Equal Status Bill, 1997: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. Lenihan

I referred earlier to the Department occupied by the Minister. I should have said that I was not expressing party policy in that respect but a personal view about the need to rationalise different Departments from time to time and to consider whether a more efficient distribution of their functions could be arranged. I also referred to the book by Fr. Micheál MacGréil, Prejudice in Ireland Revisited.

In discussing the philosophy of the Bill, the Minister drew attention to the fact that it is important Ireland complies with its international obligations. The legislation will allow us to meet our international obligations in certain respects. The inspiration for the Bill goes back some way in history. If one examines the 1916 Proclamation one will see a reference to equal rights and equal opportunities. A legislative measure dealing with negative discrimination is not the only method of securing equal rights and opportunities. Many other legal instruments and policies must be adopted to do it but the Minister conducted wide ranging consultations in relation to the Bill. As a result of these consultations, which extended over the entire span of two Governments, he has managed, close to the end of the second Administration, to produce a measure which has not evoked tremendous controversy. That is a great tribute to him.

Regarding the substance of sections 9 and 10, the Minister has provided two sanctions to deal with discriminating clubs. One is that they will not be able to obtain an intoxicating liquor licence and the other is that they will not be in a position to apply for funding from State sources. The most obvious example of that is national lottery allocations but I assume other funds become available from time to time. Does the provision in section 11(1)(a), which states "no grant or loan of public funds", extend to funds distributed or disbursed by a local authority as distinct from the State? How wide does the expression "public funds" extend? Does it relate to the Exchequer or money voted under the annual Appropriation Act or does it extend to local authorities, corporations set up under statute and companies in which the Minister has a shareholding? I ask the Minister to clarify this issue because it is uncertain.

Am I correct that the only clubs which will not be allowed to discriminate are those which are engaged in the consumption of alcohol? It appears that a club which does not need an intoxicating liquor licence for its purposes will be free to discriminate under the legislation. In enacting a measure dealing with equal status we find that a club which does not find it necessary to provide for the sale and consumption of intoxicating liquor on its premises is not capable of discriminating. That is an interesting assessment of the national character and a reminder of the central place alcohol has in national life. Is this desirable? In legislation such as this, should we consider other issues? I appreciate the Minister wants to conclude his wide-ranging consultations and that the list of bodies which might be captured by an extension in this respect would be more extensive. I interpret the Bill to mean that a club which does not have an intoxicating liquor licence but does discriminate will still not be able to obtain public funds.

Section 12 deals with sexual and other harassment, a topical subject in recent years. The person described in the Bill as the victim may have a separate civil remedy in respect of conduct which amounts to sexual harassment. It might be no harm to insert a subsection to state that the section's provisions are without prejudice to any rights a person may have in common law or equity to institute proceedings. The casual reader of this legislation and the explanatory documentation which I assume the Department will prepare, if it continues to exist, might be led into thinking that this is the sole remedy in the legal system.

The Bill provides an expeditious remedy. One will be able to go to the director, whose appointment is provided for in Part III, who may award damages up to the limit one may receive in the District Court. If an entire body was practising sexual harassment, I assume the authority could intervene and seek an injunction. This is without prejudice to the rights a person may enjoy in general law. Perhaps we should not comment in this forum on spent litigation but it was interesting to note in recent weeks how such litigation could give rise to great heat and public interest.

On the question of enforcement, the director will investigate any claims referred to him or her by the authority. A time limit is specified for the lodgement of an appeal by either party to the claim. This must be determined by the Circuit Court which may provide for any redress for which provision could have been made by the decision appealed against. I take it that the Circuit Court proceedings will be held in open court and that there will be no restrictions on publicity. I assume, however, that when the director is investigating a complaint the proceedings will be of a somewhat private and informal character. If there is an appeal, the documentation involved should be placed in the public arena. It is important, in the public interest, that any appeal proceedings are reported so that the public will be able to see how the legislation is being implemented. It is clear that this will be the case but this is a topical subject about which there is much anxiety. It relates to the publicity that should properly attach to most court proceedings.

The question of insurance and the arrangements made by insurance companies for wide categories of persons has been raised. This is a matter on which many Members receive representations. Any claims of discrimination will fall to be investigated under this measure. It will, however, be difficult for the director to establish the facts with insurance companies about these matters. Under the Bill, the authority may require any person, by notice delivered to that person, to supply such information as it specifies in the notice and requires for the purpose of the investigation and to produce any document specified; to summon witnesses and administer oaths or other appropriate declarations.

Should provision be made for some form of ex parte procedures in an appropriate case, albeit an extreme one? I am not generally well disposed to such procedures but they can be valuable in seeking to gather evidence. Under these procedures the authority, on its own motion and subject to court approval, would be able to intervene and acquire the information it requires for the proper investigation of a complaint or matter it is seeking to refer to the director. It is often difficult to obtain information from big corporations which have the ability to conceal information. I do not mean to impute malice but such corporations have the resources to make it difficult to obtain information at the right time.

Of all the issues which arise under this legislation the most fundamental is the persistent discrimination against disabled persons in terms of access to buildings in public use. In the course of his long consultations with the vintners has the Minister raised the question of access for disabled persons to licensed premises? It seems that disabled persons and those with disabilities encounter difficulties in gaining access. I do not know if the Minister has to complete his consultations with the industry but this matter should be looked at. As I understand it, the legislation imposes no absolute obligation on the private sector, I assume for reasons of cost.

I commend the legislation and renew my good wishes to the Minister for the future.

Éamon Ó Cuív

In welcoming the Bill I extend my good wishes to the Minister. I am delighted that various matters, the source of much contention due mainly to misunderstandings, have been put to rest. It is important to outlaw in legislation as many forms of discrimination as possible. It is equally important to try to change people's mindsets.

The original proposals relating to public houses caused many misunderstandings. Happily this difficulty has been resolved. I am sure Members would not consider that anybody, irrespective of their ethnic origin, should be excluded from any place. However, most public houses bar certain people from their premises, usually locals, for justifiable reasons which, for legal reasons, may be difficult to explain. For that reason I am delighted the matter has been laid to rest. A customer who is willing to be well behaved has a right of entry to any public place and it is appropriate that right will now be enshrined in law. I also welcome the important provisions dealing with sexual harassment. It is appropriate that they will also be enshrined in law and that people will be protected from that type of unacceptable behaviour.

It will be difficult to outlaw insidious, indirect and various other forms of discrimination in legislation. I have noticed actions proposed regarding the housing of certain groups where at times some more favoured groups can be quite adept at using all types of laws to stymie provisions. Some of those who are most vociferous in condemning discrimination tend to be the quickest to use those devices to protect their interests when they are challenged. Communities which have been most accommodating in facilitating, say, the travelling community often make the complaint that they are not willing to carry the full burden. We must be fair in dealing with this matter. Communities have an equal responsibility to ensure that all sections and areas of society are willing to accommodate the provision of housing for travellers. That is not the position at present. People with the greatest material endowment tend to be the most ingenious in devising indirect ways to ensure travellers are housed in every-body's back yard except theirs. We must be honest about this. This major difficulty is one of a mindset with which we must deal.

Other forms of discrimination are not covered in the Bill. They include discrimination in regard to attaining professional qualifications. I raised this matter on the Adjournment recently. Professional bodies purposely put up barriers to prevent, say, foreign nationals gaining access to professions to protect their professions from outsiders.

Language barriers have been erected by the medical profession which insists that doctors from the Third World and other countries outside the EU must complete an English language test, although EU nationals are not compelled to do so. It is extraordinary that a doctor from the United States of America must complete an English language test but a doctor from Italy, Greece, Spain, Portugal, Germany or France need not. If language is a requirement for a job, surely English language tests should be completed by those who come from countries where English is not the lingua franca and the decision as to who should complete one should not be made on an arbitrary geographic basis. That type of discrimination is unacceptable and should be tackled.

There is also discrimination on age grounds and that must be tackled. In some cases people are not allowed to apply for jobs because they are over a certain age. That type of discrimination is becoming more apparent as people in late middle age become redundant, particularly in the public service. It is unacceptable that anybody, irrespective of the arguments put forward about pensions and so on, should be discriminated against on age grounds. If a person is of an age to do a job, it is not right that an upper or lower age limit should be set for access to that job, particularly if he or she has a remaining work life of up to 20 years. Those unnecessary rules and regulations are discriminatory and should be eliminated.

A discrimination that arises in my part of the world concerns a group that is often forgotten, the Irish speaking minority. It is amazing that the Government has not introduced any proposals to deal with discrimination on the grounds of language. I have said on other occasions that if we want to show our fellow people in the northern part of this country a society free from discrimination, we must first consider how we treat our minorities, travellers, Irish speakers or any other linguistic or ethnic minority. Despite the official love-in between the State and the Irish language over 70 years, there are still monoglots in my constituency to which people close their eyes and do not believe exist. We have monoglot older people aged from 70 to 90 in my constituency who have very limited or no knowledge of English. They are habitually sent to old people's homes where nobody is able to speak to them in basic Irish. Over the years we have highlighted cases where, for example, people in hospitals have looked for deoch uisce and none of the staff knew what they wanted. That is unsatisfactory and intolerable. As people become old and senile they tend to revert to the language of their home and youth, it is wrong that we pride ourselves on having a love for the Irish language and providing services. Even if we did not have a policy on the Irish language, surely we should provide a basic linguistic requirement for our citizens?

When Irish speaking parents have to seek help for their children who have language difficulties and require speech therapy, which arises irrespective of what language is spoken in the home, they find that none of those services is available through the Irish language. That is unsatisfactory. I am often amazed that people who come back to Connemara and mix with the ordinary people discover that they use Irish as their every day form of communication and that it is the language with which they feel at ease. It is discriminatory that we refuse to provide services in the language which those people feel most comfortable using, and that should be addressed. I hope the Minister for Equality and Law Reform as his last act before retiring will persuade his colleague, the Minister for Arts, Culture and the Gaeltacht, of the necessity to set down in statute people's basic fundamental right to speak their language. There is no point in having a constitutional provision, if we are not prepared to tackle the problems faced by our people. Lest people think this is not an issue I estimate there are probably 100,000 people who habitually use Irish in the Gaeltacht area in which I live. The vast majority of people from Furbo to Carna, along with a number in north Connemara if given a free choice of services through the medium of the Irish or English language will always choose the service provided through Irish. The older people tend to have very little English because of the school system that operated. Therefore, one finds people with very limited knowledge of spoken English who find it easier to read and write in Irish because they were never given much tuition in English. Of course, they learned to read Irish with the séimhiúis and now experience difficulty in reading the new Roman script. That is not a problem for the younger generation.

There is often a preference for using Irish as the language of communication. I can testify to this in the course of my constituency work, where some people communicate with me only in Irish. Anybody who ever sits in my clinic in Maam Cross on a Saturday will know that people from the English speaking area speak English and those from the Irish speaking areas speak Irish. There is an obligation on the State to ensure that good, efficient services through the medium of Irish are provided for this large number of people. In Connemara one may be talking about some 20,000 people, a significant minority who are entitled to their basic humanitarian and linguistic rights irrespective of any national feeling for the Irish language.

I do not intend going into the detailed provisions of this complex Bill but it is good that we have travelled this far. There has been a range of practices that most of us in rural areas have found very strange, particularly discrimination reminiscent of the 19th century against women in such places as golf clubs. Because of a shortage of numbers, in certain respects rural Ireland has been much freer of that type of discrimination. We must call on all members of our community to assemble a crowd for most activities and men and women mix actively and freely. We have not experienced the crazy demarcations between various groups. The concept of tennis or golf clubs not admitting women members is archaic and out of tune with the times in which we live.

What would have been perceived as a male bastion, the GAA, has recently been opened up, although men and women always were involved at local club level. The GAA has now opened up the playing area where women's Gaelic football is probably the fastest growing women's sport nationwide, being treated more and more equally vis-á-vis men's football, something we all welcome.

We were aghast a number of years ago when a young girl, I think in Bray County Wicklow, had to take a case to court to establish her right to play on a juvenile team. I am proud to relate that in my part of the world last year a young girl played and won a medal in the under 14s local football team. Playing along-side 14 young fellows, she was one of the star players. This has never posed a problem in rural areas. This is the way we should go. We must do away with demarcation and unnatural divisions between people remembering that, at the end of the day, we are all fellow human beings.

I want to revert to the huge issue of travellers in my constituency. I pay tribute to those members of the travelling community making so much effort among their people, working to combat anti-social behaviour. A huge number of travellers want to be fully integrated into society. The vast majority of them I know are willing to play their full part, on an equal basis, with everybody else in society. It is totally unfair to criticise or discriminate against any group because of the actions of a minority within it, which unfortunately is what has happened. We must cease to patronise travellers. In the final analysis, the solution to their problem must rest with them. They must decide whether they want to fully integrate in society or continue to live as a separate group within society. They have a right to choose. To suggest otherwise would be to patronise them and initiate a subtle form of discrimination; patronage of that type can be as debilitating and discriminatory as many other forms of discrimination. Given the wherewithal, the responsibility for their own development, accompanied by full support on an equal basis, they have a huge contribution to make to enriching our society and playing a full part in it.

We must work with all groups, listen to what they have to say, stop prescribing answers and, instead, ascertain what answers they have to their own problems. We must also work with them to improve their quality of life and differentiate between ethnic differences and changes in social habits. As I have already pointed out, the people of Inishmaan and the Aran Islands are no less Irish-speaking now, because they live in modern houses, have water, sanitation, electricity, television, telephones and all modern conveniences, than they were some 30 or 40 years ago when none of those facilities existed. They are no less an identifiable group with a culture of their own because they have, quite rightly, adapted to all the changes in society over the past 30 years.

Similarly, in the case of the travelling community, we must differentiate between real culture, values and differences between them and the settled community and changes which have taken place in the physical world in which they live. We hope they will adapt to changes needed whether it be in settled housing, in new ways of dealing with the industries or businesses in which they are involved, so that they can become full partners in society.

Ba mhaith liom cuidiú leis na focla deá-mhéine ar son an Aire. Níor réitigh mé le gach rud a rinne sé an fhaid is a bhí sé ina Aire. Glacaim leis, áfach, go raibh sé lán-dáiríre san obair a bhí ar bun aige, go raibh a chroí san áit cheart agus go bhfuil an t-uafás déanta aige a bheidh mar mhaithe le leas an phobail. Guím fad saoil aige agus go mairidh sé an céad.

Minister for Equality and Law Reform (Mr. Taylor)

I sincerely thank all Members for their very gracious remarks to me on my forthcoming retirement from public political life. I appreciate those comments by Members from all sides of the House; they certainly are heart-warming. I have enjoyed my period as a Minister. I hope I have made a contribution, I certainly did my best toward that end. I will still be around in politics, not in a public way, but will continue to assist in every way that I possibly can.

I also thank Deputies for their wide-ranging and positive comments on the Bill, which is a landmark in the fight for greater equality in Irish society. Equality is a broad concept and Deputies have touched on various aspects of it. The Bill specifies eight or nine categories but I do not suggest that is a comprehensive list — other categories can and should be tackled and I have no doubt they will be in the fullness of time. Deputy Ó Cuív highlighted the question of language, a matter on which I would be supportive, and there are many others.

The Bill covers much ground and a broad range of areas outside the context of employment. Together with the Employment Equality Bill, these measures will give Ireland a modern, comprehensive anti-discrimination code which will be among the best in the world. The country will be proud of it. This Bill has the potential to affect the lives of many people. It is not concerned with arcane or technical issues — it applies to everyday matters such as entertainment and leisure, sporting facilities, access to credit and obtaining accommodation. It is based on the simple principle that no one should be denied access to such facilities or amenities simply because of a prejudice or a stereotype.

Deputy McGahon asked Deputy McDaid whether, in his practice as a doctor, he should not have a right to refuse someone access to his surgery for a variety of reasons. Deputy McGahon is right — people have the right to refuse a person, but "variety of reasons" is the operative phrase. This Bill provides that one does not have the right to refuse someone for the sole reason that the colour of his or her skin is black, because the person is a woman or because of age, disability, membership of the travelling community or sexual orientation.

A number of Deputies referred to apparent discrepancies between this Bill and the Employment Equality Bill. As the two Bills will operate in different spheres it is not surprising that there are such differences. A significant part of the Employment Equality Bill has been influenced by the need to transpose EU gender equality directives, case law and related treaty obligations into Irish legislation. No similar constraints apply to the Equal Status Bill. There are also differences of presentation as the two Bills represent distinct drafting styles. I will, however, give careful consideration to the views expressed and will further examine the Bill in the light of these views.

Deputies mentioned the timescale for the making of regulations on transport accessibility, which we all agree to be extremely important. Such regulations will have to be carefully drafted, having regard to technical and EU considerations and with a view to meeting the needs of people with disabilities in the most cost-effective way. I cannot say at this stage when exactly such regulations might be put into effect but an examination of that question will be made as soon as the Bill has passed into law.

Deputy McDaid referred to the use of language in legislation in a way which discriminates against women. I was responsible for the Interpretation (Amendment) Act, 1993, which corrected the inequality which had existed in this area. In response to his slightly critical comment about the use of verbiage in a Labour Party Bill, I remind him that his party's record in the equality area has not been too happy on a number of occasions. I have referred before to a Fianna Fáil Minister for Justice who, regrettably, appointed an all-male Legal Aid Board, which I rectified at the earliest possible opportunity.

Deputy Keogh said the Bill had the signs of being rushed so that it could be enacted before the general election. She is very much at odds with bodies representative of the categories which will be protected by this Bill, who have been concerned at the delay — unavoidable, as far as I am concerned — in proceeding with the Bill. I assure her that those groups want this Bill enacted as soon as possible so that it is not subject to further uncertainty. It was considered over a long period and a great deal of thought went into its provisions. I am pleased at the extent of support for the Bill from all sides of the House and I know I will receive co-operation from Deputy McDaid and Deputy Keogh in securing its passage into law at the earliest possible time.

Deputy Keogh raised the question of sexual orientation. I can confirm that I will move an amendment to define this on Committee Stage. She described section 5 (3) (d) as "mind-boggling". This paragraph deals with services of an aesthetic, cosmetic or similar nature and is intended to cover services of establishments such as hairdressing and beauty salons which traditionally have been offered to persons of one gender only at particular establishments. I do not propose to make this unlawful and I wonder whether Deputy Keogh would. She also criticised subsection 5(3)(k) which provides that, in a dramatic performance or entertainment, certain distinctions are acceptable. This is totally reasonable. The point about exceptions like these is that the Bill generally prohibits less favourable treatment, therefore we need to have exceptions for those cases of different treatment which are not regarded as unacceptable, otherwise they too would be unlawful.

As to the limitation period, the Deputy drew attention to section 21 (2) (a) which provides that the complainant should notify the respondent of the alleged prohibited conduct within two months of the incident. She suggested there was no limitation for the referral of complaints to the director of equality investigations. In fact, section 21(1) makes section 41 of the Employment Equality Bill applicable to equal status cases and this section provides for a six-month limitation period along with discretion to extend it.

Regarding exemptions for insurance and genetic testing, I will consider the points made by Deputies about the exception in section 5(3)(e). However, apart from health insurance, the insurance and assurance business does not function on the basis of community rating. I take the point that life expectancy varies far more within the genders for non-gender reasons than it does between men and women and there is a difficulty of principle in attributing group characteristics to the individual.

Exclusions on the lines of section 5(3)(e) exist in other countries, for example in Britain with regard to sex. The insurance company must satisfy the Director of Equality Investigations on the nature of the data it is using to justify different treatment. It will not be a case of people proving anything by the selective use of statistics. If the insurance company wishes to avail of that subsection it must satisfy the Director of Equality Investigations that the statistical and actuarial data on which it proposes to rely is acceptable. This would have to be established to the satisfaction of the independent officer hearing the application. It would not be a matter of the company's say so. The officer and the complainant and its representative would have the opportunity to probe reliability and ascertain if the statistical material tendered was appropriate and valid and what force it should be given.

Genetic testing as a predictor of certain illnesses would have to be considered in this light also. While I will consider the Deputy's points I do not believe it will be possible for me to significantly amend this provision.

Deputy Coughlan referred to section 37(1) of the Employment Equality Bill and how it related to this Bill. The section deals with the employment of teachers and so on, whereas section 7 of this Bill deals with access to schools and their facilities.

I dealt in great detail with the definition of "disability" under the Employment Equality Bill. The definition here is, in essence, the same as in that Bill. The intention is to give the widest possible protection to the widest possible range of people with disabilities. A disability which may exist in the future or which is imputed to a person is covered. In this respect I refer Deputy Keogh to section 3 of the Bill.

A number of Deputies rightly referred to the problems which people with disability have in gaining access to buildings. I indicated that I would give consideration to the inclusion of a reasonable accommodation provision in the Bill. The inclusion of such a provision will go a long way towards meeting Deputies' concerns on this issue.

Important issues such as the right to refuse admission, the position on registering clubs, the equality authority, etc., were also raised by a number of Deputies. I look forward to dealing with these in detail on Committee Stage. I thank Deputies for their constructive, informed and supportive contributions.

Question put and agreed to.

Dáil Éireann díospóireacht - Thursday, 27 Feb 1997