I move: "That the Bill be now read a Second Time."
The Equal Status Bill will, for the first time, give protection against discrimination outside the context of employment. It deals with discrimination on the grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race, colour, nationality, national or ethnic origin and membership of the travelling community, and gives those who are discriminated against a statutory means of redress. It has a comprehensive scope covering provision of personal property and services, disposal of land and accommodation, education, partnerships and registered clubs.
I am pleased and honoured to introduce this important measure. As Deputies may recall, in 1992 I had the privilege of moving the Second Stage of my party's Equal Status Bill. Today's Bill parallels and complements the Employment Equality Bill which prohibits discrimination on similar grounds in the workplace. This is a far-reaching and significant Bill which has the potential to improve the lives of many people.
This Bill is about equality and rights. It is based on the principle that everyone has an equal right to participate in our society. Nobody should be denied access to services, facilities or amenities simply because of their skin colour, disability or membership of the travelling community. Everyone, male or female, white or black, young or old, with or without a disability, should be seen as being of equal worth and entitlement. Each person should be treated on his or her own merits and not on the basis of a prejudice or stereotype. We are all entitled not to be the victims of unjust discrimination.
The primary reason for introducing this Bill is to provide protection against discrimination for those who have up to now had no statutory means of redress. We cannot afford to be complacent about the degree of equality and tolerance in our community. It cannot be denied that, for too many people, discrimination has been, and continues to be, an unpalatable reality. Fr. Micheál MacGréil's recent book Prejudice in Ireland Revisited records a growing level of social prejudice against travellers, together with marked prejudice against and intolerance of certain religious groups, homosexuals and persons with certain disabilities, among others. Such negative and hostile attitudes can and do manifest themselves in various forms of discrimination. I have received numerous letters describing the stress, embarrassment, frustration and sense of injustice experienced by victims of discrimination. There is currently no legal redress for the woman who cannot become a member of a local golf club simply because she is a woman, the person who is refused entry to a pub because he or she uses a wheelchair or the black person who is not given a flat simply because of his or her skin colour. Such people want more than sympathy; they want the protection of the law.
In the absence of such legislation, we are unable to ratify the UN Convention on the Elimination of All Forms of Racial Discrimination. This convention has now been ratified by 155 countries, including all of our EU partners. The enactment of the Equal Status Bill is also necessary to enable us lift a reservation on the UN Convention on the Elimination of All Forms of Discrimination against Women. Legislation on the lines of this Bill is, in various forms, commonplace elsewhere in the EU and in many other democracies.
There is now widespread acceptance of the principle of equal status legislation. The enactment of an Equal Status Bill has been a fundamental element of the programmes of successive Governments. It has been endorsed by the social partners in both the Programme for Competitiveness and Work and Partnership 2000. Recommendations relating to anti-discrimination legislation were contained in the Reports of the Second Commission on the Status of Women, the Task Force on the Travelling Community and the Commission on the Status of People with Disabilities.
As I indicated, while anti-discrimination legislation of this type is new to Ireland, it has existed in many other countries for years. In preparing this Bill, I and my officials have drawn on the provisions of other countries, particularly the common law jurisdictions such as the UK, Northern Ireland, Canada, Australia and New Zealand. Examination and comparison of the legislation of other countries and detailed discussion with those involved in the implementation of such legislation has been an important aspect of the Bill's development.
It is interesting to note that when similar legislation was introduced in other countries there were fears of damage to business or fraudulent claims, similar to those which have been expressed about the present Bill. Such fears were not realised, and anti-discrimination legislation works well and is accepted as a normal feature of life in other jurisdictions.
The preparation of the Bill has also involved wide-ranging consultations with interested parties. From the outset I have taken the view that the views and proposals of all interested parties should be sought. In 1993 I circulated a consultative document to over 80 persons and groups. In the period since then I have had discussions with, and received submissions from, numerous interest groups. Some groups have had discussions on a number of occasions with officials of my Department. The groups which have made representations about this legislation have been extremely diverse. I have heard the views of those representative of vintners, traveller interests, retailers, the insurance industry, gays and lesbians, people with disabilities, racial minorities, property owners and those pressing for greater equality for women in golf, among many others. All submissions received have been carefully examined in the preparation of the legislation. I am also prepared to consider amendments put forward by Deputies which might be an improvement on what is currently in the Bill.
Before I go into the provisions of the Bill, I would like to make some general points about what it does and does not do. There has been much apprehension and considerable misunderstanding about the effect of the Bill on publicans and other commercial interests. I want to make it clear that the Bill will outlaw discrimination on specified grounds only. It will not require traders to give open access to their premises. It will not prevent business people, in the ordinary day to day running of their business, from refusing service to someone because of misbehaviour, security concerns, inappropriate dress and so on. It will not give any protection whatsoever to troublemakers or anti-social elements.
In response to the concerns expressed by publicans and other traders, I invited proposals for safeguards to be included in the Bill which would meet such concerns. A number of such proposals were made and, having carefully considered them, I have included important safeguards in the Bill which will meet these concerns without in any way diluting the Bill's basic objectives. While I will cover these at a later stage, I would draw Deputies' attention in particular to sections 16 and 55 of the Bill.
Part I is essentially concerned with defining terms used in the Bill. Deputies may wish to note the broad definition of disability in section 2. There is also a comprehensive definition of "services", which includes services and facilities of any nature, including access to and use of any place, banking or insurance services, facilities for entertainment, recreation or refreshment, cultural activities, transport or travel and professional or trade services. It does not include services provided under a contract of service, services which are not generally available to the public or services covered by the Employment Equality Bill.
The key element of this part is section 3, which sets out what is meant by discrimination. Discrimination occurs where, on discriminatory grounds that existed, exist, are believed to exist or are considered likely to come into existence, a person is treated less favourably than another person is, has been, or would be treated. It also occurs where an organisation — a gay and lesbian society, for example — is treated less favourably because of the nature of its membership, or where a person is treated less favourably because of his or her association with a person or organisation to whom the discriminatory grounds apply. A further form of discrimination occurs where a requirement to comply with a condition has a disproportionately adverse effect on a particular category of person and this requirement cannot be justified as being reasonable in all the circumstances of the case. This form of discrimination is commonly known as "indirect discrimination" although the term does not appear in the current Bill.
The discriminatory grounds are gender, marital status, family status, sexual orientation, religion, age, disability, race — covering race, colour, nationality or national or ethnic origin — and membership of the travelling community. Victimisation of people because of their involvement in proceedings under this Bill is also treated as a discriminatory ground. I cannot emphasise too strongly that the Bill deals with discrimination on these grounds alone and does not affect differences of treatment based on other grounds.
It is recognised that, in some limited circumstances, it would be impractical or extremely difficult to meet the needs of persons with a disability. For this reason the concept of "undue difficulty" is introduced in section 4. Members will note that, in general, the Bill exempts different treatment of a person with a disability where the needs of such a person could not be met without undue difficulty. Whether undue difficulty arises will depend on a number of factors, including whether catering for a person with a disability would entail difficulty, disruption or cost which is excessive by reference to the benefits accruing to all concerned. As Deputies will be aware, I recently put forward an amendment to the Employment Equality Bill to provide for the concept of reasonable accommodation and I will consider making a similar amendment to this Bill on Committee Stage.
Part II deals with discrimination in particular areas. Discrimination in the provision of personal property and services is prohibited under section 5. It will be noted that discrimination in this area includes the refusal of access to a person with a disability who has the accompanying assistance of a wheelchair, guide-dog or person. There are a number of exceptions for difference of treatment in certain circumstances in particular areas, such as insurance, sporting events and entertainment. Among these exclusions are one-time dispositions other than in the course of a business or trade — for example, a private sale of a car. Reasonable differences of treatment in the area of insurance and finance based on actuarial or similar data are exempt. Examples of this would be the different treatment of persons under 25 in relation to motor insurance and the different treatment of persons on age grounds in relation to life assurance. Differences of treatment of persons on the grounds of gender, age, disability, nationality or national origin are permissible in respect of sporting facilities and events. Thus, for example, the Bill recognises and allows for different events such as women's or men's football teams, under-21 football teams or games for people with a disability. As these examples show, the various exceptions reflect what most people would regard as acceptable and necessary differences of treatment. Different treatment of a person with a disability is not regarded as discrimination where undue difficulty arises, or where the disability is such that it reasonably jeopardises that person's ability to comply with relevant conditions.
Discrimination in land dispositions and provision of accommodation is also prohibited, subject again to a number of exclusions. Among the exemptions are disposals by will or gift, small premises where the accommodation provider continues to live on the premises, accomodation intended for use by persons of one gender, refuges and nursing homes, and different treatment of persons with a disability where undue difficulty arises.
Educational establishments may not discriminate against students in matters such as admission or access to courses. A number of exemptions are provided for, the main one being to allow for single gender schools.
Section 8 prohibits discrimination of firms of partners, etc., in relation to the admission of partners or members, the status of partners or members and expulsion or other sanctions. It will be permissible to refuse admission as a partner or member to a person with a disability where undue difficulty arises. Also exempted is the imposition of reasonable terms or conditions on persons whose age or disability restricts their capacity to function as a partner or member or necessitates special arrangements. Deputies may wish to note that the section on partnerships has been included — in so far as gender and marital status is concerned — on foot of an EU Directive, the full title of which I will not recite, but which is commonly referred to as the Directive on Self-Employed Activity 86/613/EEC. Similar provisions are to be found in anti-discrimination legislation in other jurisdictions.
The approach taken in regard to discriminating clubs differs from that taken in other areas. The unjustified exclusion of women from equal participation in golf clubs and similar sporting or recreational clubs was highlighted by the Second Commission on the Status of Women, which recommended legislative measures to deal with this. I have no doubt that this is an issue on which many women, and indeed men, feel very strongly. While the number of discriminating clubs may be decreasing, unequal treatment continues to exist and I do not believe equality in this area will be achieved by education and persuasion alone. The Bill does not prohibit discrimination by clubs against members or potential members. Rather it seeks to discourage such discrimination by allowing a complainant to apply for a determination from the District Court that a registered club — one which can sell intoxicating liquor — is a discriminating club. If the club is determined by the District Court to be a discriminating club, it would not be entitled to renew its certificate of registration, and would not be entitled to public funds or to the use of publicly owned recreational facilities until it had rectified the situation. However, I will provide a six months' lead-in time for this section, I hope clubs will put their houses in order voluntarily and that this section will not have to be used.
A number of exemptions are provided in section 10 in relation to registered clubs. Clubs are not regarded as discriminating merely because they cater for persons of a particular religion, age, nationality or ethnic origin. It is also permissible for a club to provide separate, but equivalent, facilities for particular age groups or different sexes in certain circumstances. Relevant and reasonably justifiable differences of treatment in relation to sporting facilities or events based on gender, age, disability, nationality or national origin are permissible. Certain positive action measures designed to promote greater equality are also exempted. In section 12, sexual harassment or harassment based on any of the discriminatory grounds is prohibited in the areas covered by the Bill. A person in authority in an educational establishment, an organisation or club or a partnership, a person providing services or accommodation or disposing of personal property or land may not sexually harass or harass a student, member, customer etc. Furthermore, a person who is responsible for the operation of an education establishment or a place at which goods, services or accommodation facilities are offered to the public may not allow a student, customer etc., to suffer sexual harassment or harassment there. I intend to give further consideration to the provisions on sexual harassment to provide for consistency with the corresponding provisions in the Employment Equality Bill.
Sexual harassment is defined as an unwelcome act of physical intimacy, an unwelcome request for sexual favours or an unwelcome act or conduct with sexual connotations. Harassment is defined as an offensive, humiliating or intimidating act or conduct based on any of the discriminatory grounds. Section 13 prohibits any form of advertising which indicates an intention to discriminate, to sexually harass or to harass. Deputies will note the comprehensive definition of "advertisement" which includes every form of advertisement, whether in a newspaper or any other publication, on television or radio or by display of a notice or other means.
I have already mentioned some of the specific exemptions which apply to particular areas. There are also some exemptions of general application in sections 15 and 17. For example, actions which are required to be done by or under statute, court order or EU law are exempt, as are bona fide positive action measures. A reasonable preferntial charge for persons together with their children, married couples, persons in a specific age group or persons with a disability is permissible. Treating a person who has a disability differently to prevent that person causing harm is acceptable, as is differential treatment in the exercise of clinical judgment.
Section 16 contains some important safeguards. The safeguard in subsection (1) makes it clear that a service provider or similar person is not required to serve a customer if the service provider has reasonable grounds other than discriminatory grounds for the belief that provision of the service would create a substantial risk of criminal or disorderly conduct or behaviour or cause damage to property. Subsection (2) also provides that action taken in good faith for the sole purpose of complying with the Licensing Acts is not discrimination. These safeguards are intended to meet the legitimate concerns of vintners and other traders, without interfering with the Bill's central thrust of outlawing discrimination.
I regard sections 18 to 20 as a particularly important aspect of the Bill. They make special provisions for the needs of persons with a disability in the area of transport accessibility and convenience in using public streets and pavements. They provide for regulations requiring that buses and trains, and bus and train stations, be readily accessible to persons with disabilities. In addition, road authorities must provide kerb ramps or similar features when constructing or altering public paths. The Report of the Commission on the Status of People with Disabilities laid particular emphasis on the rights of persons with a disability to the same freedom that enables able-bodied people to get out and about. The inclusion of these provisions recognises the importance of transport and ease of mobility in the lives of people with disabilities.
I will now turn to the enforcement provisions under Part III. Claims of discrimination or harassment may be referred to the Director of Equality Investigations, an independent official operating under the Department of Equality and Law Reform. The Director of Equality Investigations, assisted by his or her staff, will have the power to investigate, mediate or make decisions on such claims. This office will provide a simple, inexpensive and speedy means of redress for victims of discrimination. I have already said the decision on whether a club is a discriminating club is a matter for the District Court and I would emphasise that the Director of Equality Investigations will have no function in the matter of discriminating clubs.
Section 21 provides that claims referred to the Director of Equality Investigations will, in general, be treated as if they were claims of discrimination under Part V of the Employment Equality Bill. Part V of that Bill deals with enforcement, including the referral of claims to the Director of Equality Investigations, procedures to be followed in investigating claims, mediation, decisions of the director and enforcement of decisions. It provides that the Director of Equality Investigations may award compensation or order that the respondent take a specified course of action.
It should be noted, however, that unlike employment cases, the maximum amount of compensation that may be awarded in equal status cases will be £5,000, the limit for a civil case in contract in the District Court. A further difference between the two Bills is that a claim of discrimination under this Bill must be preceded by an initial notification to the respondent within two months of the alleged act of discrimination. The Director of Equality Investigations may dismiss a complaint if the complainant does not have sufficient interest in the claim or the claim has been made in bad faith, or is frivolous, vexatious or trivial. A decision of the Director of Equality Investigations may be appealed to the Circuit Court within 42 days.
The Equality Authority will have power under section 22 to refer certain cases to the director. Such cases could involve discrimination against a group of persons or a situation where the person concerned is not in a position to bring a case. The Authority may also refer cases involving prohibited advertising, procurement of discrimination or failure to provide kerb ramps or to comply with regulations on transport accessibility. It will also have the power to seek injunctions.
Part IV provides for a restructured Equality Authority, with an extended remit covering both employment and non-employment areas. The Equality Authority, currently known as the Employment Equality Agency but renamed under the Employment Equality Bill, will have a new composition to reflect its altered mandate. It will have 12 members, including a chairperson, of which at least five will be women and atleast five men. Of the ordinary members, two will be nominated by employer organisations and two by employee organisations. The remainder of the ordinary members, who I will appoint, will be persons with knowledge or experience of matters relevant to the functions of the Authority.
The general functions of the Authority, as outlined in section 35, include: working towards the elimination of discrimination; promotion of equality of opportunity in matters relating to this Bill or the Employment Equality Bill; and review, and proposals for amendment, of the Equal Status Bill, the Employment Equality Bill and the equal treatment aspects of the Pensions Act, 1990. The Authority is also given specific functions under various provisions of both Bills.
The Authority is given a number of instruments with which to pursue its functions. It may undertake research and information activities and charge for these. It may also conduct investigations. If, arising from an investigation, the Authority finds a person is discriminating or is otherwise in breach of either the Employment Equality Bill or the Equal Status Bill, it may serve a non-discrimination notice requiring the person to take remedial action. The High Court or the Circuit Court may, on the motion of the Authority, grant an injunction for failure to comply with a non-discrimination notice.
Another important feature of the Authority's remit is that it may give assistance in cases under both Bills where an important matter of principle is involved or where it would not be reasonable to expect the person concerned to present the case adequately without assistance. It should be noted that assistance may be given by the Authority not only in relation to references to the Director of Equality Investigations, the Labour Court or the District Court, as the case may be, but in relation to any proceedings arising from such references. Also noteworthy is the Authority's power to prepare codes of practice aimed at the elimination of discrimination or the promotion of equality. Following my approval, such codes are admissible as evidence in a court.
Part V contains various general provisions. I draw attention to section 55, which provides that parties to an investigation by the Director of Equality Investigations, witnesses before the Director or the Authority, or persons required to supply information to the director or Authority will have the same immunities and privileges as a witness before the High Court. This section will allay concerns that a person involved in proceedings under this legislation might find themselves sued for defamation. Section 57 is also important as it will establish an amalgamated redress mechanism for the Employment Equality Bill and this Bill. It provides for the establishment of the office of Director of Equality Investigations under the aegis of the Department of Equality and Law Reform.
Today's Bill is part of a wide-ranging programme of measures aimed at the promotion of greater equality and the full participation of all groups in economic, social and cultural life. It is a fundamental element of my Department's programme, and together with the companion Employment Equality Bill will give Ireland a comprehensive anti-discrimination code. It is a measure which has been a long time in gestation. This Bill breaks new ground and covers a variety of categories and range of areas. Its preparation has necessarily been a complex and difficult task.
The equal status legislation will have a profound impact on society. I would hope not to see a multitude of cases under this legislation, but hope the existence of such legislation will inhibit would-be discriminators and reduce the incidence of discrimination. While I recognise that legislation alone cannot change attitudes, I hope that in time discrimination against persons simply because of factors such as their race, sexual orientation, disability or gender would become socially, as well as legally, unacceptable. The activities of the Equality Authority in its expanded role will contribute also to this outcome. The Equal Status Bill is a significant step towards a society of greater equality, mutual respect and tolerance. I look forward to an interesting and constructive debate on this important legislation.