disability, make impossible, or have a seriously detrimental effect on, the provision by an educational establishment of its services to other students.

It is objectionable that an educational establishment will be able to exclude a student with a disability on the grounds that his or her inclusion would cause difficulties for other students by requiring, for example, the provision of ramps or sign language services. Why has the paragraph been included? It was not considered necessary to include it in the 1997 Bill. We have already debated the question of students with disabilities in an effort to ensure they will not affected negatively by this Bill. The Irish Council for Civil Liberties has referred specifically to their right of access to educational establishments.

The concern is that this section could be abused, that it is not tight enough. There may be a need for its limitation. There is not any reference to objective criteria to determine whether compliance in relation to a student with a disability would, by virtue of the disability, make impossible, or have a seriously detrimental effect on, the provision by an educational establishment of its services to other students. It will be up to the courts to determine the test that should be used in making this decision. There is a need for more objective criteria to ensure the section does not lead to abuses in educational establishments. It would be easy for an educational establishment to use it as an excuse not to provide better facilities.

I cannot accept the amendments. Under section 7(4) educational establishments are not obliged to admit students with a disability if so doing would make it impossible or have a seriously detrimental effect on the provision of services to other students. This exemption was included following concerns expressed by our legal advisers about the open-ended nature of the obligations under the 1997 Bill which could negate other pupils' constitutional right to an education. There was a balance to be struck in this and I considered that I could only strike it by the introduction of section 7(4)(b). The wording of this subsection has been developed in consultation with the Department of Education and Science.

I envisage that section 7(4)(b) will not be availed of lightly. The exclusion of a person by a school on foot of this provision must meet a strict test, namely, that the person's disability must make it impossible or have a seriously detrimental effect on the school's provision of its services to other students. What we have in mind is a child whose disability is such that his or her admission would seriously disrupt or negate the education of pupils. Where a school has availed of this provision, it will be open to the person to seek redress under the Equal Status Bill by submitting the case to the Director of Equality Investigations. The school will have to adduce satisfactory evidence to the Director that there was a basis under section 7(4) for its decision not to admit the student. In other words, where an educational establishment seeks to avail of such an exemption, it will be a matter for that establishment, not the complainant, to show that the exemption applies. Since the school will have to persuade the Director of Equality Investigations that it meets the test in section 7(4)(b) I do not regard it as necessary to qualify this section by reference to objective criteria. In short, there has to be a serious difficulty - not just an annoyance or perception - which has to pass a strong test. The onus falls on the school to establish the position, not on the person making the complaint. In those circumstances the language is appropriate and tight enough.

As the Minister is aware, minor impediments have been used to keep disabled students out of mainstream educational facilities and services. It is easy to find reasons to exclude disabled students because of the changes that would be required in terms of access and accommodation. I am not convinced that it will only be in cases of serious difficulty that schools will avail of this section. How can the Minister guarantee this? Because of the lack of objective criteria there is a danger that disabled students will be kept out too easily because it is considered they will disrupt other students. There is a history of this. While the position may be changing given that we are living in more enlightened times where there is greater awareness of the rights of people with disabilities, it would be preferable to include objective criteria rather than leave the section as it stands. It is very subjective. What one educational establishment might consider impossible, another might not.

Section 4 already gives considerable powers to service providers where they encounter difficulties in dealing with people with disabilities. I consider that they are too strong. The section limits the rights of people with disabilities. Therefore educational establishments are already protected. The onus will be on the individual concerned to prove to the Equality Authority that he or she has been discriminated against. At that stage it will probably be too late to approach the school or third level institution concerned as the term or course will have commenced. This means that the individual concerned will be deprived of the opportunity to participate for at least one year. The fact that he or she will have the right of redress may not necessarily help him or her.

There is no doubt that in some cases people have been refused education in an establishment on relatively flimsy grounds where disability is concerned. However, this legislation is not about making it any easier. This legislation makes it much harder to refuse a person with a disability. There are a number of very stern tests outlined at subsection (4). These are not light tests. They are very strict. The legislation provides that the disability would make it impossible for or have a seriously detrimental effect on the provision by an educational establishment of its services to other students before it could refuse a person with a disability. In addition, these stern tests would have to be proved by the school to the extent that the onus of proof would be on the educational establishment. In those circumstances, it will be apparent to everybody that whatever about the position in the past, the position in the future under the equal status legislation will be quite strong. That is the intention of this legislation - to hammer discrimination, and hammering discrimination in terms of the provision of education to people with a disability is one of the objectives of this legislation. This subsection achieves that without amendment.

If the educational establishment passes the test of a possibility of a seriously detrimental effect on the education of other students, no reasonable person could hold that the educational establishment concerned should still be statutorily obliged to accept the student concerned. I envisage that the protection, in so far as it is protection, which is provided for in this aspect of the legislation could and would only be availed of where the school could establish to the satisfaction of the Director of Equality Investigations that if the student were admitted, because of his or her disability, it would be impossible to give an education to the other students or would be seriously detrimental to their education. It must be remembered that they are constitutionally entitled to that education. It is not a matter of discretion. It is not even a matter of statute. It is a constitutional obligation on the State. I am satisfied, for my part, that a mere annoyance or a mere perception will not be sufficient. I am also satisfied that this offers very considerable protection to people with a disability in terms of them obtaining education in any educational establishment.

With regard to the reasonable accommodation argument, the obligation there is contained in the Education Act, 1998, and it has been provided in that legislation by the Minister for Education and Science, Deputy Micheál Martin, that the State is to provide the resources to an educational establishment, whether public or private, in order that the accommodation can be made available. I have outlined what the position is in relation to schools which do not require an adequacy of funds and which are privately owned.

Amendment put.
The Select Committee divided: Tá, 7; Níl, 8.

  • Fitzgerald, Frances.
  • Flanagan, Charles.
  • Higgins, Jim.
  • Howlin, Brendan.
  • McGrath, Paul.
  • O’Sullivan, Jan.
  • Shatter, Alan.

Níl

  • Cooper-Flynn, Beverley.
  • Hanafin, Mary.
  • Lawlor, Liam.
  • McGuinness, John.
  • Moloney, John.
  • O’Donoghue, John.
  • Ryan, Eoin.
  • Wright, G. V.

I move amendment No. 61:

In page 13, subsection (4), line 47, before "to" to insert "objective criteria shall be established to assess".

Amendment put.
The Select Committee divided: Tá, 7; Níl, 8.

  • Fitzgerald, Frances.
  • Flanagan, Charles.
  • Higgins, Jim.
  • Howlin, Brendan.
  • McGrath, Paul.
  • O’Sullivan, Jan.
  • Shatter, Alan.

Níl

  • Cooper-Flynn, Beverley.
  • Hanafin, Mary.
  • Lawlor, Liam.
  • McGuinness, John.
  • Moloney, John.
  • O’Donoghue, John.
  • Ryan, Eoin.
  • Wright, G. V.
NEW SECTION.

Amendment Nos. 63 is an alternative to amendment No. 62 and they are to be taken together by agreement. Is that agreed? Agreed.

I move amendment No. 62:

In page 14, before section 8, to insert the following new section:

8.-The partners or members or any of them of a business or of its board or governing authority whether incorporated or not that is carried out by individuals who are and share in the capital and profits of the business as its partners or members (a firm) shall not discriminate in relation to

(a) the admission of a person as a partner or member of the firm or conditions applicable to a partner or member of the firm,

(b) the status of a partner or member of the firm in relation to the work done by the firm or the sharing in the capital and profits of the firm, or

(c) the expulsion of a partner or member from the firm or any other sanction against the partner or member.".

This amendment proposes a new section in relation to firms of partners. This provision was in the 1997 Bill and we want to restore it to the current Bill. I am interested in finding out why the Minister has deleted it, as I believe it is required to comply with the 1986 EU directive on equality in self-employed activity. The Irish Congress of Trade Unions is concerned with this also. The directive is 86/613/EEC and relates to the application of the principle of equal treatment between men and women engaged in an activity, including agriculture and in a self-employed capacity, and to protection of self-employed women during pregnancy and motherhood etc. Why does the Minister propose not to include this section in the 1999 legislation?

This section was in the 1997 Bill and I am surprised at its exclusion from this legislation. It would clarify the legislation to have it included. There is also the issue of compliance with the self-employment directive.

I have had legal advice that the provisions dealing with partnerships in section 9 of the 1997 Bill were anomalous vis-à-vis the provisions of the Employment Equality Act, 1998. A person denied admission to a partnership could potentially have brought proceedings for discrimination under the 1997 Bill even if he or she had not been able to meet the occupational requirements of the job in the partnership. This would have had serious implications for the undertaking concerned and in some cases the provisions in the 1997 Bill could have resulted in constitutional interference with the undertaking’s property rights and-or rights of freedom of association. Section 9 of the 1997 Bill also did not take account of the provisions of the Companies Acts which already made detailed provision for the transmission and transfer of shares to companies to which the Acts apply, together with the rights of members.

The main advice furnished to me would seem to be that any alteration of these provisions would best be achieved by way of specific amendment of or addition to the Companies Acts or the legislation regulating partnerships, as the case may be. Furthermore, it had been thought that a prohibition on discrimination in firms' partnerships was required by the EU directive on self-employed activity. We are now advised that such a prohibition is not required.

With respect to the Minister, my legal advice is that it should be included in this Bill. The Minister is saying that this provision should be in the Companies Acts or other legislation, but it is appropriate to this legislation in which we are outlawing discrimination in relation to the provision of services etc. I do not understand the reason it should be included in different legislation. Has the Minister an objection to including it in this and other relevant legislation?

Does it go back to the safety argument?

No, that is a different argument. It is really a case of putting a round peg in a square hole. There is possibly nothing wrong with the amendments as put down by Deputies Fitzgerald and O'Sullivan, but the difficulty is the round peg in the square hole syndrome in the sense that if we were to adequately address this problem, we would have to "tweak" the legislation to make it adaptable to, for example, small as well as large partnerships. A greater degree of consideration would need to be given in the legislation. It is undoubtedly the case, as Deputy O'Sullivan has said, that it is appropriate to the Companies Acts as to other legislation, but not to this Bill. The original advice was to include it. It was further considered but then the advice was not to include it. It is far more appropriate for company and partnership law. It is too bald as it stands. It would have to be far more detailed and it would have to go into the intricacies, in particular as they relate to smaller undertakings. It is not really an objection in principle.

What protection exists currently should a situation like this arise? If there was discrimination in relation to the admission of a person on the grounds covered in this Bill, is it simply excluded?

I have already outlined my difficulty in regard to it. If a person was denied admission to a partnership and he or she did not have the occupational skills, for example, required for the job in the partnership, he or she could potentially have brought proceedings for discrimination under the 1997 Bill as it stood. None of us wants to achieve that objective, which is not laudable, but the other side of that coin is that by not including in the legislation the specific provisions in relation to partnership, we are excluding them. Deputy Fitzgerald is correct in that respect. My difficulty is that I cannot cover every eventuality known to mankind in this legislation, as the Deputy will appreciate. I accept it would be preferable to try to cover as many situations as one could, but the legal advice is strong that it would not now be appropriate to proceed with the partnerships in the context of this legislation and that company law or partnership law should address it.

It is strange that we have had such conflicting legal advice in this area. Not including this in the legislation could affect anyone, but given women's lack of access to decision-making in businesses, for example, it would disproportionately affect women in business. Women in business have done much work in recent years in highlighting some of the existing barriers which are not now as much part of the networks that lead to promotion as has been the case in the past. It is unfortunate if we are excluding firms of partners from possible redress under the legislation. The legal advice that it should be left out is strange. I cannot understand why it does not have a place in equal status legislation. This issue will disproportionately affect women.

This is anti-discrimination legislation. We are talking about discrimination. The Bill specifically states: "shall not discriminate in relation to . . . ". I would have thought this would be the primary legislation to deal with this matter rather than companies or partnerships legislation. The discrimination is the main point here, not the fact that it is a partnership or a company. It is the discrimination specifically that we are addressing. We have addressed discrimination in various areas in the Bill which the Minister might say should have been included in an education or a social welfare Bill. I do not see that the argument about discrimination is any different in this case. It is about discrimination so it should be included in an anti-discrimination Bill.

Yes, but this is an anti-discrimination Bill dealing with services. It is not an anti-discrimination Bill dealing with partnerships or who should or should not be excluded from a partnership. It is to deal with the provision of services and service providers. The legislation which Deputy O'Sullivan is proposing through her amendment would mean that, for example, the discrimination laws would be propelled in relation to, say, the admission of a person as a partner or a member of a firm, or of the status or the expulsion of such an individual. That is not related to the whole question of the provision of services. It has its home in partnership or company law. I do not think it would be appropriate here and, in any event, whether one finds the conflicting legal advice strange, while it had been thought that a prohibition on discrimination in firms or partnerships was required by an EU directive on self-employed activity, it was subsequently discovered that the prohibition was not required. I suspect the reason the provision in relation to partnerships was in the Bill as originally framed was that it was felt that in order to comply with the directive, this provision in relation to partnerships should be in the legislation. This Bill is about the provision of services and discrimination in the delivery of same. I anticipate that we will see changes of this nature probably in the context of company or partnership law, or such a provision may be tabled at a future date when dealing with the expansion of the Employment Equality Act, 1998, where such a provision would be far more appropriate as it deals with employment, but it is not appropriate in this legislation as it is not related to the provision of services.

I will press my amendment. I realise we will not win because of the numbers game. Given that a companies Bill is being debated at another committee today, perhaps the Minister would talk to the relevant Minister to check if this provision would be relevant to that Bill. I do not know the detail of that Bill, but I would like this provision to be included in some legislation.

I will arrange for my officials to communicate the committee's views to the relevant Minister, who I assume is the Tánaiste. I assume she would deal with legislation such as that. I will communicate the views expressed here about partnerships and ask if it would be appropriate to provide for this in the relevant legislation that is being dealt with at present.

The amendment states ". . . ('a firm') shall not discriminate in relation to - (a) the admission of a person as a partner or member of the firm. . . "

That is not the provision of a service, that is my point.

The point I am making is that it relates to anti-discrimination. Where else if not in an equal status Bill would we include such a provision?

The Minister has dealt with that point.

Given that we are talking about strengthening the legislation in relation to firms of partners - anti-discrimination legislation, so to speak - I cannot understand why it is not relevent to include this provision in this Bill.

This Bill deals with the provision of services, but I would not be able to put forward the same argument if we were dealing with the Employment Equality Act, 1998. I could not make this argument if we were dealing with company law or partnership law, but the exclusion of, the status of or the admission of a partner in a partnership does not relate to the provision of a service, it relates to employment. That is why I regard the inclusion of this provision as trying to put a round peg into a square hole.

Is such a provision detailed in the Employment Equality Act?

No, it is not included in the Employment Equality Act.

So it was missed there as well.

I have described this provision as relating to employment, but partnership law, company law or labour law might be more apposite. In the technical sense of that word a partner is not an employee, but I am sure members appreciate the general tenor of what I am saying. This provision does not relate to the provision of a service and that is my difficulty with it. I suspect it was included in the original Bill because it was thought the directive had to be complied with and then it was discovered it did not have to be. It is like what happens in all these matters, it was complied with elsewhere.

Given that such a provision is not in the Employment Equality Act and it will not be included in the Equal Status Bill, it would be worth while if the Minister could discuss it with the Tánaiste to check if it would be appropriate to include it in one of the Bills before the Houses, or perhaps it could be dealt with on Report Stage. Even though this provision does not relate to services, it is relevant and it is not covered in any other legislation.

I think the Minister has agreed to do that.

To deal with it on Report Stage?

To refer it to the Tánaiste. We cannot deal with it on Report Stage.

I have not. What I have agreed to do is to bring this provision to the attention of the Tánaiste. I am satisfied it is not appropriate to this legislation because it is not related to the provision of a service, which is what this legislation deals with. That is not to say that I have anything, in principle, against such a provision. I have not, but I would be loathe to enact it as it stands because it is not detailed enough and it does not contain enough analysis of the kinds of partnerships and situations that might or might not arise. No correct analysis of the implications of such a change has been carried out and until that is done I could not countenance including such a provision in any legislation. It is apparent, however, that its inclusion is not appropriate here.

The Minister can decide if it is appropriate in the sense that if it is not covered elsewhere and it is an important area, it should be covered in legislation.

Given that the Deputy said that I can decide whether it is appropriate, she has a fair indication of what I think about its appropriateness.

I am concerned it is not covered in any legislation.

As I explained earlier, I am not the fountain of all knowledge on this, not would I for one moment pretend to be. I am only trying to reach the best consensus I can on this and the consensus I have reached is that I will forward this to the Tánaiste and ask her to check if she can incorporate it in some of her labour legislation. That is all I can do.

Amendment, by leave, withdrawn.
Amendment No. 63 not moved.

As it is now 5.30 p.m. do Members wish to adjourn until tomorrow morning when we will take amendment No. 64. Is that agreed? Agreed.

Progress reported; Committee to sit again.