I welcome the Minister of State, Deputy Fahey. The committee had reached amendment No. 64. Amendment No. 67 is an alternative so amendments Nos. 64 and 67 can be discussed together. Is that agreed? Agreed.
Vol. 2 No. 10
I welcome the Minister of State, Deputy Fahey. The committee had reached amendment No. 64. Amendment No. 67 is an alternative so amendments Nos. 64 and 67 can be discussed together. Is that agreed? Agreed.
I move amendment No. 64:
In page 14, subsection (2)(b), between lines 18 and 19, to insert the following:
"(i) refusing to permit certain categories of members to vote at general meetings and stand for office in the management committee;".
Amendment No. 67 relates to clubs refusing certain categories of membership the right to stand for office. It refers to the Registration of Clubs Act, 1904. The two amendments suggest that that Act would have been contravened if a club discriminated in this way. These amendments again relate to the submission from the Irish Ladies Golfing Union although they refer not only to golf clubs. The Second Commission on the Status of Women refers to this Act and suggests that legislation to outlaw discrimination should be linked to the Registration of Clubs Act to ensure that clubs comply with anti-discrimination measures and do not use that Act in a way that would discriminate against their members. The commission said in a report to the Government in January 1993 that any statutory advantage deriving from club status should be removed from discriminating clubs.
The amendments are a response to recommendations from the Second Commission on the Status of Women and to representations on behalf of a group of women golfers who have seen discrimination in their sport and in clubs involved in that sport. We should ensure that such discrimination does not exist and that the Registration of Clubs Act cannot be used to permit discrimination.
The Equal Status Bill contains provisions designed to ensure that registered clubs with an intoxicating liquor licence which are found to be discriminating will not be allowed to hold such a licence. This will be a matter for the District Court to decide. Sections 8, 9 and 10 are taken from the 1997 Bill and they were drafted on the advice of the Attorney General in light of the constitutional and practical difficulties of bringing clubs generally within the scope of the Equal Status Bill. I am, therefore, not disposed to employ the Bill as a vehicle for making substantial changes to the Registration of Clubs Act and, for that reason, I cannot accept the amendments.
The implications of giving voting rights to every member in a registered club are unclear. While I claim no experience of the details of membership of registered clubs, there is a considerable variety of types of membership. It might well be that there are some members to whom it would be inappropriate to give voting rights. The issues relating to gender equality which the Deputy has mentioned in golf club membership appear unresolved, but the Equality Authority has the role of working towards the elimination of prohibited conduct and the promotion of equality. This Bill will confer on the authority the function, if it confirms it appropriate to do so, of preparing codes of practice in particular areas. It will be open to individuals to represent to the authority that this area might be appropriate for preparation of a code of practice. We all agree with the Deputy's point that there should be no discrimination in golf clubs, or any other club.
Will the Minister reconsider this matter because the Irish Ladies Golfing Union has left us in no doubt that a minority of clubs will do whatever they can to ensure that women are not given equal status? This involves a minority of clubs, which also tend to be older clubs. The union has received legal advice and it is strongly of the opinion that this legislation still does not close all the loopholes with regard to the ability of golf clubs to discriminate against women. We should do whatever we can as legislators to ensure that those loopholes are closed. I would appreciate if the Minister would reconsider the wording and incorporate it in some way in the Bill to ensure that these loopholes are not perpetuated in golfing circles.
I would accept the Deputy's point in principle were it not for the fact that there is a much stronger regulatory measure in the Registration of Clubs Act. This means the Department will have power over such clubs in terms of registration and their ability to serve intoxicating liquor. In addition, the authority will operate codes of practice. The Deputy's point is adequately covered in a much stronger way under the Registration of Clubs Act and where there is discrimination the intention is that the clubs involved will be dealt with under that Act.
I am not sure that the Registration of Clubs Act covers the point regarding the inability of certain categories of members to vote at general meetings or stand for office. It covers the intoxicating liquor area, but the issue of voting is still outstanding. The principle of only allowing certain categories of members to vote should not be upheld because it is unfair in terms of the democratic running of an organisation.
If we start to interfere in the legislation in the internal operations and workings of clubs, we will enter a minefield. While I accept the principle of what the Deputy is trying to achieve, I do not agree it is the most appropriate way to deal with the matter. The Registration of Clubs Act may have to be reconsidered but the sanctions available under it are much stronger than those proposed in the amendment. While I appreciate the Deputy's point, the feeling in the Department is that the amendment would not have the desired impact.
Although there is a right to revoke a licence from a club which discriminates, if the amendment is not included, will a club which will not allow women to vote in certain cases, such as those outlined by Deputy O'Sullivan, be covered by the Bill? For example, if a golf club in Dublin does not allow women to vote because of their associate status, can its licence be refused? If the amendment is not included, is it the case that it would not be refused?
It depends on the circumstances and it is a matter for the District Court to decide. If discriminatory factors were involved, it would be covered and the District Court would make a decision in that regard.
Would having a situation where only certain categories of members could vote constitute discriminatory grounds, which would enable a case to be taken in the District Court in the first place?
Yes, it may. Section 8(2) covers such a case. It states that for the purpose of the section, a club shall be considered to be a discriminating club if it has any rule, policy or practice which discriminates against a member or an applicant for membership.
That is useful information and it is good to clarify the point because it may mean that the point of Deputy O'Sullivan's amendment is potentially covered. However, as the Minister said, it would have to be tested in the District Court. Women golfers would prefer if it was specifically stated in the Bill, but it remains to be tested under section 8(2)(a)(i).
I received an inquiry from a member of the Irish Ladies Golfing Union about opening up full membership to women. Her complaint is that women who have had limited membership of clubs for years are being asked to pay full fees regardless of the amount they paid previously. I presume there is no way that aspect can be addressed in this Bill, but will the Minister point me in the direction of legislation which would give them leverage?
That point was dealt with yesterday.
I apologise, Chairman.
We will not go back to it. Is the amendment being pressed?
I wish to press it because I want this point covered in the legislation rather than have it tested in the courts.
I move amendment No. 65:
In page 14, subsection (2)(b), between lines 21 and 22, to insert the following:
"(iii) refusing or failing to do all that is reasonable to prevent sexual harassment from occurring in the club;".
The aim of the amendment is to strengthen the provisions in section 8 and to ensure that the code of practice that prevails includes an effort by the club to deal with sexual harassment. It should have a code of practice in relation to sexual harassment and if it is an issue, it should be seen to do something about it. That is the purpose of the amendment.
I support the amendment.
Section 8(2)(b) sets out certain matters listed in subparagraphs (i) and (iv) which, if done by the club or a person involved in its management on any one or other of the discriminatory grounds, would constitute evidence that the club is a discriminatory club and thus liable to the loss of its registration certificate. The Deputy's amendment proposes an additional ground to those listed, namely, that of refusing or failing to do all that is reasonable to prevent sexual harassment from occurring in the club. The Deputy has only focused on sexual harassment and not on other harassment within the meaning of section 11. If sexual harassment is envisaged as likely to occur, why would other harassment also not arise and in turn be liable to be deemed to be evidence for the purpose of determining that a club is discriminatory?
The items listed in subparagraphs (i) and (iv) refer to certain acts in each case where, when the club has to determine the matter, it will not be unduly difficult to assert whether the evidence goes against the club. For example, the person will or will not be admitted to membership, or different terms for membership will be put in place etc. Issues around sexual harassment could be considered more problematic in the context of a club, particularly if such harassment could occur not only between persons in authority and prospective members of the club but also between ordinary club members. It would be a draconian approach if an act of sexual harassment in a club bar resulted in the forfeiture of the club's drinks licence.
The purpose of the District Court hearing is specific, namely, to determine if the club has a rule, practice or policy which discriminates against a member or an applicant for membership, or that a person involved in the club's management discriminates against a member or an applicant for membership in relation to the club's affairs. With a view to retaining the focus of a District Court hearing in these matters, I would not be willing to enlarge the section in the manner advocated by the Deputy. Therefore, I cannot accept the amendment.
I accept the Minister's point that sexual harassment could occur between members of a club as opposed to between someone in authority and a club member. In a sense, this amendment recalls our discussion about the Bill's positive and proactive approach to the promotion of good practice. It is in that context that I recommend the amendment's inclusion. Will the Minister clarify where this is dealt with in the Bill if a person or group of people experience ongoing sexual harassment on club premises? Does he envisage that such harassment would be covered by the Bill? How would an individual initiate action in that regard?
We are not attempting to cover sexual harassment in the private sphere any more than it would be covered in any other situation.
What about the public sphere?
People have normal rights to deal with issues of persistent sexual harassment. It is not necessary to include that specific requirement in this part of the legislation.
I think it represents a gap in the legislation because the possibility for sexual harassment exists in a club setting. That should form one of the criteria under which a club would be assessed. I realise it is a difficult area but there is an ever-increasing awareness and definition of sexual harassment and I do not think it is unreasonable to seek to have it included in the Bill in order that it would be regarded as a discriminatory criteria which unduly affects people.
Deputy Fitzgerald and I have tabled amendment No. 74 to section 11 in regard to sexual and other types of harassment, in which we are seeking to include clubs. I know we are not dealing with the amendment at the moment but it relates to the same issue. The 1997 Bill includes harassment within clubs and partnerships under the sexual harassment section. I do not mind which section it is included in but it should be covered somewhere in the legislation.
Perhaps the Minister would clarify why that provision was dropped from the 1997 Bill? The sexual harassment section in this Bill is much weaker than in the 1997 Bill.
Sexual harassment is covered in this Bill in regard to the provision of the service. The inclusion of the Deputy's amendment would open a can of worms in the sense that it would make matters extremely difficult for the District Court. We wanted to keep the definition of "sexual harassment" tight and relevant, but the amendment relates to something which the Bill is not intended to cover.
A recent study from the Employment Equality Agency on this issue highlighted the fact that sexual harassment is a serious issue for huge numbers of workers. It is likely that it is also an issue in many other establishments, such as clubs, which could be covered by this legislation. We should try to convey a strongly worded message in this type of legislation in relation to sexual harassment. Obviously, the prospect of losing a licence is a major one for a club. This section of the Bill is weakened by the fact that funds are not now being denied to such clubs, as was the case under the 1997 legislation. I am curious as to why the section has beenwatered down.
This amendment is an important one which affects certain categories of people more than others. Sexual harassment is a very real problem. The figures from the Employment Equality Agency reveal that it is an issue in workplaces and I do not have any doubt but that it is also an issue in regard to the type of services this Bill intends to address. It is a shame such a provision is not included at a time when our awareness of this problem and our ability to define it has dramatically increased and when European codes of practice exist in regard to it.
It is possible that the provision could be provided for under the terms of the Bill. For example, where there are instances of institutionalised sexual harassment, the District Court can deal with them. The issue of funding is a separate matter.
I know, we will deal with that later.
The Deputy asked why the section has been watered down. Having obtained legal advice, it was felt that the proposals contained in the Bill represented the most effective way to deal with the issue. Where sexual harassment of a private nature occurs, it can be dealt with through other channels and it is not necessary to include it in this Bill.
I do not understand why people must resort to the courts where clubs are concerned whereas under the other categories under section 11, such as educational establishments, services, purchase of goods, premises, accommodation and so on, they have access to the Equality Authority in addition to the courts.
The District Court deals with the registration of clubs and that is why the issue is dealt with in that manner. If we were to deal with it in any other way, constitutional issues could arise.
It sends out a signal that clubs are not being covered by the provisions in regard to sexual harassment and that weakens the legislation.
If we were to include them, we would be discriminating against clubs which are obliged to register and those which are not.
I suppose it is a question of striking a balance between the private and constitutional rights of clubs versus an issue of the common good.
If we were to do what the Deputy is advocating, we would, in effect, be including an extra provision for registered clubs which would not apply to non-registered clubs and an issue of proportionality would arise.
Surely clubs must register in order that they can be regulated?
The issue of proportionality would arise if we were to do what the Deputy suggests. Institutions and clubs which are not registered would not be covered.
Deputy O'Sullivan's point is a relevant one. If a club or institution wishes to be eligible for registration, surely the State can impose some restrictions and criteria in that regard without infringing constitutionality. The argument we are making is that this is one of the criteria which should be built into that.
It can be built in and can be tied to the membership rather than to issues such as sexual harassment. While I accept the principle of the Deputies' remarks, the intent of their amendment is already provided for in legislation and, therefore, it is not necessary to duplicate it. By trying to solve a problem, one can sometimes make it more difficult to solve.
I do not believe that including this provision in the legislation would make it more difficult to solve this problem, rather it would lead to greater awareness and improved codes of practice. It would also create a sense of awareness of the issue which is lacking at present. I can see the Minister is not prepared to accept the amendment.
I move amendment No. 67:
In page 14, between lines 27 and 28, to insert the following subsection:
"(3) Where a club refuses to permit certain categories of members to vote at general meetings and stand for office in the management committee, the requirements of section 4(a) and (d) of the Registration of Clubs Act, 1904, shall be deemed to have been contravened.".
I move amendment No. 68:
In page 14, subsection (5), line 36, after "club" to insert "at its registered or head office".
This amendment seeks to ensure there is a definite mechanism for serving an application on a club at its registered or head office. It is fairly self-explanatory. We should specify where the application should be served.
The Registration of Clubs Act, 1904, employs the term "club premises". I understand that the actual certificate of registration also uses this term. I have not so far ascertained whether the term "head office" is used in relation to the court application process under this Act. I consider, however, given the type of club at which the provisions of the Equal Status Bill are targeted, an applicant will not have difficulty in serving the application specified in subsection (5) on the club at its club premises. Moreover, once a case of this type comes before the courts, the alleged discriminating club may endeavour to convince the District Court judge of a technical irregularity, such as an incorrect service by the applicant of the copy application at the wrong address. I hesitate to allow any scope for possibility of such procedural irregularity. The section as it stands is clear and, accordingly, I do not propose to accept the Deputy's amendment.
I do not feel very strongly about this point, so I will not press the amendment. Amendment, by leave, withdrawn.
Amendment No. 72 is an alternative to amendment No. 69 and both may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 69:
In page 15, between lines 27 and 28, to insert the following subsection:
"(11) A discriminating club shall not be entitled to grants from public funds or use of public facilities.".
The 1999 Bill does not contain a section which was contained in the 1997 Bill to the effect that while an order made under section 10 determining that a club is a discriminating club remains in effect, (a) no grant or loan of public funds shall be made to or in respect of the club and (b) the club shall not be provided with the use of publicly owned facilities that are intended for recreation.
The core of this discussion is what is done when a club has been found to discriminate under the Act. This Bill suggests that it should not get a drinks licence. The provision contained in the 1997 Bill stated that such a club should not get a grant or loan of public funds or receive support from State facilities paid for by the taxpayer while the discriminatory order remained in effect. It is a question of the degree of sanction to be implemented against discrimination. It is perfectly reasonable to say that no grant or loan of public funds should be given to a club which has been found to be discriminating. Why was that section deleted? I presume it was done on constitutional grounds. I am very surprised it was deleted and I think the amendment is very reasonable.
I fully support what Deputy Fitzgerald has said. We will greatly weaken the powers of sanction against clubs which discriminate if we remove the power to deny public funding. It is necessary to have that very strong sanction to use on clubs which are discriminating against any sector of the population covered by this legislation. If we do not include it, we will permit public money to be spent on clubs which are directly violating the legislation. I feel very strongly that we should restore this element to the legislation. It is not enough to deprive such clubs of an intoxicating liquor licence. The purpose of clubs is not to provide places for people to drink but to provide people with the opportunity to participate in certain shared activities. It is a sidelong approach to deal with the issue only in terms of the provision of a licence to serve intoxicating liquor. Such clubs should not be publicly funded if they are in violation of this legislation, which is concerned with outlawing discrimination.
I see the point of the amendment. However, on legal advice, the sole sanction against such clubs is now the removal of the drinks licence or the certificate of registration. Our advice is that it would be legitimate to refuse the grant of a drinks licence, which is a privilege enjoyed by a club conditional on the club not discriminating. However, the imposition of other penalties which would not apply to a discriminating non-registered club raised the question of proportionality. We, therefore, dropped the other penalties. The loss of the drinks licence alone would be a very effective sanction. Most public reaction to the registered clubs provisions of the 1997 Bill focused on the loss of the drinks licence.
The other point, from a practical point of view, is that clubs which could be described as being in this category are unlikely to look for or receive money from the State. We are focusing on a small number of golf clubs. We feel the principle is adequately provided for in the existing legislation and there is no need to include such a provision in this Bill.
Will the Minister of State clarify the position in regard to his legal advice? He has rejected many of our amendments on the basis of his legal advice in regard to registered and non-registered clubs. What is the point being made by the legal adviser in regard to this? It seems to focus not so much on the need for good sanctions against discrimination but on the fact that non-registered clubs would end up in a "more favoured" position than registered clubs.
That is the exact——
It seems rather arbitrary and not a sound enough reason not to have more detailed sanctions.
One can regard the certificate of registration as a privilege, but one cannot go beyond that. It is quite simple. One cannot discriminate between different types of clubs. That is where the question of proportionality comes into play and where a constitutional question could arise.
Is the Minister of State saying that discrimination legislation we pass does not apply to non-registered clubs?
The prohibition does not apply to private clubs, where a group of people mix together, and the sanctions of the District Court do not apply in the way they would to a registered club.
The Minister of State said that not much money from public sources would be made available to such clubs. I think the question of how much money is made available is an open one. For example, FÁS personnel, who receive a subsidy from the State, work in some of these clubs. They might also involve community employment schemes, and grants could be provided for the upgrading of services. Where there is a subsidy from the State, community employment schemes would be possibly involved and one could have grants for upgrading services. Therefore, I would not underestimate the amount of public money that may go into these clubs. I do not have a figure for it, but some public money is definitely going into some of these clubs. The drinks licence is obviously an issue, but equally, as a policy standard ormodus operandi, it is not good enough to put taxpayers’ money into supporting a club that is found by the District Court to be discriminatory.
The State should have a stronger sanction and the one I am recommending in this motion would operate while a club continues to discriminate. The club always has the choice of changing its discriminatory behaviour and getting its loans back. It is not the case that it cannot correct what is going on and regain the funds. In that context, it is fair to say that if a club chooses to discriminate, and a court has found this to be so, the State will not give money to such a club.
Yes, but that can be provided for administratively, whereby if the State is giving money to a particular club it can impose sanctions on an administrative basis to ensure that the club is complying. That is already being done by Bord Fáilte and others, including the Department of Tourism, Sport and Recreation.
Would it not be better to insert in statute the fact that these sanctions are there and that State money cannot be given to clubs that discriminate? Administratively, the same principle could be applied to non-registered clubs, in other words, to take a strong stand on the issue rather than the opposite position.
We would like to insert it under statute but we cannot do so for constitutional reasons.
Is the Minister saying this cannot be inserted because of the Constitution?
Yes, that is the legal advice.
It is not the legal advice that was given in 1997.
It was examined extensively following the referral to the courts when an indepth examination was undertaken. Even if we wanted to insert that provision, that is the strong legal advice I have received. I take the point, the Deputy is right in what she is saying. However, even if I wanted to do so, there is very strong advice that it would not be possible to change.
Was this tested in the courts?
It would make it very vulnerable to a test.
Yes, but it has never been tested.
The Supreme Court did not rule on it.
We now have a situation where administratively the Minister of State is saying the State is actually doing what I am suggesting should be done in this amendment. The Minister of State will not accept the amendment, however, because it is unconstitutional.
Would the Deputy take the risk of a legal challenge which would jeopardise the whole Bill, as would happen if we were to insert that amendment?
This is a dangerous discussion which we have had here on several occasions. If one is too conservative for fear of what might happen in the courts, one will not progress anti-discrimination legislation very much. There is a danger that one will end up with very weakened anti-discrimination legislation because one is consistently worried about the constitutionality test. It is a question of where one draws the line. If a club is found to discriminate against people by a court, it is reasonable to say that the State will not give it money. I would be prepared to test that in the Supreme Court. The State should not be giving money to clubs that discriminate. We have been waiting a long time for this Bill and we are as keen to see it on the Statute Book as is the Government. Obviously we do not want to take unnecessary risks by modifying the legislation, but if a court has found that a club discriminates, it is reasonable to expect that the State shall not give money to that club.
We have been dealing with this Bill for five years. It is extremely complex and has been to the Supreme Court. If the Opposition is saying that it is prepared to stand over another five year delay, I will certainly be prepared to consider it, if that is what the Opposition wants.
The Minister of State should not react in that tone to the points we are making about this issue. We obviously do not want to see the Bill delayed for five years——
That is the impact of what they are saying.
——but I will ask that the amendment be put.
The discussion is going around in circles. The Minister of State will obviously not accept the amendment because of the legal advice he has received.
That is fine. The Chair can put the amendment.
In fairness, we are entitled to know on what aspect of the Constitution the legal advice is based which says that this amendment would go against it. I cannot see the reason for that.
It is a question of proportionality.
We are not challenging the privacy of the clubs, we are challenging the fact that the State would give them money if they discriminate. Does that mean we should allow the State to give money to any organisation, no matter how it discriminates?
In effect, the Minister of State has already said that, administratively, the State is doing what I am saying it should do.
That is correct. There is no problem in that. The problem would arise if we were to insert the proposition the Deputy has made because we would then leave ourselves open to an inevitable challenge. This hugely complex issue has already been to the Supreme Court. If we were to leave——
This aspect has not been to the Supreme Court.
No, the whole Bill has. This amendment would expose the legislation to further challenge. The strong legal advice is that if we were to follow the Deputy's suggestion we would leave ourselves open to challenge. I am surprised the Deputy would be prepared, for the sake of a fairly minor part of the Bill, to push the possibility of a delay. That is inevitably what would be involved. The Deputy would regret it if I were to agree to it, even if I could.
I do not think it is minor. It is a major principle as to whether the State gives money to people who have been found to discriminate.
This is not going anywhere.
It is a very useful discussion because we are clarifying what the legal advice is, and that is important.
I know it is.
I move amendment No. 70:
In page 15, subsection (1)(c), line 45, to delete “provides” and substitute “exists primarily to provide”.
This is to prevent clubs from circumventing the rules by having a sporting dimension. If clubs discriminate between men and women and seek to circumvent the Act by saying this is for sports purposes, this must be the primary motive of the club. In other words, we do not want them to use sport as a way of discriminating between men and women. Obviously, certain races, sports or matches are specifically for men's or women's teams or male or female competitors. That is a fact of life in sport. We do not want clubs to use a sporting element to discriminate in a more general way between men and women.
Section 9 sets out the circumstances in which a club is not considered to be a discriminatory club. The provision in section 9(1)(c) is in respect of sporting events organised by people of a particular gender, age or disability. This provision is similar to the two earlier sections, namely, 5(2)(g), which covers the public generally in relation to such specially organised sports events, and section 7(4)(a), where the position of schools as regards such specialist sporting events is covered. A practical example of what this section covers is where a local sports club organises a sports day for a particular age group or for persons with a certain disability etc. This section means that the club would not be in contravention of the Act.
However, the Deputy's amendment would restrict the category of different treatment by a club only to those clubs whose purpose is to cater primarily for those persons of a particular gender, age etc. Only such specialised clubs, and not more general clubs, could organise such restricted sports events. I do not accept that the intention of the legislation is to prohibit general clubs, which are open to all, from organising occasional sports events which are restricted to certain categories. I cannot accept the amendment.
While I accept what the Minister of State has said, perhaps he understands my point. I do not want the clubs to use what is a justifiable out in terms of different categories in relation to sport to discriminate in a more general way. I do not know if there is another way of addressing the issue. The Minister of State will not accept the wording of the amendment, but I will accept his position if the issue is addressed in another way. However, I would like it to be covered in the Bill.
It is covered by the use of the words "reasonably justifiable" in section 9(1)(c).
Amendment No. 71, which proposes the substitution of the word "necessary" for "justifiable", will probably strengthen it. I will not press the amendment. However, the point it addresses is important and I may resubmit it on Report Stage.
I move amendment No. 71:
In page 15, subsection (1)(c), line 49, to delete "justifiable" and substitute "necessary".
This amendment tightens the exemption for different treatment in the area of sport as applied to registered clubs. It brings the exemption into line with the provisions of sections 5(2)(g) and 7(4)(a).
I agree that this strengthens these provisions.
I move amendment No. 72:
In page 16, line 10, before "Notwithstanding" to insert the following subsection:
"(1) Notwithstanding anything in any other Act, while an order made under section 8 determining that a club is a discriminating club remains in effect-
(a) no grant or loan of public funds shall be made to or in respect of the club, and
(b) the club shall not be provided with the use of publicly-owned facilities that are intended for recreation.".
I move amendment No. 73:
In page 16, between lines 29 and 30, to insert the following subsection:
"(2) Subsection (1)(b) shall apply only to the first application under subsection (10) of section 8 made subsequent to any order under that section.".
This would mean that a club could not indefinitely put off the evil day by submitting multiple applications that it is not a discriminating club. It would be allowed only one application.
We are not allowing multiple applications. The position is watertight. I am not sure of the purpose of the amendment, which apparently seeks to preclude multiple applications. I do not believe that is necessary. Either the order is revised or the certification of registration lapses, but it should not be possible for a club to hold out indefinitely against the forfeiture of the certificate of registration.
If the Minister of State is satisfied the point is already covered I will withdraw the amendment.
I move amendment No. 74:
In page 16, subsection (1), between lines 35 and 36, to insert the following:
"(b) is a member of or has applied for membership of, or avails or seeks to avail of any service offered by any organisation, club, association or similarly entity in which the person is in a position of authority,
(c) is a partner or has applied to be admitted to partnership in a firm in which the person is in a position of authority,".
This restores the ban on harassment in clubs and partnerships, which was in the 1997 Bill but which the Minister deleted. We debated this point already when considering a previous amendment in the name of Deputy Fitzgerald. I then indicated that this amendment proposed an alternative way of dealing with the question of harassment in clubs. It addresses the issue under section 11, which deals with sexual and other harassment. Clubs, and in this instance partnerships, should not be exempt from the legislative provisions on harassment.
When we discussed this issue yesterday we argued that it is not covered under legislation but that it should be. The Minister undertook to discuss the matter with the Tánaiste and Minster for Enterprise, Trade and Employment, Deputy Harney, in the context of her proposed legislation on companies. We welcome that, but the issue should be addressed in this legislation.
Do you propose to wait until the Minister has discussed the matter with the Tánaiste?
No. While we are pleased at the Minister's undertaking to discuss the matter with the Tánaiste, we believe it should be addressed in this legislation. It is not covered by legislation.
I move amendment No. 75:
In page 17, subsection (2), line 35, after "who" to insert "contravenes subsection (1) or who".
This would make it an offence to publish a discriminatory advertisement rather than just make a false statement to secure publication. The Bill provides that it is an offence to make a false statement, but it would not be an offence to publish the article in which it was made. Subsection (1) states that a person "shall not publish or display or cause to be published or displayed an advertisement. . . ". However, no offence is created here. This amendment would make it an offence not only to make a false statement but also to publish or display it. It is a strengthening measure.
It can either be an offence or referred to the director, but it cannot be both. A twin track approach is not possible. We consider it more appropriate and effective to have the matter referred to the director. That is why we must reject the amendment.
The making of a false statement would be subject to the courts whereas the advertising would be subject to the authority. Is that the position?
However, it is not possible to combine the two.
It is either one or the other. I will not press the amendment at this stage. I will need to reconsider it.
I move amendment No. 76:
In page 18, paragraph (a)(i), line 3, to delete "enactment or".
Under the terms of this legislation any other Act automatically overrides this Act. I am, therefore, seeking to make this legislation primary, where the principle of non-discrimination would be the primary principle in legislative terms.
That is why paragraph (a) is included. It includes the following:
(a) the taking of any action that is required by or under-
(i) any enactment or order of a court,
This exemption applies only to actions which are mandatory under the relevant statute, and not to the discovery actions of statutory bodies or public officials. Lest there be any doubt about it, even where a matter is exempt under section 14, the obligation not to discriminate will apply to the interaction between officials and the public and the delivery of the relevant statutory function. For example, the fact that the requirements of the tax code are exempt does not allow Revenue officials to discriminate on matters such as access to buildings, information, advice or other forms of assistance.
I am concerned to ensure that the anti-discrimination measures would not be superseded by anything in other legislation. Is the Minister satisfied that is the case and this anti-discrimination legislation cannot be undermined in any way by the use of other legislation because of the inclusion of section 14, which provides that nothing in this legislation shall be construed as prohibiting the taking of any action required by or under any enactment or order of a court, etc.?
One must assume that what the Oireachtas enacts will not be undermined. There are other similar items of legislation. For instance, this reference also appears in the Equal Status Bill, 1997. Distinctions in the tax code based on marital status or in the social welfare code based on age for pensions, for example, would not be regarded as discrimination under the equal status legislation. We are satisfied that it will not be undermined.
Amendment No. 77 is in the name of the Minister. Amendment No. 1 to amendment No. 77 and amendment No. 80 are related, amendments Nos. 78 and 79 are alternatives to amendment No. 77 and amendment No. 81 is cognate with amendment No. 1 to amendment No. 77. Therefore, amendment No. 77, amendment No. 1 to amendment No. 77 and amendments Nos. 78 to 81, inclusive, may be discussed together by agreement.
I move amendment No. 77:
In page 19, lines 9 to 19, to delete subsections (1) and (2) and substitute the following:
"(1) The Minister may, with the agreement of the Minister for Public Enterprise, make regulations requiring that new road or rail passenger vehicles which-
(a) are purchased or leased by an operator of a passenger road service or passenger rail service, and
(b) are to be used for the purposes of either such service,
shall be equipped so as to be readily accessible to and usable by persons with a disability.
(2) Regulations undersubsection (1) shall not apply to an operator whose principal place of business is outside the State.”.
I move amendment No. 1 to amendment No. 77:
In the first line of subsection (1), to delete "with the agreement of" and substitute "after consultation with".
This is a matter of tidying up the amendments. My amendments are intended in the interests of clarity. I recommend their acceptance.
What we have here is a positive statement, that road or rail passenger vehicles being ordered or supplied, purchased or leased for service shall be equipped so as to be readily accessible and usable by persons with a disability. This would mean that what happened last year, when buses which were not accessible were ordered, could not happen again under the legislation. Is that correct?
Yes, once there is a regulation made. However, we are not covering taxis by this.
One would assume if public transport vehicles were being ordered, such as Luas vehicles, buses or trains, that a regulation would be made. What would the criteria be for making a regulation in this regard, given that it is stated clearly in the legislation that it should be usable by persons with a disability?
It would have to be done for categories of transport and in co-operation with the Minister with responsibility for transport.
One would assume that it would be done, given that it is stated clearly here in legislation in a positive way. I welcome that.
I assume that where the Bill states that the regulations shall not apply to an operator whose principle place of business is outside the State, that relates to airlines. Is that the reason that provision has been inserted there?
No. This takes account of the practical reality that there are tour companies whose buses come to Ireland from Britain, France and Germany.
Amendment No. 79 seeks to remove the exclusion of taxis so that they come under the legislation.
The Minister is amending the Bill to exclude taxis, which were entitled to address the issue.
Taxis were not included in the Deputy's Bill either.
They are included in the Bill, as circulated.
But when the Deputy was in Government——
I was never in Government. I published a Bill in 1998 which dealt with this issue.
They were exempted both in the 1997 Bill and in this Bill. They were never intended to be——
Why did the Minister include them in the first place?
The section states the regulations shall not apply to taxis and we are seeking to delete it to make sure that they are covered.
I welcome that we are seeking to address the discrimination issue in the transport sector because we are all aware of the serious problems people with a disability encounter on buses, trains and taxis, although the position with taxis has improved in some parts of the country. I was at a meeting——
On which amendment is the Deputy speaking?
I am speaking about my amendment, amendment No. 1 to amendment No. 77. Amendment No. 81 makes a similar point. I seek to provide in the Bill that it will be "after consultation with" the Minister rather than "with the agreement of" the Minister because I want the anti-discrimination aspect of public transport to be the primary concern. I am not saying anything against the current Minister for Public Enterprise, but I am saying that the view of the Department which deals with people with disabilities should take precedence in terms of providing access to public vehicles, including buses and trains.
Recently I was at a public meeting of the Irish Wheelchair Association in Clontarf. We have met Vantastic, the Forum for People with Disabilities and a variety of organisations representing people with disabilities. They tell heartbreaking stories about trying to get around given the inaccessibility of buses and trains.
We must address this issue in the mainstream. We must make sure that any plans for future purchases of or changes to buses, trains and general public service vehicles, which is why I want to include taxis in this provision, should guarantee the rights of people with disabilities to get around in the same way as I or anybody else in this room has a right to access public transport. Only by ensuring that this issue is put centre stage in the provision of public transport will we address the serious problems which people with disabilities experience. Relatively recently Dublin Bus bought buses which are not accessible to people with a disability - this does not just relate to Dublin Bus only but also to CIE, including Iarnród Éireann - and this shows the serious inadequacies in terms of access to public transport.
My amendment seeks to address the fact that it should not be necessary to get the agreement of the Minister for Public Enterprise but that there should be consultation with that Minister. The Department which deals with the rights of people with disabilities should take priority.
This was decided in January 1997 when the Deputy's party was in Government. It was expressly stated that the word "agreement" would be included. We are merely following on from that. There is no advantage in accepting the amendment which runs counter to the expressed wishes of the Deputy's party in Government.
I do not hold any brief for what was done in the past. This is a new Bill and it is our duty, as legislators, to try to make it as strong as possible in terms of the rights of people with disabilities. In my opinion the amendment would make a stronger case in respect of the importance of "mainstreaming" access to transport for people with disabilities.
I take Deputy O'Sullivan's point. However, I welcome the fact that it will be laid down in statute that regulations can be made to ensure that any road or rail passenger vehicles purchased in the future shall be equipped in order to be readily accessible to and useable by persons with disabilities. That is extremely important in light of recent experience. One must assume that the Minister for Public Enterprise would be equally willing to ensure that regulations would be laid down on this matter, given its importance, people's awareness of it and the enormous difficulties encountered by those with disabilities trying to travel around our capital city, not to mention the remainder of the country. If accepted, the amendment would make the provision stronger because the Minister charged with responsibility for equality issues would be responsible for framing the regulations which would mean that they would be influenced primarily by equality interests as opposed to the strong vested interests in transport.
The Minister for Public Enterprise, Deputy O'Rourke, is committed to ensuring that public transport facilities become fully accessible as soon as possible. It can be anticipated that she will do the right thing. As I said earlier, however, it has been expressly stated that the word "agreement" is necessary and I am not prepared to change my position in that regard.
I move amendment No. 80:
In page 19, between lines 29 and 30, to insert the following subsection:
"(4) In subsection (1) 'operator of a passenger road service' means an operator of a passenger road service as defined in section 2 of the Road Transport Act, 1932, including an operator who is, by virtue of the Transport Act, 1958, exempt from the requirement to hold a passenger licence under the first-mentioned Act.".
I move amendment No. 82:
In page 19, lines 34 and 35, to delete subsection (2).
I briefly addressed this point earlier. In the amended legislation there is no reference to taxis. Section 17(2)(a) states that regulations under subsection (1) shall not apply to a vehicle that is designed for private use or for use as a taxi or hackney.
We are dealing with section 18, amendment No. 82.
I apologise, I thought we were dealing with amendment No. 81.
The amendment was not moved.
My mistake. The purpose of amendment No. 82 is to delete section 18(2) which states that the definition of the word "stations" in subsection (1) "does not include any premises at those stations that are not normally used by bus or rail passengers." This is unduly restrictive and I believe these areas should be covered because staff will be affected. There are areas which would not normally be used by bus and rail passengers but which they might use occasionally. Such areas should be covered by the legislation.
I support Deputy Fitzgerald's remarks. The Irish Council for Civil Liberties was concerned about the inclusion of this subsection in the Bill.
If, as Deputy Fitzgerald says, staff may be affected the matter is covered under the Employment Equality Act. The Department of Public Enterprise suggested that we should exclude parking, garage and maintenance buildings from the definition of "stations" and restrict section 18(1) to those buildings that provide facilities for passengers. Since the regulations envisaged under section 18 (1) would be aimed at passengers with a disabilities, any bus garages, service depots, etc. will not need to be covered because such locations are rarely used by passengers, whether with or without a disability. Therefore, I do not propose to accept the amendment.
There is no mention of regulations relating to stations under the Employment Equality Act and if a station is being made accessible for use by people with disabilities it is important that the entire area of the station be covered and that the benefits should extend to employees as well as to the public. The subsection seems to be unduly restrictive and unnecessary.
Why should we include stations no more than any other area?
The reason we tabled the amendment is because the definition contained in the section is to restrictive and narrow. It seems strange to apply the definition to part of a station and not the entire area it covers.
We are discussing passengers with disabilities.
Yes, but the subsection refers to "premises at those stations that are not normally used by bus or rail passengers". This could mean that parts of stations would not be accessible despite the fact that passengers may use them on occasion.
Amendment No. 83 is out of order as it involves a charge on the Revenue.
I do not believe it would involve a very large cost.
That does not matter.
Perhaps the Minister of State will take it on board and pass it on to the Department of the Environment and Local Government.
Amendment No. 84, amendments Nos. 1, 1a, 3 to 6, inclusive, 6a, 6b, 6c, 7, 8 and 9 to amendment No. 84 and amendment No. 85 are related and may be taken together. Is that agreed? Agreed.
I move amendment No. 84:
In page 20, before section 21, to insert the following new section:
"21.-(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director.
(2) Before seeking redress under this section the complainant-
(a) shall, within two months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within two months after the last such occurrence, notify the respondent in writing of-
(i) the nature of the allegation,
(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress by referring the case to the Director,
(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.
(3) The Director shall not investigate a case unless he or she is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.
(4) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).
(5) Subject to subsection (6), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.
(6) If, on application by the complainant, the Director is satisfied that exceptional circumstances prevented the complainant's case from being referred within the time limit specified in subsection (5-
(a) the Director may direct that, in relation to that case, subsection (5) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction, and
(b) where such a direction is given, this Part shall have effect accordingly.
(7) Information is material information for the purposes of this section if it is-
(a) information as to the respondent's reasons for doing or omitting to do any relevant act and as to any practices or procedures material to any such act,
(b) information, other than confidential information, about the treatment of other persons who stand in relation to the respondent in the same or a similar position as the complainant, or
(c) other information which is not confidential information and which, in the circumstances of the case in question, it is reasonable for the complainant to require.
(8) In subsection (7) 'confidential information' means any information which relates to a particular individual, which can be identified as so relating and to the disclosure of which that individual does not agree.
(9) This section is without prejudice to the other provisions of this Act relating to the obtaining of information.".
I propose to substantially amend sections 21 and 22, which deal with the procedures by which a person can seek redress. My amendments are intended to rationalise these sections and take on board some of the comments which have been made since the Bill was published. In section 21(1) of the Bill, as initiated, a person could refer a claim of prohibitive conduct through the director even though that claim concerned another person. I propose to confine the right to bring a complaint to the person claiming discrimination.
The existing provision was highly unusual. I am not aware of a comparable provision elsewhere in statute and it could have allowed busybodies to bring claims where the person affected is unwilling to do so, embarrassed about the possible publicity or simply not bothered about the matter. It is a matter of commonsense that the complainant must be the person affected. Under section 24 the authority can refer certain cases to the director, including cases where it is not reasonable to expect the person to do so.
However, I am conscious that many people will want the support and representation of others in bringing cases to the director. It is entirely reasonable that a person bringing a complaint could be assisted or represented by a friend, trade union or organisation. This has been the practice under previous employment equality legislation on an administrative basis. I expect this practice to continue. My officials have been in contact with the office of the Director of Equality Investigations about this issue and there will not be a problem with the continuance on an administrative basis of these arrangements.
In section 21(2) and (4) I propose to rationalise the procedure for notifying the respondent of the allegation of discrimination. I have retained in section 21(2) the requirement that the complainant must notify the respondent within two months of the alleged discrimination as it serves a vital purpose in putting the respondent on notice and allowing him or her the opportunity to redress the matter at an early date. Given the transient nature of the making of the contacts covered by the equal status legislation - service in a bar is an example - it would not be desirable to have such claims sprung on the respondent many months after the incident in question occurred. I have received representations for the shortening of the period from two months to one and it has been suggested that one week would be appropriate in some cases.
The issue was extensively discussed on Committee Stage during the passage of the 1997 Bill and I do not wish to repeat all the points made then. However, I propose to drop the requirement that the complainant specify the remedy sought as this does not serve any useful purpose. I am also making changes in regard to the information to be provided by the respondent in reply to the notification. Whereas the respondent previously had a reasonable time in which to reply and the complainant had to wait, I am providing that the complainant can go ahead if he or she has not received a reply within one month. This does not prevent the respondent replying at a later date but it means that the complainant can pursue the case if the reply is not issued.
Deputies will note that I am merging what was section 22 of the Bill, as initiated, with section 21. This means that the respondent's reply to the initial notification and the material information to be provided to the complainant to enable him or her to decide whether to take the case are the same. Subsections (7) and (8) of the amendment clarify what is meant by material and confidential information in any response to the complainant. They are modelled on section 76 of the Employment Equality Act, 1998. Amendment No. 85 is linked to amendment No. 84 as the person bringing the complaint now must be the person affected by the prohibitive conduct. He or she has a sufficient interest in the matter.
I move amendment No. 1 to amendment No. 84:
In the first line of subsection (1), after "person" to insert "or organisation".
We had a full discussion on this yesterday. I attempted to ensure that a group of people could bring forward a case as opposed to an individual and it was rejected by the Minister. I will not press the amendment. I welcome some of the changes made by the Minister. For example, dropping the requirement to specify the remedy sought is helpful.
Amendment No. 3 to amendment No. 84 seeks to allow another person to act on an individual's behalf. The timescale involved is short. With regard to the redress in respect of prohibitive conduct the section provides that a complaint must be lodged with the director of investigations within two months but I want to amend that to six months. It can be difficult sometimes for people to take cases. I am also seeking an amendment whereby in certain cases the director can inform a respondent because it may not be feasible for a variety of reasons for the complainant to contact the respondent directly. I want to include a provision that would allow the complainant to have the support of the director in making the case. I am not sure whether that is legally feasible but it can be difficult for the complainant to make a discrimination case directly to the respondent and another mechanism may be needed. Leeway would be given to the authority to act on behalf of the complainant and it is worth considering. Another of my amendments refers to legal aid but that has been deemed inadmissible because of the cost involved.
I welcome the positive changes made by the Minister but I wish to refer to my amendments. Amendment No. 3 to amendment No. 84 involves a proposal that another person might be able to make the complaint on behalf of the complainant. I requested this on the basis that some complainants with a disability might not be able to give notice in writing and, therefore, they should be able to authorise somebody else to give the notice for them. I also tabled an amendment to change the timescale involved in informing the respondent from six to two months. It is feasible to give people a reasonable length of time in which to make a complaint.
I am not happy with some changes. Section 21(2)(b) states "..may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director, question the respondent in writing. . . ". Amendment No. 6a to amendment No. 84 proposes that the complainant may also question the respondent subsequent to notification and provide further information to the director. Amendment No. 6b to amendment No. 84 is similar. There should be ongoing provision of information. Section 21(2)(b) states "the respondent may, if the respondent so wishes, reply to any such questions." That is a weakening of the Bill as initiated and that is why I tabled amendment No. 6c to amendment No. 84. I would like to restore the word "shall", in other words, the person against whom the complaint is made would have to reply to the issues raised by the complainant. I would be concerned if that were weakened.
The issue of time raised by Deputy Fitzgerald was discussedad nauseam in the earlier discussions in 1997. Cases were made for the length of time to be from two weeks to a much longer period as required. In the interest of getting the balance right, it was decided that the aggrieved person would have two months to make contact with the respondent and that up to six months would be given for communication with the director. The authority is the advisory body to assist the person. Taking all matters into account and in trying to get the balance right, the two month and six month time limitation is reasonable and I hope the Deputy accepts that.
A person not being able to take a case on behalf of someone else does not preclude a complainant from obtaining assistance from another person. That seemed to be Deputy O'Sullivan's concern. The authority would act as advisory body and could take cases, if necessary. It is common sense that a person would not be allowed to take a case on behalf of someone else because it could result in people becoming involved who have no interest in the matters in hand.
Regarding Deputy O'Sullivan's other point, it would not be appropriate to require the respondent to reply to a complainant's request for information and we have amended this section accordingly. Not only would it be legally questionable, it would be difficult to see what it would achieve. Furthermore, it would create an inconsistency with comparable provisions in section 76 of the Employment Equality Act. The respondent may reply within the one month period specified, may reply later or may not reply at all. There may well be circumstances where, although the respondent has good reasons for his actions, he or she is not prepared to disclose them at the initial stages of the process. This has to be allowed for and the imposition of a duty on the respondent would not do this.
Will the Minister of State address my amendments Nos. 6 and 7 to amendment No. 84? They make the point that in some cases the complainant may not feel able to contact the respondent directly and they allow the director to act on behalf of the complainant. What is the Minister of State's response to that? Is that feasible?
The Equality Authority would be the first port of call for most equal status cases and it will have the function of assisting people to bring complaints. Therefore, the authority would be the appropriate body to facilitate a complainant in notifying the director and providing forms, advice and so on. However, the core complainant must be the person affected by the alleged discrimination.
What about the first contact within the two month period?
The authority can also assist with that.
Could the authority do that directly?
However, the Minister of State does not believe the director could take up that role?
No, it is not an appropriate role.
The purpose of amendment No. 6c is to obtain material information. If the complainant needs certain information from the respondent so that he or she can make the case to the director, but the respondent decides not to give it - there might be genuine practical material to which the complainant does not have access but the respondent does because he or she is in a stronger position in terms of the running of the organisation - it would be more effective in terms of conducting an investigation if there were a mechanism whereby such information would have to be furnished rather than it being provided at the discretion of the respondent. It seems to be contrary to the ethos of freedom of information and natural justice in that if full information is not provided, the director cannot make a fully informed decision on a case. I do not understand why such information does not have to be given. It could be given to the director if it has to be given to someone who is not necessarily the respondent. It is important that all information relating to a case is supplied. Ideally, as in a court of law where one would be entitled to any information before the court relevant to one's case, a person in these circumstances should be entitled to any information relevant to the case.
The respondent cannot be forced to provide information. However, the director can draw inferences from the reply supplied or from the failure to reply and this is dealt with in section 27. The failure of the respondent to reply is a matter the director would take into account. He or she can investigate the situation. Failure to reply would obviously amount to failure to defend one's case, which would surely be in the interests of the victim to a large degree.
The measure should be in line with courts and other forms of investigation, such as tribunals, for example, where information sought must be given.
The director has strong powers under section 34 to deal with that situation.
Will the Minister of State elaborate further on the issue of the timescale? Amendment No. 8 to amendment No. 84 reads: "In exceptional circumstances the time frame for lodging a complaint under subsection (2) may be extended to 12 months".
The Minister of State, in his work in the area of children and child care services, will be aware of the issue of timeframes, for example, in another area with which we have dealt and which has received a great deal of public attention, that is, child sexual abuse. A comparison can be drawn with the area of discrimination in some ways in that when people are vulnerable and are discriminated against or have an injustice perpetrated on them, the timeframe for gaining the confidence to deal with it can be long. Often the discrimination is ongoing and it takes some time for the person to have the confidence to do something and to know what resources are available to do it. In that context, I welcome the advertising by the Equality Authority since it was established. It is good to see that proactive type of dissemination of information to the public. Surely we should allow in the Bill a section or amendment which states that the timeframe can be extended in exceptional circumstances.
It will be found that a timeframe of two months in this area is too short. The Minister of State should think of other areas which have come to notice where something has continued for years and people have waited years before going to court and seeking redress or telling someone. The same applies in the area of discrimination. We must be careful about not having an unduly tight timeframe because it will mean that people will find that it is too late to take a case. Many people who would have used the legislation will not be able to do so because the timeframe is so short. Does any section of the Bill cover what might be called exceptional circumstances where, for a variety of reasons, the person has not lodged a complaint?
What would the Deputy define as exceptional circumstances?
One would have to look at each case but there may be a combination of factors which result in a person being unable to make a complaint. They could include, for example, mental health factors where the person was so depressed by what had been happening that they were unable to initiate a complaint. That is one example but there could be quite a number of cases where that would apply when discrimination has been serious and ongoing. One could build in criteria which would define "exceptional".
As regards the issue of ongoing, it is the last event——
Yes, I appreciate that it is the last event——
——that counts. I accept the Deputy's point but in the interests of balancing the rights of the complainant and the respondent and taking into account that cases were made by a variety of people for periods from two weeks to 12 months, it was necessary to define a specific timescale. I accept the Deputy's point about exceptional circumstances but there is a feeling that two months is a reasonable period.
Eight weeks is a very short period from the last discriminatory event. Anyone with experience in this area knows that by the time people objectively realise what is going on, get the confidence to do something about it and realise that the mechanisms are there to do something, eight weeks is a very short period in which to initiate action. Before Report Stage will the Minister of State look at the issue of exceptional circumstances to see if it could be built into the Bill?
Would it be possible to include a provision which would stipulate that the director would have discretion to accept late applications in very exceptional circumstances? This would place the emphasis on the director's judgment with regard to extending the time period.
Part of the difficulty is that if one extends the period for too long one leaves the respondent in a difficult situation as regards being able to remember. For argument's sake, if there is an incident in a crowded bar and someone comes back six months later it may be difficult for the respondent to remember exactly what happened. Extending the period on the basis of exceptional circumstances could make it more difficult to have a proper investigation if the respondent claims that the incident was six months ago and cannot remember what happened.
I agree that the complaint would be less likely to be successful but it does not take from the point that one could still have cases which could go on——
We will examine whether there is any way in which the director could have some——
I appreciate the Minister of State's undertaking and I withdraw the amendment. I may come back on this on Report Stage.
I move amendment No. 1a to amendment No. 84:
In the second line of subsection (1), to delete "him or her" and substitute "any person (where the first-mentioned person has a sufficient interest in the matter)".
Amendment No. 2 to amendment No. 84 is out of order.
Amendment No. 3 to amendment No. 84 has already been discussed. Is the amendment being pressed?
The Minister gave an undertaking that he would look at this issue.
I move amendment No. 4 to amendment No. 84:
In the first line of subsection (2)(a), to delete "two" and substitute "6".
I move amendment No. 6 to amendment No. 84:
In the fourth line of subsection (2)(a), after "respondent" to insert "or the Director has, in certain cases, informed and contacted the respondent".
I move amendment No. 6a to amendment No. 84:
In the first line of subsection (2)(b), after "notification" to insert "or subsequently".
I move amendment No. 6b to amendment No. 84:
In the second line of subsection (2)(b), after "Director" to insert "or in the prosecution of the case".
I move amendment No. 6c to amendment No. 84:
In the fourth line of subsection (2)(b), to delete "may, if the respondent so wishes," and substitute "shall".
I move amendment No. 8 to amendment No. 84:
Before subsection (3), to insert the following subsection:
"(3) In exceptional circumstances the time frame for lodging a complaint under subsection (2) may be extended to 12 months.".
Amendment No. 85 has already been discussed with amendment No. 84. Acceptance of this amendment involves the deletion of section 23.
I move amendment No. 85:
In page 21, before section 23, to insert the following new section:
"23.-The Director may dismiss a claim at any stage in the investigation if he or she is of the opinion that the claim has been made in bad faith or is frivolous or vexatious or relates to a trivial matter.".
I move amendment No. 86:
In page 21, subsection (1)(b), line 31, after "12(1)" to insert ", 13(1)".
These amendments seek to restore a provision from the 1997 Bill to the effect that the authority can investigate procurement of discrimination. Why was this element removed from the Bill?
It is an offence. As I explained earlier one cannot have an offence and a referral to the director.
It is the same point made earlier - one has one or the other but not both.
I said that I would look at this issue and reserve the right to come back on it.
I move amendment No. 88:
In page 23, subsection (1), line 8, after "heard" to insert "by themselves or their representatives".
This goes back to allowing people with disabilities or anyone else covered by the Bill to be heard through their representatives. It is the same point requested by the Irish Congress of Trade Unions: that people who might have difficulty in representing themselves could have someone else to represent them.
We have already explained that assistance can be given by someone else as long as it is not totally on behalf of an organisation. They should be acting on the person's behalf and not according to their own interests. There is no problem with people being assisted by friends or the authorities.
It would be helpful to have this in the legislation. My amendment asks that provision be made for representation to be made on behalf of the complainant by a representative to the director. It is necessary to insert into the statute that representation can be made on a person's behalf. Where is this covered in the Bill now?
It has been accepted practice for 22 years and it is felt that it is adequately covered on the administrative side. If it is inserted into the Bill there may be difficulties with validation. Existing practice shows that people are assisted by trade unions or friends and that system works satisfactorily.
Is it envisaged that the same will happen under the Equal Status Bill?
I move amendment No. 90:
In page 23, before section 27, to insert the following new section:
"27.-If, in the course of an investigation under section 26, it appears to the Director-
(a) that the respondent did not reply to a notification under section 21(2)(a) or to any question asked by the complainant under section 21(2)(b),
(b) that the information supplied by the respondent in response to the notification or any such question was false or misleading, or
(c) that the information supplied in response to any such question was not such as would assist the complainant in deciding whether to refer the case to the Director,
the Director may draw such inferences, if any, as seem appropriate from the failure to reply or, as the case may be, the supply of information as mentioned in paragraph (b) or (c).".
The amendment is intended to made clearer the circumstances in which the director may draw inferences from the respondent's failure to provide information or from the information provided. It is consistent with section 81 of the Employment Equality Act.
I made this point earlier.
This is a positive amendment which strengthens the complainant's case considerably.
I move amendment No. 92:
In page 24, subsection (1), lines 7 and 8, to delete paragraphs (a) and (b).
The effect of this amendment is that all decisions must be reasoned. This is in keeping with modern administrative law.
The section to which this amendment refers provides that the director of equality investigations must give his or her decision in writing. In addition the director is obliged to give his or her reasons for the conclusion reached in the case where it is considered appropriate to do so or if requested to do so by one of the parties in the case. The wording here is identical to that in the Employment Equality Act. The effect of this amendment would be to remove the element of flexibility which is considered important, for example, in a sexual harassment case it may not be considered appropriate, or the parties to the case may prefer not to include information in the final decision of the determination. At the same time the provision ensures that the parties may require a reason for the decision from the director if they so wish.
Why is it not automatic for the information to be given?
Because of the need for flexibility.
I will not withdraw this amendment. It is important that decisions should be given irrespective of the director's opinion and irrespective of anyone requesting it. It should be normal practice that any decisions in relation to judgments should be handed out.
If parties do not want the information, it would be unfair. It is identical to the Employment Equality Act, which works extremely well.
The decision must be in writing so why would the reasons not go with it automatically?
Because personal details may be embarrassing and people may not want to have such details released.
That is a reasonable explanation.
I move amendment No. 93:
In page 24, between lines 10 and 11, to insert the following subsection:
"(2) The Director shall give notice of a decision in a format accessible to a complainant with a disability, and shall in general adopt such procedures as will facilitate the participation of persons with disabilities including receiving submissions made through sign language or other formats.".
This is self-explanatory. It ensures that information is given in accordance with the needs of the person concerned - the need for sign language for example.
It goes without saying that we accept the point made. The new director has given a commitment that the best service, training and professional manner will be in place to meet the needs of clients and to make a real contribution to the prevention of discrimination. I agree with the Deputy.
A number of those who made submissions made this point repeatedly.
We accept this, we are giving the administrative remit to the director.
Will it be put in the Bill?
The powers given to the Minister under section 42 to regulate the procedures of the director can also be used if necessary.
Is the Minister saying it will not be necessary?
It should be in the Bill as opposed to being left to the director. I do not doubt that the director will want to communicate in whatever way the client understands, but it would be useful for this provision to be in the Bill.
We will look at that favourably.
I move amendment No. 94:
In page 28, subsection (2), line 14, to delete "As" and substitute "Before and as".
The Bill would allow cases to be struck out without prior notice to a complainant. This amendment addresses that problem.
I am reluctant to accept the amendment. The principal difficulty in giving notice in writing to complainants about the striking out of reference is that it is not always possible to locate them. Often the reason for the lapse in pursuing a case on the part of a complainant may be connected to a change of residence or emigration. Deputies can be assured that it is the current practice to notify a complainant, if contactable, of the intention to strike out or provide every opportunity to reactivate the reference. This practice will continue in the office of the director.
The amendment will ensure that the past designated officer, as well as the present designated officer, is included It is not a significant point and I do not wish to take up the committee's time.
I move amendment No. 95:
In page 31, before section 48, to insert the following new section:
"48.-The Employment Equality Act, 1998, is hereby amended by the insertion of the following section after section 105:
106.-(1) This section applies to a claim for redress under a repealed enactment-
(a) which is made on or after the commencement of Part VII (the "commencement date"),
(b) which relates-
(i) only to conduct before the commencement date or,
(ii) to conduct both before and after that date.
(2) In this section-
"commencement date" means the 18th day of October, 1999;
"conduct" means conduct alleged to have occured;
"repealed enactment" means the Anti-Discrimination (Pay) Act, 1974 (except section 9), or the Employment Equality Act, 1977 (except section 19).
(3) A claim for redress to which this section applies shall-
(a) as regards the substance of the claim-
(i) if or in so far as the claim relates to conduct before the commencement date, be dealt with as if the enactment concerned had not been repealed, and
(ii) in so far as it may relate to conduct after that date, be dealt with under this Act,
(b) in all other respects, be dealt with as if it were a claim under section 77.
(4) For the purposes of subsection (3)-
(a) the claim concerned shall be referred or brought to the Director, the Labour Court or the Circuit Court, as appropriate, and
(b) Part VII shall apply in relation to it, with the modification that sections 76 and 82 shall not apply in relation to a case referred to in paragraph (a)(i) of that subsection and with any other necessary modifications.
(5) A claim for redress under a repealed enactment which is pending on the commencement date shall, if the conduct to which it relates also occurs after that date, be treated as if it were a claim for redress to which this section applies, and accordingly subsections (3) and (4) shall apply in relation to it.
(6) A decision or determination on a claim for redress referred to in this section may, and at the request of the claimant shall, where appropriate, specify separate findings in relation to conduct before and after the commencement date.
(7) The Director or a person appointed under section 75(4)(a) to be an equality officer may exercise the powers of an equality officer under the Anti-Discrimination (Pay) Act, 1974, or the Employment Equality Act, 1977.
(8) This section shall be deemed to have come into operation on the commencment date.'.".
The amendment sets out the transitional procedures to be followed in relation to certain gender employment cases and these transitional arrangements are in line with the usual legal construction in relation to cases which are pending under repealed enactments.
Amendment No. 96 is out of order as it would impose a potential charge on the Revenue.
Amendments No. 103 and 97 are related. Amendment No. 102 is consequential on amendment No. 104 and amendment No. 104 is related to amendment No. 103. Amendments Nos. 97, 102, 103 and 104 may be discussed together, by agreement.
I move amendment No. 97:
In page 31, paragraph (a), line 9, to delete "VII" and substitute "VI".
The effect of these amendments is to allow the authority to do an equality review on equal status matters.
I move amendment No. 98:
In page 31, between lines 12 and 13, to insert the following:
"(b) in section 6(2) by the addition of the following paragraph after paragraph (i)-
(j) that one is a member of a trade union and the other is not (in the Act referred to as the "trade union membership ground").'."
Amendments Nos. 99 and 100 are consequential on amendment No. 101. Amendments Nos. 99, 100 and 101 may be discussed together, by agreement.
I move amendment No. 99:
In page 32, paragraph 9(f)(ii), line 21, to delete "subsection" and substitute "subsections".
These amendments relate to the jurisdiction of the District Court in relation to appeals against non-discrimination notices relating to equal status matters.
I move amendment No. 100:
In page 32, paragraph (f)(ii), to delete line 30 and substitute "Court.".
I move amendment No. 101:
In page 32, paragraph (f), between lines 30 and 31, to insert the following:
"(7) The jurisdiction of the District Court under this section shall be exercised by a judge of that Court for the time being assigned to the discrict court district in which the person on whom the non-discrimination notice has been served ordinarily resides or carries on any profession, business or occupation.',".
I move amendment No. 102:
In page 33, paragraph (g), line 8, to delete "Act.'." and substitute "Act.',".
I move amendment No. 103:
In page 33, after line 8, to insert the following paragraphs:
"(h) in section 68 (definition (Part VI), by the deletion of 'under section 71(3)' and the substitution of ', or the District Court, under section 71',
(i) in section 69 (equality reviews and action plans) by-
(i) the deletion in subsection (1)(a) of 'in employment',
(ii) the substitution in subsection (1)(b) of 'to that business or those businesses' for 'to that employment ' and 'therein' for ' in that employment',
(iii) the deletion in subsection (2) of 'in employment' and the substitution of 'therein' for 'in that employment',
(iv) the insertion of the following subsection after subsection (2);
'(2A) An equality review or an equality action plan which relates to matters governed both by this Act and by theEqual Status Act, 1999, shall deal separately with those matters, and the separate portions of the review or plan shall be treated, for the purposes of this Part, as an equality review or an equality action plan.’,
(v) the deletion in subsection (6) of 'in an employment', and
(vi) the substitution of the following subsection for subsection (7):
'(7) For the purposes of this section:
(a) "business" includes-
(i) an activity giving rise to employment, whether or not in the industrial or commercial field and whether or not with a view to profit, and
(ii) subject to clause (II) of this subparagraph, the provision of services by the provider of a service (within the meaning ofsection 4(5) of the Equal Status Act 1999), and accordingly this section shall apply in relation to the provision of such services with the modifications that-
(I) the reference in subsection (1)(a) to a particular business shall be construed as including a reference to the provision of particular services, and
(II) the references in subsections (4) and (5) to a business shall be construed as including references to a provider of a service (within the meaning of the saidsection 4(5), other than paragraph (f) thereof), and any other necessary modifications;
(b) a "group of businesses" may be defined by reference to geographical location instead of (or as well as) by reference to control or any other factor.',
(j) in section 70(1)(a) (enforcement powers in respect of equality reviews and action plans) by the insertion of 'is' before 'required', and (k) in section 71 (appeal against substantive notice) by——
(i) the substitution of the following subsection for subsection (1):
'(1) Subject to subsection (6), a person on whom a substantive notice has been served may appeal to the Labour Court within 42 days of the date of service against the notice or any requirement of the notice.',
(ii) the insertion of the following subsections after subsection (5):
'(6) Where a substantive notice concerns an equality review or equality action plan, or a proposed such review or plan, which relates to matters governed by theEqual Status Act, 1999, the person on whom the notice has been served may appeal to the District Court against the notice, and for that purpose references in this section to the Labour Court shall be construed as references to the District Court.
(7) The jurisdiction of the District Court under this section shall be exercised by a judge of that Court for the time being assigned to the district court district in which the person on whom the substantive notice was served ordinarily resides or carries on any profession, business or occupation.'.".
I thank the Minister for Justice Equality and Law Reform and the Minister of State, Deputy Fahey, for their undertakings to consider amendments and to return to them on Report Stage. The Minister has accepted or undertaken to review a number of significant amendments. I pay tribute to the staff of the Minister's office who have worked enormously hard during this administration and the previous one on the details of this Bill. I am aware of the technical nature of the Bill and of the great amount of work involved as a result of the referral of the Bill to the Supreme Court.
I join Deputy Fitzgerald in thanking the Minister, the Minister of State and their officials. We have given them a great deal of work but we all wish to ensure that we have strong legislation to deal with discrimination and to accompany the Employment Equality Act.
The constitutional requirements make legislation regarding disability particularly difficult. This must be addressed in a different way.
I thank the Deputies for the amount of work they have done on this complex legislation which I came to quite late. I might have wished to accept some of the amendments put forward put I am bound by strict legal limitations. The debate has been useful. I thank the officials of the Department for their work. This will be good legislation. I thank you, Chairman, and the staff of the committee.
I thank the committee and the committee staff.