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Select Committee on Social Affairs debate -
Thursday, 21 Nov 1996

SECTION 5.

Question proposed: "That section 5 stand part of the Bill".

This section deals with repeals and consequential amendments. It proposes to repeal the Anti-Discrimination (Pay) Act, 1974, and most sections of the Employment Equality Act, 1977. This will have the effect of leaving some of the interpretations in the 1977 legislation stand, while amending others and including new interpretations.

The Irish Congress of Trade Unions is concerned that this could cause confusion and that there will have to be continuing reference to the 1977 Act. It recommended that the Employment Equality Act, 1977, should be repealed in full and re-enacted where required in this new Bill. What are the Minister's views?

It is intended that the remainder of the 1977 Act which is not repealed in this Bill will be repealed in the Equal Status Bill. When this Bill and the Equal Status Bill are enacted the entirety of the 1974 and 1977 Acts will be fully repealed. The relevant legislation which will comprehensively deal with these issues will be this Bill, which deals with employment matters, and the equal status Bill, which deals with access to goods and services.

It is not a totally consolidating position — there would be one Bill dealing with the whole lot if it was. However, it is close enough. Two Bills will remain and the divide will be between this Bill, which deals with employment related matters, and the equal status Bill which will deal primarily with access to goods and services. It is a measure of consolidation. The key point is that the 1974 and 1977 Acts will be gone at that stage.

It effectively means there are two foundation stones for the whole process: the equal status Bill and the employment equality Bill. That is probably what is causing some of the confusion. There is a large amount of consolidation and updating as well as the introduction of new measures in the two Bills.

In an ideal world there would be one Act, perhaps called the Equality Act, which would deal with everything. However, it was not really feasible to initiate these extensive new provisions in one Bill. For that reason, I determined at the beginning of the Labour-Fianna Fáil Government to take two bites at the cherry and to make the divide between this Bill, which deals with employment related matters, and the second which will protect the same categories of people but will deal with the access to goods and services element of the equality issue. The then Government gave me leave to proceed on that basis and that leave was continued by the present Government.

The only problem is that a bird cannot fly on one wing. When does the Minister hopes to have the equal status Bill on the table?

This measure is not a bird; there is no lightweight, feathery material here. This is very hard core, important, radical, developmental material.

Nor is it an albatross.

I am happy to reassure Deputy Woods that when this Bill is enacted it will be fully self-contained and operational, and able to stand on its own feet. The equal status Bill will deal with a different range of matters and will complete the arrangements for the agency. That combined package will transform our equality legislation. It is unfortunate that it has taken until now to bring forward this legislation. I am pleased that the Labour Party, initially in consultation with Fianna Fáil and subsequently with Fine Gael and Democratic Left, is bringing forward this legislation.

Is the Minister sure about Democratic Left?

What I am sure about is that the Progressive Democrats did not do anything about it.

That is not fair.

Whether it is fair or unfair, it is true.

How many years has the Labour Party been in Government?

I asked the Minister when the Bill will be on the table.

I hope to publish it before the end of this year. Obviously, I cannot give a specific date as it depends on a number of factors outside my control such as availability of resources to complete it. This Government is engaged in a great amount of important work and resources are finite. However, that remains my hope.

Question put and agreed to.
SECTION 6.

Amendment No. 6 has already been discussed with amendment No. 4. Does Deputy Keogh wish to press the amendment?

I move amendment No. 6:

In page 12, subsection (2)(d) line 22, after "are" to insert "or are believed to be".

This section relates to grounds, which we have already discussed. Discrimination against a person who is believed to be of a different sexual orientation should be as unacceptable as discrimination against a person who has declared themselves to be of a different sexual orientation. I hope the Minister will look kindly on this amendment.

The amendment states "believed to be" which is a very doubtful approach. The danger of attempting to look into people's minds to determine their intentions comes into play there. It is a difficult area and I cannot accept the amendment.

Amendment, by leave, withdrawn.

Amendment No. 20 is related to amendment No. 7 and amendments Nos. 21 and 22 are alternatives to amendment No. 20. Amendments Nos. 7, 20, 21 and 22 may be discussed together by agreement. Is that agreed?

You read from a list of amendments but that is the first we have heard of the grouping.

Amendments Nos. 7, 20, 21 and 22 can be discussed together if the Committee agrees. Is that agreed? Agreed.

I move amendment No. 7:

In page 12, subsection (2)(d), line 23, after "ground')" to insert "save that this ground shall not apply where a person admits to being a paedophile or where a person has a conviction for an offence involving the sexual abuse of a person under the age of 18, in work situations which involve access to, or control of, minors".

Section 6(1) states:

For this purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.

Section 6(2) states: "As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—", while subsection (2)(d) states: "that they are of different sexual orientation ("the sexual orientation ground");". Discrimination against people of different sexual orientation is forbidden. My amendment states:

. . . "save that this ground shall not apply where a person admits to being a paedophile or where a person has a conviction for an offence involving the sexual abuse of a person under the age of 18, in work situations which involve access to, or control of, minors".

The legislation provides that it will not be possible to discriminate between people on the grounds of sexual orientation, including homosexuality and lesbianism. We asked the Minister to define this and Deputy Keogh requested a broader definition of the term "sexual orientation". However, he refused to go further than what is set out in the Bill.

We are seeking to ensure that it will be possible to discriminate against convicted paedophiles on the grounds that they will not be allowed to teach, or be involved with minors. Given the many and increasing number of situations in which children are being abused we wish to ensure the legislation does not prove to be a barrier to those wishing to ensure their safety, for example, by seeking to implement codes of practice.

I would have preferred to discuss amendment No. 20 in the context of section 16. The amendment states:

In page 19, subsection (4), to delete all words from and including "of the" in line 44 down to and including line 49 and in page 20 to delete line 1 and substitute the following:

"or information from a health board or a member an Garda Síochána, that the individual engages in, or has a propensity to engage in, any form of sexual behaviour which is prohibited by law.".

If the objective of section 16(4) is to combat paedophilia it should do so in conformity with other legislation, such as the Child Care Act, 1991, or guidelines issued by the Department of Health. However, the terms of the section are rather sweeping, which leave it open to challenge. For example, the term "reliable information" could damage the intent, which is the welfare of children. The section could be construed as encompassing non criminal sexual behaviour and personal relationships of adult women and men. It detracts from the intent of protecting minors from the criminal and predatory actions of paedophiles.

Amendment No. 22 in the name of the Minister is to be welcomed.

I am pleased that we are ad idem.

I have a problem with the term "reliable information". How is reliable information of this kind obtained in the light of the Minister's comments on disabilities? Should people who may be impugned by rumour and discriminated against be included in the definition of "disability"? What is reliable information? Many people are prepared to say things about others that are not necessarily true. I am prepared to accept the amendment if the Minister will look at this aspect again. The term is too vague. For example, I may accept the Minister's opinion on another person which may not of itself be reliable information.

Amendment No. 21 is virtually identical to amendment No. 22 in the name of the Minister except that I have used the word "illegal" whereas he has used the word "unlawful". I am happy with the Minister's amendment because he uses the more correct term. It is the term that was used when the Special Criminal Court was unlawfully constituted.

However, it did nothing illegal.

That is correct.

I am pleased that Deputy Lynch is happy with my proposed amendment to this important section. I take her point on the term "reliable information". It is a very difficult area and we worked long and hard on this dilemma. We are dealing here with paedophilia and the protection of our children. In this context extraordinary care must be taken to ensure that we do not put any children at risk, especially when one considers how paedophiles operate.

I fight shy of putting ourselves in the position of being accused at some stage that we saw the type of circumstances at play but did not include a provision to keep such persons away from children. It is a difficult area and if people have better ideas on how to cope with it I ask them to convey them to me. We worked long and hard on it but the subject is particularly sensitive. If it was an ordinary difficult position, I would not use those words. However, paedophilia and the protection of children are involved. I considered the matter in depth and I felt I had to go to extreme lengths to ensure that under no possible circumstances were children put at risk by a paedophile. If it dealt with any subject other than paedophilia and the protection of children, I may have approached it differently.

It is a difficulty and I take Deputy Lynch's valid and fair point. However, this is my objective and the thought process behind it and why it is in that format. I am glad Deputies appear to agree my amendment is a major improvement in the section. I will keep an open mind on the issue generally in terms of Report Stage and if Deputy Lynch or others wish to make further comments, I will consider them sympathetically. However, I ask Deputies to bear in mind that the stakes are very high on this issue. We would all feel sorry for ourselves if we found that laxity, or carelessness with regard to taking care of our children led to a paedophile having access to them. They can work in very underhand ways and great protection is needed in this area.

I welcome the Minister's amendment. It is important to underscore the welfare of children and I appreciate the Minister's amendment in that regard. My point was that encompassing non criminal sexual behaviour and the personal relationships of adults would detract from the purpose of the section which was not the intention. The amendment tightens up that aspect and I am happy to accept it. I had a problem with the term "reliable information" but that aspect can be considered again.

It is a difficult area but we should leave it there for now and consider it again. It was put to me by a number of sources that, even with that wording, the protection for children is not sufficient and it should be broader. A balance must be struck but in terms of leaning in one direction or another, the only direction I can favour is the minimum possible risk to children. This forms the basis of the subsection and I appreciate Deputies' comments on this difficult area.

Is the amendment withdrawn?

No. The Minister met my point in relation to section 16 and amendment No. 21.

We are not taking a decision on amendment No. 21 although we are discussing it.

I will not withdraw amendment No. 7 to section 6 because it is important. It provides that one may discriminate in those circumstances for the protection of persons under the age of 18 in work situations which involve access to, or control of, minors. I ask the Minister to consider the amendment for Report Stage.

I will do that.

On that basis I will withdraw amendment No. 7.

Amendment, by leave, withdrawn.

I move amendment No. 8:

In page 12, subsection (2), between lines 35 and 36, to insert the following:

"(j) that one believes himself or herself to be of a gender other than that specified in his or her birth certificate and the other believes himself or herself to be of the gender so specified ('the transsexuality ground');".

The section deals with discrimination and the amendment seeks to tidy up this aspect. The provision should take on board cases before the courts in relation to discrimination. In a small number of cases people are brought up as one sex but later believe themselves to be of the opposite sex. This is often accompanied by the presence or absence of some biological characteristics. In some jurisdictions these people seek to alter their status in terms of gender in the civil courts or seek protection from discrimination. I understand some cases are before the courts, including the European Court of Justice. My amendment seeks to ensure that discrimination in employment against such persons compared to persons of fixed biological sex is prohibited and recognised as a gender ground. I realise it involves a small number of cases but perhaps it could be included in the Bill.

The issue raised by Deputy Keogh in the amendment is to extend protection under the Bill to transsexuals. When the Bill was being prepared, the legal adviser became acquainted with the ruling of the European Court of Justice in a United Kingdom case in which a transsexual sought to establish that discriminatory treatment of transsexuals is on the grounds of sex and is accordingly prohibited under Council Directive 76/207 on equal treatment of men and women in employment. The European Court of Justice found that such discrimination is based essentially, if not exclusively, on the sex of the person concerned and accordingly ruled that Council Directive 76/207 precluded the dismissal of a transsexual for a reason related to a gender reassignment.

In view of this ruling, section 6 was examined to consider if there were any implications for Ireland. My advice is clear that section 6(2)(a) defining the gender ground can be interpreted in line with the European Court of Justice judgment and, therefore, there is no need to amend the Bill in this respect.

It is covered in the section?

That is my advice.

Amendment, by leave, withdrawn.

Amendments Nos. 10 and 11 are related to amendment No. 9 and all may be discussed together. Is that agreed? Agreed.

I move amendment No. 9:

In page 12, subsection (2), between lines 35 and 36, to insert the following:

"(k) that one has a particular political opinion or belief and the other does not ('the political opinion ground');".

The section covers the grounds of discrimination and the amendment seeks to extend the political opinion ground. Many people are concerned that political beliefs are covered by the Bill. It is a fundamental human right supported by the International Human Rights Conventions and Instruments. The absence of such freedoms in other jurisdictions has led to a great deal of criticism. If there was a provision in this Bill, it would go some way to permitting us to ratify the ILO Convention on non-discrimination which Ireland, the UK and Luxembourg have not ratified. There is widespread support for the inclusion of this ground in the Bill.

Deputy Keogh's amendments Nos. 9 and 10 treat political opinion and trade union membership separately. However, my amendment No. 11 does the same thing in one amendment. It states: "that one has different political beliefs and affiliations to the other or that one is a member of a trade union and the other is not.". I will be interested to hear the Minister's comments on this issue. People should not be discriminated against on the grounds of their political beliefs per se or membership of a trade union. This is important if we are to regard this as a developed society.

People are entitled to be involved in and be members of political parties. That is how democracy works, it works because people put time and energy into political parties and they represent the views of the people. That leads to a difference of opinion. When studying public administration many years ago I was taken with the view that one could not have politics unless there was a difference of opinion. It is because of differences of opinion that there is politics. If one stops to think, one realises the rest is public administration or straightforward dare I say it — bureaucracy.

We will have a difference of opinion on these amendments.

It is important that people are free to have differences of opinion and to make their views known, but they should not subvert the institutions or businesses of which they are part. People should be free to associate with political parties and trade unions. When addressing this issue it is important to include the question of political beliefs and affiliations and membership of a trade union. We must ensure that in future it will not be possible to discriminate against people in employment on those grounds.

A proposal to add two new discriminatory grounds to the nine already provided for in the Bill cannot but be an attractive one to any Minister for Equality and Law Reform. Amendments tabled by Deputy Keogh and Deputy Woods identify trade union membership, political opinion and transsexuality as just three of a range of further options available to me if I was to open that Pandora's box — there could, indeed, be many more. I believe I have achieved progress on this difficult Bill because its scope, although quite broad, has remained focused.

The focus in this Bill has been to give effect to the Government's commitment to enact legislation which would outlaw discrimination on the grounds of sex, marital status, family status, sexual orientation, religious belief, age, disability, race and membership of the travelling community. There are, of course, many other grounds which could be considered but they will be matters for another time.

The Government, in bringing forward this legislation, has covered a very broad spectrum and is providing anti-discrimination protection to a wide range of groups who have had no protection since the foundation of the State. I do not claim the list is exhaustive but we would make great strides providing protection for these nine categories most of which have not had protection until now. Other grounds can be considered on another occasion.

We all know the Bill covers a wide remit, including gender, marital status, family status, sexual orientation, religious beliefs, disability, age, race and membership of the travelling community. I do not want to talk about transsexuals with the trade union membership and political opinions grounds because I am satisfied with what the Minister said in that regard. As I said, that only refers to a minority and is a tidying up exercise.

As regards my amendments on the political opinions and trade union membership grounds, the Minister is talking about issues which are pertinent to the political circumstances on this island. Political opinion is a ground at which we should look carefully because it is an obvious one to include. The Unfair Dismissals Act covers those in employment but we must consider access to employment for those who are known to be members of a trade union and who could be discriminated against. Those in employment can also be discriminated against in terms of promotion. These are very broad grounds to omit from the Bill.

The Minister said there are many grounds, but we should make a judgment on the most important ones. I submit that the political opinion ground is relevant to the situation on this island. Having listened to representatives of the trade union movement, membership of a trade union is a ground with much scope and deserves to be within the remit of the Bill.

I have difficulty with the Minister's reply. I am inclined to believe he agrees with us but that somebody is staying his hand behind the scenes. When we spoke about disability the Minister said his approach to this Bill was to include everybody and that if anyone had an amendment which would include others, he or she should table it.

That was under the disability heading.

This Bill will effectively allow for discrimination in employment. How can we say this Bill tackles discrimination? How can the Minister say he has introduced these rights and entitlements for Irish people but is not prepared to tackle discrimination on the grounds of political or trade union membership? I find it hard to understand how the Minister can do that. I also find it difficult to understand how the Labour Party can oppose such a measure because the Irish Congress of Trade Unions wants it to eliminate discrimination because of trade union membership and political affiliations.

We should not and cannot discriminate against people because they are members of a political party. RTÉ is interviewing for the post of Director General and a former major political figure will a member of the interview board. When this happens, how do we know he will not discriminate against people applying for jobs? The Minister says he will not discriminate but still will not remove the discrimination. To agree with the Minister would be to condone discrimination on the grounds of political or trade union membership. If we are to become the open and transparent society to which we aspire and be mature in our approach, we should not discriminate against people on the grounds of membership of a political party. If that message is sent out, we are doing a great disservice to those who work for political parties. We would give a bad message saying, in effect, that we turn a blind eye to discrimination on political grounds and would not tackle the issue and ensure discrimination does not take place. To discriminate on political grounds is against our Constitution because people have the fundamental right of assembly. Discrimination on political grounds can permeate into various employments. The Minister, in his comprehensive definition of disability, included what people suffered from in the past as well as what they suffer at present. A parallel can be drawn with politics. People might have been members of political parties and might be discriminated against when it comes to employment and promotion. A change occurred some years ago where civil and public servants up to a certain grade were free to participate in political activity. Will that participation be held against them if they seek promotion? That is a serious question.

We are talking about Irish people at work. There should be no discrimination on either political grounds or membership of a trade union. That may create problems because some employers may not want trade union involvement or their employees to be members of a trade union. However, a person has a right to be a member of a trade union or a political party and should not be discriminated against on either ground. We are discussing important legislation which deals with such discrimination in employment. In my view, we are not doing our work if we do not include a provision in this Bill which puts an end to discrimination on the grounds of political or trade union membership.

I strongly urge the Minister to reconsider. He said he has closed his mind and will not act on it now but that he might act on it at another time and place and in another way. That sounds to me as if there is someone behind the scenes who is holding back the Minister and saying he cannot do this. There are only three people behind the scenes: the Taoiseach, the Tánaiste and the Minister for Social Welfare, the three Government party leaders. I appeal to the Minister and, through him, to the three leaders of the Rainbow Coalition to examine what they ask us to do, to say it is not right, that we should not proceed along these lines and that we are not prepared to condone discrimination in these two vital areas in the life of our community and society. Let us be mature, open and transparent and start from this Bill with a new approach for the new millennium.

As I said on Second Stage, political belief is included under the Northern Ireland Fair Employment Act. I suggest it would be very unwise to proceed with this legislation on discrimination in employment when more widely encompassing legislation applies in Northern Ireland. We should have a similar definition to what is incorporated in that Act.

I am a reasonable person but I find it hard to take from Deputy Woods and Deputy Keogh that, when this Government brings forward this radical and extensive Bill providing anti-discrimination measures on a range of grounds, they talk about the Government's attitude to discrimination. Did the Progressive Democrats or Fianna Fáil introduce anti-discrimination legislation before 1993, when Labour was in Government? Did they outlaw discrimination against members of the travelling community? They did not — it was never suggested nor was it in their programme for Government. Did they outlaw discrimination on the grounds of race, colour, nationality or ethnic origins? They did not. What about the big issue of disability? People with disabilities make up 10 per cent of our population. This Government, for the first time ever, is introducing a Bill to make it unlawful to discriminate on the grounds of disability, age, religious belief, sexual orientation and family status. This is a broad spectrum range yet the Opposition talk about this Government's attitude to discrimination when they did absolutely nothing.

We have identified nine categories of people in our introduction of anti-discrimination measures. Did the Opposition even talk about it before? Did it ever cross their minds? They are now concerned about membership of trade unions and political opinion. What was their position on those with disabilities, on sexual orientation, on members of the travelling community and on race, religion and colour? They never spoke about it, mentioned it or raised it. They had no interest in the subject whatsoever. As far as those successive Governments were concerned, that range of discrimination could go on.

This Government feels differently. We identified nine categories to provide protection within the ambit of this legislation, which is remarkable. We could have introduced a disabilities act, such as the much vaunted, and wonderful, Americans with Disabilities Act, 1990, which deals only with those with disabilities. I and this Government could have done that but we were interested in the broad spectrum. That is not to say I am not unsympathetic to other categories. The numbers of categories for this purpose is potentially endless. Perhaps at a further stage, inclusion of other categories will become appropriate.

This legislation is complex and each category has its own complexities. It is difficult to strike a balance in dealing with sexual orientation. The category of religious beliefs also presents huge difficulties. One does not act casually in introducing a Bill like this and we cannot arbitrarily add other categories to the list. Each has its own problems which would have to be analysed. Exceptions would have to be worked out as well as what is appropriate. The Americans concentrated on disability and nothing else. We cover nine categories, but some of those are composite categories with three or four different divisions.

This is major legislation which we should push through, put into operation and then consider what additional categories may be appropriate. The categories proposed here may not have merit either, but broadly speaking they do. One would have to work out the particular situations that would apply to other categories and I do not want to hold up this legislation on that account. Those with disabilities, members of the travelling community, those of minority religions and races are waiting. We want to proceed. That is my position on these amendments. I sympathise with them in broad terms but at this point, I regret I cannot accept them.

The Minister mentioned the report on disabilities published earlier this week. Can he get copies for the Opposition spokespeople? The media received them.

The report of the commission?

Yes. I do not know whether it was an oversight but in other Departments reports are issued to Opposition spokespeople.

I was in Cork. We have only just come back.

Post is non-existent there.

I will not follow the Minister's trail as he knows Fianna Fáil and Labour were both involved in the previous Government and in the early stages of this legislation. We are now dealing with this section. The Minister says he would like to include the amendments but there are too many complications at this time and he needs to consider some aspects of them. The Minister defended his position so strongly that I wonder if he feels he will not be allowed to include these amendments and consequently has to go on the attack rather than take the rational approach of discussion.

Wishful thinking.

The Minister is asking us to ignore this aspect of the Bill. It cannot be ignored. It is not as big a problem as he suggests. It is important we remove political discrimination, deal with the issues in relation to discrimination on grounds of trade union membership and tackle the practical problems. They are not so enormous that we cannot tackle them in this Bill. Nevertheless, it seems the Minister is determined not to follow that route. Consequently we will press our amendment.

I do not know why the Minister is so defensive.

I thought I was being aggressive.

That is defensive. We can all trade on other Government's performances. I can tell the Minister how many years the Labour Party were in Government over the last couple of years.

Look at what we have accomplished.

Who is to say had we been in the same position——

The Deputy's party was; it did not do it and it knows that.

The Labour Party was in that position before that.

They talked about it but did nothing.

Perhaps we put things in train.

Deputy Keogh will have her opportunity soon enough.

The Minister did not even countenance the Bill I introduced in relation to ownership of the marital home. That was something constructive I attempted to do during my first year as a Deputy and the Minister would not countenance it so nobody need tell me what one can or cannot do. The Minister would not even listen to something constructive.

I cannot see a huge impediment to including these amendments. The Minister has said the Bill has a wide scope and it behoves Members of the Opposition to try to improve it. The inclusion of the amendments would be a great improvement. The Minister generously said at the conclusion of his Second Stage speech that he would look favourably at amendments which were proposed to improve the Bill. These amendments would do that.

Amendment put and declared lost.
Amendments Nos. 10 and 11 not moved.

I move amendment No. 12:

In page 12, subsection (3)(b), line 38, to delete "18" and substitute "16".

This section outlines the grounds on which discrimination might occur. Subsection (3)(b) refers to a person under 18 years of age and, in effect, the subsection provides protection for people aged between 18 and 65 years. However, many people finish school and enter the workplace at 16 years of age so there is a danger that discrimination would occur when somebody is between 16 and 18 years of age.

The amendment proposes that the age threshold be lowered to 16 years. The National Youth Council of Ireland has expressed strong views on this matter. While it welcomes the Bill it has reservations about the implications of this subsection for young people. The subsection states:". . . treating that person more favourably or less favourably than another (whatever that other person's age) shall not be regarded as discrimination on the age ground.". Under the Protection of Young Persons Employment Bill, 1996, it is legal to be in full-time employment from the age of 16 while 16 year olds are also covered in social security legislation.

The council is concerned that this subsection would give no legal redress to persons aged 17 years being paid a lower wage for the same work than a person over 18 years. The same might apply to a person aged over 65 years. The council believes the provision should be amended. It also believes young people need to be protected from the stress involved in positions which entail overall responsibility for the welfare of other people. Therefore, the amendments to the Bill should not preclude employers from protecting a person aged below 18 years from managerial responsibility for the welfare of other people.

Will the Minister explain why he decided to use the figure 18 and not 16? Sixteen is the age at which people are usually drawn into the social security system and at which many leave compulsory education. Children between 16 and 18 years, as well as those over 18 years, need to be protected in employment. The purpose of the amendment is to lower the age threshold to 16 years.

I support the amendment in light of the submission from the National Youth Council of Ireland. The council has reservations about the subsection and the amendment meets that concern.

Deputy Woods seeks to lower the age threshold in respect of which age discrimination in employment applies under the Bill. The age threshold of 18 years only applies in respect of age discrimination in employment. It has been removed under section 12 from discrimination in respect of vocational training where the minimum statutory school leaving age is the threshold. Moreover, the age threshold of 18 years does not apply in respect of protection against discrimination on all the other grounds covered by the Bill.

I appreciate that some explanation should be given for adopting 18 years as a threshold in the age discrimination context. The main reason for the threshold is the unique and special protection afforded to employees under the age of 18 years in the Protection of Young Persons Employment Act, 1996. This legislation is comprehensive in its safeguards for young workers. The existence of such legislation indicates that special treatment of such workers is warranted.

Inclusion of under 18 year olds in the Bill would create a potentially confusing legal framework for the employment of such young workers. There are a number of special features arising for this age category in employment. While the Protection of Young Persons Employment Act, 1996, mainly addresses the health and safety concerns for young workers, other considerations also point to the value of facilitating special arrangements for under 18 year olds. In particular, there arises the transition from school to work which is particularly important for workers in this category as it is comprised mainly of early school leavers with minimum qualifications.

In the Bill I have sought to ensure protection against discrimination in employment for 16 to 18 year olds in the workforce on all grounds. Special treatment on age grounds is justified for this category of workers and the operation of the age threshold of 18 facilitates such treatment in a context where statutory protection of such workers is explicitly provided in separate employment protection legislation exclusively targeted at their needs.

It is odd to exclude young people from the these provisions because, while the Protection of Young Persons (Employment) Act, 1996, deals particularly with health and safety, this type of discrimination is much more broadly based and that is where concerns arise. In effect we are saying that it is all right to have some forms of discrimination for those between the ages of 16 and 18. The Minister said that this could lead to confusion in the legislation in different situations but I see this as fundamental and basic legislation, and this brings me back to the definition of disability. The Minister wanted a comprehensive broad ranging definition which may in some respects create problems, but these should be tackled by specific legislation and looked at on Report Stage. However, he is saying the opposite in this section. Again it is a question of arguing from the particular to the general and vice versa. It is important that young people see that this legislation gives them protection. For instance, the Agricultural Wages Board always had different wage levels. At 16 a person got so many pounds per week, at 17 he got so much more and at 18 he received the full rate.

It could affect them adversely and could be more of a hindrance.

The Minister would have to look at how other legislation is working and the effect of the work practices involved. At present, supermarkets pay a rate for a job with so many hours punched in or piece work. It will not affect piece work or measurement of output in work. Perhaps the Minister will reflect on this amendment before Report Stage.

Amendment, by leave, withdrawn.

Before we move on, I have received the Civil Service memo which Deputy Woods requested. I recognise that because we have proceeded beyond section 2 where the Deputy requested the information about the Civil Service medical requirements there may be difficulty in circulating the information. It is probably procedurally in order to do so before section 6 is passed because there is reference also to disability grounds in subsection (2)(g). I will furnish the Deputy with the information if the Chair has no objection.

The Minister's proposal is in order, provided discussion on section 2 is not reopened. Members are sufficiently experienced to confine their remarks on this information to section 6.

Question proposed: "That section 6 stand part of the Bill."

Section 6 deals with discrimination for the purposes of this Bill and consequently it is a broad section. Section 6(2)(g) deals with disabled persons. With regard to the recruitment of people with disabilities and medical clearance for entry into the Civil Service, the memo refers particularly to a quota of 3 per cent for employment of people with disabilities in the public service. The broadening of the definition could relate to that and that could create problems which would have to be addressed separately. This is targeted at the current definitions and the second part of the memo deals with that.

The first part requires that a person be in good health, free from any physical defect or disease which would be likely to interfere with the proper discharge of his or her duties in that position and possesses the physical characteristics, if any, prescribed for a position by these regulations. The Minister's earlier comment is relevant because this definition would have to be re-examined in light of a new definition of disability. This specifically ties in "the health and physical defect or disease which would be likely to interfere with the proper discharge of his or her duties" with the ability to do the job, in a negative way. Those with disabilities wanted it to read where a person was capable of doing the duties given. In this it will depend on what range of duties are considered for any particular post and how open people are about that. I thank the Minister for making the information available. It is relevant and will have to be examined again once the legislation is passed.

With regard to the impact of new legislation, the Employment Equality Bill, 1996, will provide protections for people with disabilities within the meaning of the definition I am providing. It will help people and in certain situations will provide a remedy and give a right which they do not have at present. That is valuable and necessary.

It will mean the terms of reference for recruitment into the service will have to be changed. It will no longer be possible to discriminate on the basis of the elements contained in the present definition of disability in the Bill. We need to look further at the definition to see how it might be implemented. For entry to the Civil Service a person must be examined by a doctor and we do not know what elements of the definition might be likely to interfere with the proper discharge of duties.

The information note indicates that for most competitions candidates are required to complete a declaration regarding their current state of health and their medical history. It is not mandatory to have a medical examination; where it is considered necessary, the commissioners may request a candidate to provide further medical information. Will it become mandatory for everybody being recruited to undergo a medical examination?

Not having seen it previously, I cannot say whether this memorandum would require amendment after the Bill becomes law. The status of the document is a memorandum; the status of the Employment Equality Bill when enacted will be the law of the land and will supercede any memorandum by any employer. If a person has rights granted under the legislation they will have them by law and they cannot be affected by a memorandum. I would need time to study whether there is a variance between what is in the memorandum and what is in the Bill. When the law is enacted it will give those rights. If the memorandum provided a lesser degree of protection or rights, obviously the law would prevail. However, not having had a chance to analyse the matter I cannot say that is the case.

We are talking about discrimination for the purposes of this legislation. We are in the process of making the law. We are trying to see how the law will impinge on the practice. The memorandum refers to people with a disability and under the definition in the Bill there will be a wider range of people who are regarded as having a disability. If a candidate has to make a declaration he or she may be considered to have a disability according to the definition in the Bill.

The memorandum states that the commission will ensure that decisions are based on objective considerations, normally medical advice, rather than on assumptions. It also states that in the context of employment in the public service the term "people with disabilities" means people with ". . . physical, sensory or psychological impairments . . . "which may have a tangible impact on their capability to do a particular job, or their ability to function in a particular environment or lead to discrimination in obtaining or keeping employment to which they would otherwise be suited. If we agree to discrimination for the purposes of this Bill as set out, the provisions of the memorandum will have to be changed radically.

Will the Minister obtain for us the medical criteria involved when medical advice is sought?

I really do not think that is relevant.

It is relevant to the impact.

I want to be as helpful and as is reasonable as I can but we are straying beyond the bounds of the section. We are making a new law and it will supercede any memorandum of any public or private employer. Whatever basis they are operating on at present in this regard will not be relevant when the new law comes into operation. The new rights set out in this progressive legislation will be the binding authority for employers and employees.

Deputy Woods gives his opinion that this memorandum or guideline to the Civil Service Commissioners will have to be changed after the Bill is passed. He may be right, I do not know. However, I do not think we need concern ourselves unduly with it because, whether it is amended, the legal rights given under this new legislation will prevail for a person who feels he or she has been discriminated against. The remedies and rights given to them in this Bill will be at their disposal whether the memorandum is changed.

If the Civil Service Commissioners examine the memorandum when the Bill is enacted I have no doubt they will make adjustments they feel appropriate to bring it into line with the law. I do not think it need concern us at this point. Deputy Woods is looking backwards. The Government is looking forward to new rights and criteria being operative which are progressive and in tandem with the needs of the 1990s.

Deputy Woods has many years experience as a Minister and his insights are interesting. There is a concern about the practical implications of the definition of disability in the Bill when it comes to recruitment criteria. People are concerned about the practical implications of the Bill and the protections involved. Will this make life more difficult for people with disabilities? There are issues which need to be addressed. It is interesting to think about the practical implications of the medical criteria for entry to the Civil Service. No doubt that interpretation will be carried right throughout the public and private sectors.

The Minister said we are dealing with the theory here and to let us get on with it. Of course we are all in favour of rights and against discrimination but in dealing with the theories we must look at how they will impinge in practice. When we discussed some of the detail earlier there was a significant lack of practical information about how these developments and changes would work in practice.

As the Minister pointed out, the situation is evolving. He has been negotiating with the Disability Federation of Ireland as recently as the last few days and they are coming around to the point where they see they could possibly match the objectives of this Bill but we want to know the implications of what we are doing. The State is by far the biggest employer in the public sector. Some people are excluded from that employment at interview on medical grounds and others are included who have a medical history. If we are discussing discrimination in this respect, the one issue which has been raised by the Irish Congress of Trade Union and which arises here is that it may be necessary to test everybody for appointment on medical grounds.

The definition here is similar to that Deputy Keogh and I were putting forward earlier. It is obvious that the terms of reference for employment within the public service must be changed following the legislation. If that is how it must be, so be it but we should not try to hide that fact. We want to talk about the implications of what we are doing.

On the section which deals with the positive action measure as a means of increasing the number of people with disabilities in the Civil Service, that is, the competitions which are confined to candidates with a disability, the question which arises under the definition is "who is regarded as having a disability?". These are practical implications. We do not want to press the Minister unduly but we want to tease out these matters and examine them. The purpose of Committee Stage is that we will have a greater knowledge of the Bill, that we will know what is likely to happen and we will be better able to give informed advice to people who still ask us about these issues.

Question put and agreed to.

Before we proceed to another long section as 4.30 p.m. approaches, do Members wish to continue?

We might as well break at this point.

I would like to dispose of amendment No. 13.

That would involve addressing another section. I would prefer to break now at the end of section 6.

That concludes the committee's business for today. I thank the Minister and his officials. We will resume consideration of the Bill at 2.30 p.m. on Tuesday, 26 November 1996, in the Seanad Chamber.

The Select Committee adjourned at 4.25 p.m.

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