I move: "That the Bill be now read a Second Time."
The Equal Status Bill will, for the first time, provide protection against discrimination outside the field of employment. It deals with discrimination on the grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the traveller community and gives those who are discriminated against a statutory means of redress. It has a broad ranging scope covering provision of goods and services, disposal of premises and accommodation, education and registered clubs. This measure complements the Employment Equality Act, 1998, which prohibits discrimination on similar grounds in the workplace.
Deputies will be aware of the fate of the Equal Status Bill, 1997. The Bill passed all Stages in both Houses of the Oireachtas. It was then referred to the Supreme Court by the President under Article 26 of the Constitution. The Employment Equality Bill, 1996, had already been referred to the Supreme Court and on 15 May 1997 the court found that Bill to be unconstitutional in three respects. As two technical provisions found unconstitutional in the Employment Equality Bill were also contained in the Equal Status Bill, it then became inevitable that the Supreme Court would also find the Equal Status Bill unconstitutional. The court gave its judgment on the Equal Status Bill on 19 June 1997. As expected, it found those two aspects of the Bill – vicarious liability of employers for criminal acts of employees and use of a certificate in a criminal trial – to be repugnant to the Constitution. The court declined to examine the Bill further.
Preparation of the revised Equal Status Bill was necessarily a more complicated matter than was the development of the revised employment equality legislation. The Employment Equality Bill was examined thoroughly by the Supreme Court, particularly as regards a range of key and controversial provisions, and was found constitutionally sound except for three aspects. It was, therefore, possible to bring forward a revised Employment Equality Bill in the latter part of 1997. That Bill was enacted in June 1998.
In the case of the Equal Status Bill, however, the court did not examine the Bill as a whole and did not give its imprimatur to any aspect of the Bill. It was, therefore, necessary to obtain extensive legal advice before developing the revised Equal Status Bill. As this is a wide-ranging and complex measure, it was necessary to proceed thoroughly and carefully to ensure that the revised measure would pass the constitutional test. It must be emphasised that there has been no undue delay in bringing forward the revised legislation.
There is now widespread acceptance of the principle of equal status legislation. Equal status legislation is among the commitments in the Good Friday Agreement. The enactment of an Equal Status Bill has been a fundamental element of the programmes of successive Governments and it was endorsed by the social partners in the Programme for Competitiveness and Work and in Partnership 2000. 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 contained recommendations relating to anti-discrimination legislation.
The enactment of equal status legislation is necessary to enable Ireland to ratify the UN convention on the elimination of all forms of racial discrimination. This convention has been ratified by 155 countries, including all other EU member states. The enactment of the Equal Status Bill is also necessary to enable us to lift a reservation on the UN convention on the elimination of all forms of discrimination against women.
At EU level, the fight against discrimination is also set to move beyond the traditional field of gender discrimination in the workplace. The Amsterdam Treaty gives the Community new powers to act on discrimination. Article 13 of the new treaty gives the Community a clear basis for acting to combat discrimination, both in employment and in non-workplace areas, on grounds of sex, race or ethnic origin, religion, disability, age and sexual orientation.
The essential thrust of the present Bill is the same as that of the 1997 Bill. Changes have been made to rectify faults identified by the Supreme Court consequential on the court's finding on the Employment Equality Bill, in response to faults identified in legal advice and to correct technical points or remove anomalies. I will now set out the main changes.
The 1997 Bill required service providers to make reasonable accommodation, including the provision of special treatment or facilities, for the needs of people with disabilities, unless such reasonable accommodation would give rise to undue difficulty. The Supreme Court found the comparable requirement in the Employment Equality Bill, 1996, to be unconstitutional. The implications of this judgment were carefully examined before the revised Equal Status Bill was developed. The redrafted version follows the approach taken in the Employment Equality Act 1998, that is, the obligation to make reasonable accommodation is subject to a "nominal cost" threshold. This approach has been taken following extensive legal advice on the matter.
As required by the Supreme Court judgment, vicarious liability of employers for acts of employees now applies in respect of civil proceedings only and the subsection which allowed for the use of a certificate as evidence of an offence has been deleted.
The 1997 Bill provided for the establishment of the Equality Authority with a remit in both employment equality and equal status matters. As the Employment Equality Act, 1998, now includes provision for the establishment of the authority and for its functions in the employment equality area, the present Bill simply extends the functions of the authority to equal status matters.
The drafting of section 3, which defines discrimination, has been substantially reworded in respect response to legal advice. There are a number of changes in the education area, including the deletion of the provision which allowed schools catering for persons of a particular nationality or national origin to restrict access in certain circumstances. This provision presented constitutional difficulties and, on further consideration, was deemed to be unnecessary.
Provisions dealing with discrimination by firms, including partnerships, against members-partners have been deleted. These provisions were anomalousvis-à-vis the provisions of the Employment Equality Act, 1998, and were not required by the EU Directive on Self-Employed Activity.
Registered clubs, which are found to be discriminatory, will forfeit their certificate of registration but will not be denied public funds or the use of publicly owned recreational facilities. The changes follow legal advice on the matter. Deputies will, doubtless, observe other changes in the Bill, but I do not propose to go into detail in relation to these at this point.
In the past there were some misconceptions about the effect of the Bill on commercial interests. This Bill will prohibit discrimination on specified grounds only. It will not require traders to admit all-comers nor will it prevent business people from refusing service to someone because of bad behaviour or lack of hygiene. It will not give any protection whatsoever to trouble-makers or anti-social elements. I retained in this Bill the various "safeguard" measures which were included in the 1997 Bill to meet the legitimate concerns of vintners and other traders. These safeguards do not interfere with the Bill's central thrust of outlawing discrimination.
I will now deal with the specific provisions of the Bill. It is divided into five parts. Part I contains definitions and sets out what is meant by discrimination. Part II deals with discrimination in particular areas. Part III provides means of redress and compensation for persons who may have suffered discrimination. Part IV together with the Schedule extends the functions of the Equality Authority to equal status matters. Part V contains general and technical provisions.
Part I defines 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, culture activities, transport or travel and professional or trade services. It does not include services provided under a contract of service, services that are not generally available to the public or services covered by the Employment Equality Act.
Section 3 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 a person is treated less favourably because of his or her association with a person to whom the discriminatory grounds apply. A further form of discrimination occurs where a requirement to comply with a conditions has a disproportionately adverse effect on a particular category of persons 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 present Bill.
The discriminatory grounds are gender, marital status, family status, sexual orientation, religion, age, disability, race, colour, nationality or national or ethnic origin, and membership of the traveller community. Victimisation of a person because of his or her involvement in proceedings under this Bill is also treated as a discriminatory ground.
Section 4 contains particular provisions related to persons with disabilities. I have already referred to the Supreme Court's finding that the "reasonable accommodation" provisions of the Employment Equality Bill were unconstitutional and the consequent insertion in the Employment Equality Act of a "nominal cost" threshold for reasonable accommodation. This approach has been followed in the present Bill.
Part II deals with discrimination in particular areas. Section 5 prohibits discrimination in the provision of goods and services. There are a number of exceptions for differences of treatment in certain circumstances in particular areas, such as insurance, sporting events and entertainment. Among these exclusions are reasonable differences of treatment in the area of insurance and finance, which are based on actuarial or similar data. Examples of this would be the different treatment of persons under 25 in motor insurance and the different treatment of persons on age grounds in life assurance. Differences of treatment of persons on the grounds of gender, age, disability, nationality or national origin are permissible in 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 – I assume that includes Westmeath – 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.
Discrimination in disposing of premises 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, accommodation intended for use by persons of one gender and refuges and nursing homes.
Educational establishments may not discriminate against students in matters such as admission or access to courses. There are a number of exemptions in the education area. For example, single gender schools are permissible. Denominational schools may refuse to admit non-co-religionists in certain circumstances. Education establishments may make reasonably necessary distinctions based on gender, age or disability in relation to sport. Differences of treatment are also warranted if the admission of a student with a disability would make impossible, or be seriously detrimental, to the education of other students.
Sections 8 to 10 deal with discrimination by registered clubs. The approach taken in relation to such clubs differs from that taken in other areas. The Bill does not prohibit discrimination by clubs against members or potential members. Instead it seeks to discourage such discrimination by allowing a complainant to apply for a determination from the District Court that a registered club, that is, 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 will not be entitled to renew its certificate of registration until it has rectified the situation.
A number of exemptions are provided in section 10 in relation to registered clubs. Clubs are not regarded as discriminating just because they cater for persons of a particular religion, age, nationality or ethnic origin. A club may 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, national or national origin are permissible. Cer tain positive action measures designed to promote greater equality are also exempted.
In section 11, 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, a person providing services or accommodation or disposing of goods or premises may not sexually harass or harass a student or customer, etc. Furthermore, a person who is responsible for the operation of an educational 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. It will, however, be a defence for the person responsible to show that he or she took reasonably practicable steps to prevent such harassment. Section 12 prohibits any form of advertising which indicates an intention to discriminate, to sexually harass or to harass.
I have already referred to some of the specific exemptions which apply to particular areas. There are also some general exemptions in sections 14 and 16. For example, actions which are required to be done by or under statute, court order, EU law or international obligations are exempt, as are bona fide positive action measures. A reasonable preferential charge for persons together with their children, married couples, persons in a specific age group or persons with a disability is permissible. Differential treatment is acceptable where it arises in the exercise of clinical judgment or because the person concerned is incapable of entering an enforceable contract or of giving informed consent.
Section 15 deals with safeguards. It 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. It also provides that action taken in good faith for the sole purpose of complying with the Licensing Acts is not discrimination.
Sections 17 to 19 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.
I will now turn to the enforcement provisions under Part III of the Bill. Claims of discrimination or harassment may be referred to the Director of Equality Investigations, an independent official whose establishment is provided for in the Employment Equality Act, 1998. This office will provide a simple, inexpensive and speedy means of redress for victims of discrimination. As 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.
The procedures outlined in sections 21 to 39, which deal with cases referred to the director, correspond, subject to certain modifications and exceptions, to those applicable to cases referred to the director under the Employment Equality Act, 1998. I will mention some aspects of the redress procedures. A claim referred to the director under this Bill must be preceded by an initial notification to the respondent within two months of the alleged discrimination, or of its most recent occurrence. This requirement is intended to put the respondent on notice and give him or her the opportunity to take remedial action.
There is a six month limit for referral of claims to the director, which may be extended in exceptional circumstances to 12 months. The director may at any time dismiss a claim in which the complainant has insufficient interest or which is made in bad faith or is trivial, vexatious or frivolous. The director may investigate a claim or, alternatively, seek to resolve the matter by mediation. Having investigated a claim, the director may award compensation and-or require that a particular course of action be taken. Compensation is limited to the maximum that could be awarded in a civil case in contract, currently £5,000.
The director will have strong investigative powers to enter premises, to obtain relevant information, through interview or otherwise, and to ensure the imposition of sanctions in the event of failure or refusal by persons to co-operate with an investigation. Decisions of the director may be appealed to the Circuit Court within 42 days. The Equality Authority will have the power under section 24 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 themselves. The authority may also refer cases involving prohibited advertising, failure to provide kerb ramps and non-compliance with regulations on transport accessibility. It will also have the power to seek injunctions.
Part IV, together with the Schedule, extends the functions of the Equality Authority, as set out in the Employment Equality Act, 1998, to include equal status matters. Part V deals with general matters, including expenses, regulations, vicarious liability, offences and commencement.
This Bill is a core element of my Department's equality agenda. It is part of a wide ranging programme of measures aimed at the promotion of greater equality and the full participation of all groups in the economic, social and cultural life of this country. Its provisions and those of the Employment Equality Act, 1998, would give Ireland a comprehensive anti-discrimination code. I look forward to contributions by Deputies on this important legislation.