We resume on amendment No. 51. As amendment No. 50 was negatived, amendment No. 51 cannot be moved. We proceed now to amendment No. 52 in the name of Deputy O'Sullivan.
Equal Status Bill, 1999: Report Stage (Resumed).
I move amendment No. 52:
In page 14, between lines 18 and 19, to insert the following:
8.–The partners or members or any of them of a business or of its board or governing authority whether incorporated or not that is carried out by individuals who are and share in the capital and profits of the business as its partners or members (‘a firm') shall not discriminate in relation to—
(a) the admission of a person as a partner or member of the firm or conditions applicable to a partner or member of the firm,
(b) the status of a partner or member of the firm in relation to the work done by the firm or the sharing in the capital and profits of the firm, or
(c) the expulsion of a partner or member from the firm or any other sanction against the partner or member.”.
This amendment seeks to insert a section dealing with firms of partners etc, which was included in the original Equal Status Bill but which has been removed in this legislation. There was some lengthy debate on this issue on Committee Stage. Both myself and Deputy Fitzgerald felt that partnerships should be included under equal status legislation. The Minister felt it was more appropriate for partnership issues to be dealt with through the Companies Act or some other companies legislation. He gave us an undertaking on Committee Stage that he would discuss this matter with the Tánaiste who is the relevant Minister in terms of companies legislation. The Minister suggested that he was not the fountain of all knowledge, which was an interesting comment.
Did the Deputy find it hard to believe?
It might be hard for the Minister to believe. Our argument on Committee Stage – I reiterate it here – is that there is no reason partnerships should not be included under equality legislation because partnerships, as with other organisations, are capable of discriminating. The experience in the past is that women have not had strong representation in these kinds of organisations, and I am sure all the other categories possibly could be discriminated against in a partnership. Has the Minister information as to what the Tánaiste intends to do or has done with regard to including the issue of discrimination in partnerships in the legislation for which she has responsibility? It should be included under some legislation and my preference is that it would be included in this equality legislation.
Is amendment No. 53 included with this amendment?
Amendment No. 53 is an alternative and No. 88 is related. It has been agreed to take amendments Nos. 52, 53 and 88 together.
Deputy Frances Fitzgerald's amendment No. 53 is very much in line with Deputy O'Sullivan's amendment. As Deputy O'Sullivan said, this matter was debated at length on Committee Stage and I am anxious to hear if there was a response from the Tánaiste. We are very conscious of the current gender imbalances in partnership firms and given that our society will, hopefully, become more pluralist and multicultural, we need to ensure that future partnerships, promotions and so forth would not reflect those imbalances.
As I said on Committee Stage, this Bill, unlike the 1997 Bill, does not contain a provision dealing with discrimination by firms, including firms of partners, against members or prospective members of such firms. The legal advice was that these provisions in the 1997 Bill were anomalous vis-à-vis the provisions of the Employment Equality Act, 1998, presented constitutional difficulties and were not required to transpose the EU directive on self-employed activity.
Following Deputy Fitzgerald's suggestion on Committee Stage that anti-discrimination provisions within firms of partners, etc. be included in the Companies (Amendment) (No. 2) Bill, 1999, which was then before the House, my officials raised the matter with the Department of Enterprise, Trade and Employment. The Tánaiste and Minister for Enterprise, Trade and Employment, Deputy Harney, did not consider such a provision to be appropriate. The reasons for this include the lack of affinity between such a provision and the general thrust of the Bill, now the Companies (Amendment) (No. 2) Act, 1999, and the difficulty of addressing the constitutional and other implications of such an amendment in the time available.
Furthermore, the Department of Enterprise, Trade and Employment had received no representations on this topic and was unable to study the issues involved, consult interested parties and resolve any issues that might emerge from such consultations. It was also pointed out that, whatever about companies, company law could not be a vehicle for anti-discrimination provisions relating to partnerships.
I am not ruling out a prohibition on discrimination in firms and partnerships at some future date by statutory means. Deputies will recognise, however, that the Equal Status Bill is essentially about the provision of goods and services and that it is a complex measure with a troubled history. Given the difficulties involved, I do not intend to provide for firms or partnerships in the Bill. We have consulted with the Tánaiste and I have outlined her views. In line with my customary humility, who am I to argue?
I regret the response of the Department of Enterprise, Trade and Employment. In effect, there is no protection for firms and partnerships in relation to discrimination. If a partnership firm is not to be covered in legislation which deals with services and it is not already covered by the legislation dealing with employment, the Employment Equality Act, how can it be dealt with under equality legislation? They are the two primary pillars of legislation and it is not included in either. The Tánaiste has also indicated that it is not appropriate to companies legislation. How can we ensure there will not be discrimination in partnerships if the issue not to be included in legislation?
It could be included in future legislation dealing with labour law or it could possibly be dealt with in a provision dealing with partnerships. It might also be dealt with, as Deputy O'Sullivan suggests, under an anti-discrimination measure. The truth of the matter is that we have enough on our plates in terms of this legislation, which has had a troubled history. The issues are complex and, following my consultations with the Tánaiste, I do not propose to embark on another voyage. That does not mean, of course, that the train might not leave the station on another date. It would not be appropriate to do it now. A consultative process would have to be engaged upon and a considerable number of issues would have to be examined before we could arrive at a legislative measure such as Deputy O'Sullivan requests. However, I have not ruled out the desirability of the suggestion.
I am disappointed this cannot and will not be included in the Bill. It falls between two stools in that it is not included in the two legislative measures dealing with discrimination. Discriminatory practices within companies can be and are being used. There were a few recent examples in Britain where women at partnership and board director level were subject to restrictions at work which forced them out of the workforce. They took their cases, which were costly, to the courts and won but that has probably damaged their future employment prospects. This is not a theoretical matter and it will arise more and more often.
Will the Minister or the Tánaiste consider a form of grant funding or reward to deal with this? Sweden and other countries have a reward system under which grant funding is given to companies which actively encourage a better balance on boards and in management.
I urge the Minister to take up this matter at a future date. Everybody agrees that it needs to be addressed. I accept that a good deal of investigation will be required to produce appropriate legislation. However, I hope it is looked at in the near future rather than relegated to the dim and distant future. It is an area where there could be discrimination.
Amendment No. 57 is related to amendment No. 54. Amendments Nos. 54 and 57 can be discussed together. Is that agreed? Agreed.
I move amendment No. 54:
In page 14, between lines 33 and 34, to insert the following:
"(i) refusing to permit certain categories of members to vote at general meetings and stand for office in the management committee;".
This is one of the amendments requested by the Irish Ladies Golfing Union. It arises out of concerns that in golf clubs, and presumably in other clubs, certain categories of members are not allowed to vote or stand for office. In effect, they do not enjoy the full benefits of the club in terms of controlling what happens there and the decision making process. Being able to vote in elections and to stand for election are important elements of membership of a club. The Irish Ladies Golfing Union is concerned that its members are being discriminated against. It believes this legislation is not strong enough without the inclusion of these two and other amendments.
On Committee Stage, the then Minister of State, Deputy Fahy, referred to the Registration of Clubs Act as the legislation under which there should be redress in this regard.
It would still be possible under this legislation and the Registration of Clubs Acts for a club to refuse this right to certain types of members. In many cases, it has not been possible for women members in golf clubs to have full membership which would allow them vote in these situations and to stand for office. There is still discrimination and it would still be possible for discrimination to exist in future if these measures were not included.
I support the amendment because discrimination will continue to exist despite the measures taken in the Bill. The discrimination is doubled in that women golfers have no right to vote or to express their wish for their club's future because they are excluded from the decision making process within the club. Women golfers are often the people who help keep the club going and organise the social fund raising and the functions. It seems extraordinary in this day and age that women golfers who have contributed so much to their clubs can be precluded at times from being a full member and can only be an associate member. This means they are not allowed to vote, which is one of the most basic rights of all. Women golfers have indicated that it could take them 50 to 100 years to have a critical mass of full members for voting within the decision making process of the club because there is such a long waiting list for membership. These amendments should be accepted to give them this long delayed right which would contribute to the running of the club.
I appreciate the concern of Deputies O'Sullivan and Barnes to ensure that associate members of golf clubs, that is, women, can have a greater say in the running of such clubs, but I cannot accept the amendment. It would give voting rights to all members of registered clubs irrespective of the nature or duration of their membership. I understand there are diverse membership categories. The implications of giving voting rights to every type of member are unclear and it may not be appropriate to give voting rights to some categories of members, for example, temporary members or affiliates. Sections 8, 9 and 10 are not a vehicle for making substantial changes to the Registration of Clubs Acts, 1904 to 1995, the consequences of which are unknown.
It is my intention, as I indicated previously, to consider the wider issues mentioned by Deputies O'Sullivan and Barnes. In that context, I have referred the matter to the Attorney General. It is my intention, following receipt of his advice, to meet the Golfing Union of Ireland and the Irish Ladies Golfing Union to discuss what measures we may take to lift the discrimination mentioned in so far as it is possible. I had intended to meet them earlier but, on reflection, I decided that it would be best to await the advice of the Attorney General so that we could have a discussion on a substantive amendment which I may bring forward in this regard. I obviously cannot guarantee that there will be a substantive amendment, but I am concerned to ensure that the matters raised by the Deputies in this respect are given careful consideration to see if I can improve the situation under the legislation. I cannot give guarantees that it is possible to do so but I will certainly try.
I welcome that indication from the Minister. I presume he means that, when the legislation goes to the Seanad, there might be an amendment.
Will that address the broader issue of public funding or is it specific to this issue?
It will address the difficulty regarding the fear of some lady golfers that, as a result of being entitled to full membership, they will find themselves penalised monetarily. It is the intention to try to ensure that, as a result of the legislation, lady golfers will not find themselves discriminated against in monetary terms.
Does Deputy O'Sullivan wish to press the amendment?
On the basis of the Minister's response, I will not press the amendment.
I move amendment No. 55:
In page 14, between lines 36 and 37, to insert the following:
"(iii) refusing or failing to do all that is reasonable to prevent sexual harassment from occurring in the club;".
This area is very complex in that people have different perceptions of sexual harassment. However, it is clearly positive that, if women golfers press for their rights and full inclusion in clubs, sexual harassment would be seen as unacceptable. This provision is included in the employment legislation and it is a timely and appropriate amendment to add to the Bill. It should be spelled out so that women know they do not have to accept or suffer harassment and that part of the Bill deals with this area. I hope for and expect a positive reply from the Minister.
I support the amendment. I have also tabled an amendment on sexual harassment. Like Deputy Barnes, I want to ensure that this area regarding clubs is covered in the legislation. Section 11 deals with sexual and other harassment. I do not mind in which section it is covered as long as we are clear that there is protection from sexual harassment in clubs under the legislation.
I note that the Deputy proposes to add an additional ground to those already listed in section 8(2)(b), namely, that of refusing or failing to do all that is reasonable to prevent sexual harassment from occurring in the club. The core objective of the provisions dealing with registered clubs is to address the discrimination practised by such clubs against members or prospective members, most conspicuously on the gender ground. This is a complicated area and I do not intend to increase the difficulty by bringing sexual and other harassment in registered clubs into the Bill.
Issues around sexual harassment could be problematic in the context of a club. Sexual harassment could occur not only between persons in authority and members and prospective members of the club but also between ordinary club members. It would be a very draconian approach were an act of sexual harassment in the club bar to result in the forfeiture of that club's drinks licence.
The purpose of the District Court hearing is specific, namely, to determine if the club has a rule, practice or policy which discriminates against a member or an applicant for membership, or if a person involved in the club's management discriminated against a member or an applicant for membership in respect of the club's affairs. With a view to keeping the focus of the District Court hearings on these matters, I would not be willing to have the section enlarged in the way put forward by Deputy Barnes, and I do not, therefore, intend to include provisions on sexual harassment in registered clubs in the legislation.
The inclusion of the Deputy's amendment might render the Bill in respect of the provisions dealing with registered clubs susceptible to legal challenge. I am conscious that registered clubs are members' clubs and that, in addressing inequalities in this sphere, we must respect this status and ensure that the measures pass constitutional muster.
In the light of what I have said, I am unable to accept Deputy Barnes's amendment.
I am sorry the Minister feels it would create such a difficulty because I recall the same arguments being made when sexual harassment was debated in the context of other Bills. I cannot believe it would pose constitutional difficulties. That line of argument suggests the same laws and standards should not apply to private clubs and other areas of work and recreation. I am disappointed the Minister cannot see fit to include this measure. I will not press the amend ment but I hope the Minister will consider it further before the Bill is debated in the Seanad.
Amendment No. 58 in the name of Deputy Fitzgerald was discussed on Committee Stage.
I move amendment No. 58:
In page 15, line 5, after "club" to insert "at its registered or head office".
As the Chair said, this was debated on Committee Stage. Perhaps the Minister will give his considered response without my debating it further.
The Registration of Clubs Act, 1904, employs the term "club premises" and I understand the certificate of registration uses this term also. The term "head office" is not used in the court application process in the 1904 Act. I consider, however, given the type of clubs at which this provision of the Equal Status Bill, 1999, is targeted, that an applicant will not have difficulty serving the application specified in subsection (5) on the club and its club premises.
Moreover, once a case of this type comes before the District Court the alleged discriminating club might endeavour to challenge the validity of the proceedings on more technical grounds by alleging that the copy application has been sent to the wrong address. I hesitate to allow scope for any possibility of such procedural irregularity.
The section as it stands is clear and, accordingly, I do not propose to accept the Deputy's amendment. On Committee Stage Deputy Fitzgerald indicated that she did not feel that strongly about this measure and she would not press it. Perhaps Deputy Barnes might take the same approach.
I am guided by the history of the Committee Stage debate.
Amendment No. 59 in the name of Deputy Fitzgerald arises out of the committee proceedings. Amendment No. 61 is an alternative. Therefore, amendments Nos. 59 and 61 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 59:
In page 15, between lines 41 and 42, to insert the following subsection:
"(11) A discriminating club shall not be entitled to grants from public funds or use of public facilities.".
It is regrettable that we must consider this type of prescription and hope it will be accepted. The history of exclusion and discrimination against women in golf clubs has been so continuous and hard-faced in the clubs which still hold out in that regard, that, from a legislative and social point of view, this measure indicates the dislike society has for this type of discrimination. It is one of the few ways in which the State and the Legislature can insist that in this day and age women should have equal rights in golf clubs and have the choice of full membership if they so wish.
As has been pointed out over the years, the choice of associate or full membership should be open to women and men equally and the clubs which do not provide their members with such a choice should not be entitled to grants or public funds from taxpayers or from the EU.
I support Deputy Barnes's amendment; my amendment is similar. This provision, which would allow the Government to withhold public funds or public facilities from a club which discriminates against certain people, would be more effective than removing the drinks licence from offending clubs, which seems to be the safeguard upon which it will rely. It makes more sense to withhold public funding. By giving public funding to clubs that discriminate in this way, the State is subventing them with taxpayers' money. I am disappointed this measure has not been maintained in the 1999 Bill. It is a much more effective provision.
In using the licensing system in this regard, the Minister is probably saying something about society. The clubs to which we refer are mainly involved in sport and the State is using the sanction of withholding their licences to sell drink. This is inappropriate. I would prefer the measure we propose, that the clubs would not be eligible for grants from public funds.
It would be difficult to threaten to withdraw a licence from a club because it discriminates. There would be a great deal of pressure applied to those trying to impose that sanction. It would be difficult to maintain a campaign to use that measure to end the discrimination. The withholding of public funds would be a much more effective measure.
As the Deputies asserted, the 1997 Bill contained additional sanctions against discriminating clubs. However, on foot of legal advice, the sole sanction against such clubs is the removal of the drinks licence, the certificate of registration. My advice is that since the licence was one conferred under a statutory provision, it was legitimate to make the grant of a drinks licence a privilege enjoyed by the club conditional on the club not discriminating against any persons. I consider that the loss of the drinks licence alone is an effective sanction. As may be recalled, most public reaction to the registered clubs provisions in the 1997 Bill focused on the loss of the drinks licence.
As we all know, the Minister for Tourism, Sport and Recreation, Deputy McDaid, administers lottery funded schemes in the sports area. I understand applicants under his scheme are required to submit rules and procedures as evidence of non-discrimination on the grounds of sex, religion, ethnic origin and so on. It is also a requirement under his rules that the facility or the equipment is accessible to people with disabilities.
The bulk of lottery funded expenditure goes to community and voluntary groups. Many of these groups are active in promoting equality and non-discrimination – for example, youth, women's and travellers groups and groups dealing with child care, care of the elderly and the disadvantaged. Conditions in relation to individual schemes are decided by the Departments administering the particular scheme.
To a large extent, from an administrative perspective, the objective of the Deputy's amendment has been realised. I do not believe it would be appropriate for me to insert in this legislation the sanctions which really pertain to the administrative acts of another Minister and I do not believe it would be appreciated if I did so. In those circumstances, I will not do so but I am assured that the measures I have outlined are implemented by the Minister.
I believe that the Minister for Tourism, Sport and Recreation, Deputy McDaid, would support the Minister on this, given that he was a frequent contributor to the former women's rights committee when such a debate was raging at that committee. I see this as an inclusive Government decision and a legislative one for everyone in this House. Clubs which exclude and discriminate should not be subsidised by the public purse, particularly given the amount of subvention and grants provided by Europe which is the dynamo for equality and positive action in regard to the removal of discrimination. Not only is it acceptable that we do this in relation to this type of public funding, but it is also necessary.
This relates to the earlier debate we had about partnerships being referred to companies legislation. We are now transferring this issue to another Department. I express dissatisfaction that much of this, which should be in the primary equality legislation, is now being hived off to other Departments. I accept the Minister's good faith in that he believes it will, in effect, happen. However, it would have been better to include it in the primary legislation.
While we are on the subject of public money, a large sum of money will be spent on a national stadium. I do not know whether the Minister would like to comment but it is very important that there will be full access and that the gender issue will be uppermost in the minds of the Government in that women's sport will have full access to the national stadium. Most national stadia do not host a large number of women's sporting activities, although I suppose the camogie and women's gaelic football finals get a fair run in Croke Park. In sport generally, women's sports do not tend to get as much of the space in the grounds at club as well as national level.
To reply to Deputy O'Sullivan's last point, I have no doubt but that there will be equal access to the new national stadium for women and men and that there will not be discrimination in that respect.
The legal advice I have is that the two additional sanctions in the 1997 Act raised issues of proportionality. The 1997 Act would have applied these two sanctions to registered clubs only but not to other private clubs. My advice is to stay with the forfeiture of the drinks licence as anything else would leave registered clubs in a worse position legally than other private clubs. That much must be apparent. The sanction which is being applied is a severe one. The forfeiture of a drinks licence is a very serious sanction where a club is concerned – make no mistake about that. As we all know, clubs rely to a large extent on drink sales for revenue and if that is taken away, it has very serious repercussions for club membership and for the club's future.
In regard to the disbursement of grants by the Minister for Tourism, Sport and Recreation, administratively, he seeks to ensure that grants are not given where there is discrimination. The approach I am adopting is sensible and logical. Everybody will agree that grants should not be given if there is discrimination. I accept that principle. However, my difficulty relates to including a provision in a statute which, in effect, would lead to a certain amount of legal discrimination between registered clubs and other private clubs. The sanction which I propose is sufficient.
I am glad the Minister recognises the principle of what Deputy O'Sullivan and I have said. I would like to think that in 2001 a large majority of the public would agree that any grant funding or subvention would not be given to such clubs with in-built discrimination. I am disappointed this amendment cannot be taken on board because it would strengthen this considerably. Given what Deputy O'Sullivan said about the drinks licence and what the Minister pointed out, it seems to be an Irish solution to an Irish problem. I accept it is very much part of the Irish culture but the principle of this stands.
I move amendment No. 60:
In page 16, line 12, to delete "provides" and substitute "exists primarily to provide".
I explained the purpose of this amendment on Committee Stage. It is basically to ensure a club would not use the fact that it has an element of sport in order to get away with discrimination even though sport may be only a small part of the activities of the club. I accept the Government tabled an amendment on Committee Stage which substituted the word "necessary" for the word "justifiable" and that it, in effect, strengthened the provision. I would prefer if my amendment was included but I accept that the legislation has been improved and strengthened somewhat in this area.
I understand that on Committee Stage Deputy O'Sullivan indicated that her amendment was to prevent clubs from circumventing the provisions in the Bill by using the sporting dimension to discriminate in a more general way between men and women. I consider that the amendment proposed by Deputy O'Sullivan will not have the effect she intends. The subsection at present applies to sporting facilities or events at a club but Deputy O'Sullivan's amendment would restrict the application of the subsection to specialist sports clubs. If the amendment were accepted, the exemption would be extremely narrow and would not allow for, say, an under 21 team event or a women's event in a club. I accept that was not her intention, but that is the logical conclusion of deliberations on the effects of her amendment.
Any different treatment of men and women in relation to sporting facilities or events in a club must be relevant to the purpose of the facilities or events. Such different treatment must be reasonably necessary. In those circumstances, I trust the Deputy will withdraw her amendment.
I will not press it.
I move amendment No. 62:
In page 16, after line 45, to insert the following:
"(2) Subsection (1)(b) shall apply only to the first application under subsection (10) of section 8 made subsequent to any order under that section.”.
As I explained on Committee Stage, this amendment seeks to ensure clubs will not keep applying in order to circumvent the safeguards in the legislation, in other words, that they can have only bite of the cherry, as it were, one application.
I support Deputy O'Sullivan's amendment. It is a practical measure and I hope the Minister will accept it.
I do not consider Deputy O'Sullivan's proposed safeguard against multiple applications is necessary. I am satisfied section 10(b) precludes multiple applications from a club by way of a determination of the District Court to reverse a decision that it is a discriminatory club. The club cannot indefinitely postpone the loss of a certificate of registration by making repeat applications.
Section 10(b) provides that if a club makes an application under section 8(10) for a reversal of a decision, that it is a discriminatory club. The club's certificate of registration may be renewed in the normal way when it comes up for annual renewal the following September. The annual licensing court takes place in the District Court in September, although it has often been the case that the court has been adjourned from month to month for a reasonable period. If during the following 12 months the District Court makes a determination that the club is still discriminating, the certificate ceases on the date of the determination. If the District Court decides the club is no longer discriminating, the club is no longer liable to forfeit its certificate of registration. If, however, the District Court does not make a determination during the 12 month period, the certificate lasts for 12 months but no longer.
I accept the Minister's explanation. I will not press my amendment.
I move amendment No. 63:
In page 17, between lines 6 and 7, to insert the following:
"(b) is a member of or has applied for membership of, or avails or seeks to avail of any service offered by any organisation, club, association or similar entity in which the person is in a position of authority,
(c) is a partner or has applied to be admitted to partnership in a firm in which the person is in a position of authority,”.
This amendment deals with sexual harassment. It seeks to restore the ban on harassment generally in clubs and partnerships that was included in the 1997 Bill but is not included in this Bill. As we debated this issue when we dealt with an amendment proposed by Deputy Barnes, I do not propose to repeat the points that were made. I stress that the Irish Congress of Trade Unions is particularly concerned that this legislation is not as strong as the previous legislation on the issue of harassment. Between now and when the Bill is taken in the Seanad, will the Minister consider including some form of wording to address our concern that the issue of harassment should be covered in the legislation?
I will not take up the time of the House by repeating the argument in support of this amendment. It is important to address this issue in the legislation. There is a good deal of proof that harassment in terms of not only discrimination but intimidation is taking place in certain circumstances. The act of harassment is a barrier and denies people their rights. It can be inflicted not only in a financial way but also in an emotional and mentally punishing way. I appeal to the Minister to reconsider this issue between now and when the Bill is taken in the Seanad. Harassment is a reality and it will become increasingly more common as time passes. Women and minority groups will need access to this type of action, which I hope will be provided for in the Bill.
I cannot accept this amendment. Following careful consideration of the scope of the prohibition on sexual harassment and harassment in the 1997 Bill, it was decided that the prohibition in that Bill was justifiably wide and required rationalisation. Sexual harassment and harassment are prohibited in this Bill essentially because they constitute a form of discrimination. Logically, the prohibition on sexual harassment should operate only in those areas in which discrimination is prohibited, that is the provision of goods, services and accommodation, disposal of premises and education.
While the Bill contains sanctions against discriminatory registered clubs, it does not prohibit such discrimination. It would be inappropriate to have a prohibition on discrimination in what are essentially private clubs. Similarly, since partnerships do not come within the scope of this Bill, a prohibition on harassment in the partnership area is not included. Just as the prohibition on sexual and other harassment in the Employment Equality Act applies in the employment area, the prohibition in this measure applies in those areas where discrimination is prohibited.
I request the Minister to reconsider this issue. In effect, he is saying this issue cannot be covered in any legislation because it does not relate to employment or a service within his definition of this legislation. During an earlier debate this morning he was quite willing to include matters in legislation that might not have been intended in the original legislation. I refer to the issue of refugees, asylum seekers, trafficking and immigration. Those matters have been jumbled together in legislation. It is not outside the Minister's ability to broaden legislation when it suits him to include other matters. I feel strongly that harassment needs to be covered under some legislation under the equality agenda. I strongly urge the Minister to consider how he will deal with this issue. I would prefer if he would deal with it under this legislation when it is taken in the Seanad.
I support what Deputy O'Sullivan said. Given that this Bill is so wide-ranging and covers so many areas and groups, who are not covered in other legislation, the exclusion of this issue is a yawning gap, so to speak, in the legislation. This issue should be addressed in it to endorse what Deputy O'Sullivan said. Its inclusion would strengthen the legislation. Given that this issue is not addressed in other legislation and having regard to the length of time it takes to introduce legislation, I ask the Minister to address this issue in this Bill. As Deputy O'Sullivan said, a precedent has been set in terms of including other matters in other legislation. Given that this issue is of central importance in regard to discrimination in the areas we discussed, I appeal to the Minister to include a provision to address it when the Bill is taken in the Seanad.
The difficulty with including this amendment is that it would broaden the scope of the legislation and include an area of activity that was not intended in the first instance.
The Minister and his Cabinet colleagues do that all the time.
No, this legislation has been given careful consideration. As Members are aware, the Bill had to be reconsidered in great detail in the past number of years as a result of a decision made by the Supreme Court which found that the Employment Equality Act was unconstitutional. The Equal Status Bill was not deeply considered by the court but, because it contained provisions similar to those in the Employment Equality Act, it was obvious that it was also unconstitutional in three respects. The legislation has been given careful consideration since then and it was decided that it should deal with the prohibition of discrimination in certain distinct areas, namely, the provision of goods, services and accommodation, the disposal of premises and education.
The effect of the amendment would be to broaden the scope of the legislation to deal with areas of activity it was not intended to cover in the first instance. Logically, therefore, the amendments which Deputy O'Sullivan and Deputy Barnes have put forward in regard to where discrimination should be prohibited should have been tabled earlier. It is illogical to bring forward these amendments, particularly as I do not recall the Deputies seeking to extend the areas where discrimination would occur when it might have been appropriate to do so. I am not saying that Deputies O'Sullivan and Fitzgerald did not argue in favour of extensions. However, I do not recall these specific matters being raised on Committee Stage.
In my view the thrust of the legislation would be changed entirely by what the Deputies are now suggesting. That is something which would have to considered in great depth. Deputy O'Sullivan said that the Minister is able to take the action she requires when he so desires.
Perhaps the Minister will conclude as his two minutes are exhausted.
In fairness, the Minister must consider the vehicle in which the goods are travelling. To be honest, this legislation is not an appropriate vehicle, at this time, for the amend ments which have been put forward, whereas the amendments we discussed this morning in respect of the Illegal Immigrants (Trafficking) Bill are appropriate to that legislation.
Perhaps the Minister will conclude as his two minutes have expired.
That is my considered view of the position.
In the previous legislation, the sexual harassment issue was dealt with in that section. I do not know whether the Minister is suggesting that we should have tabled an amendment to the effect that a person is being sexually harassed in one situation but not in the other. As far as I am concerned, that is the only way it could have been included in the grounds for sexual harassment. It does not seem to make any sense. It is perfectly logical to include the proposal suggested in the amendment in this section and I ask the Minister to reconsider the position in that regard.
The constitutional judgments that were made in relation to this legislation and the other Act did not, in any way, touch upon the possibility of adding measures in respect of harassment. I seriously doubt that it would make any difference in terms of the constitutionality of the legislation if they were included here.
Amendments Nos. 89 and 90 are related to amendment No. 64 and they may be discussed together. Is that agreed? Agreed.
I move amendment No. 64:
In page 18, line 5, after "who" to insert "contravenes subsection (1) or who”.
This amendment is concerned with advertising. I seek to make it an offence to publish a discriminatory advertisement, rather than it only being an offence to make a false statement in order to secure publication. This is a complicated point. According to the legislation, it is an offence to make a false statement to secure publication but it is not an offence to issue a publication. In other words, a person will be brought to court if they make a false statement whereas they will only be brought before the authority if they publish a discriminatory advertisement. It seems that the two should be dealt with together rather than by means of two different mechanisms. We debated this matter on Committee Stage with the former Minister of State, Deputy Fahey, and I do not believe we got much further than his emphasising that that was the case. Will the Minister comment on this issue?
There is no doubt that, whatever about the amendments, the Minister, Deputy Fahey, went further.
The Deputy's approach would make certain contraventions of the Bill both offences and matters which can be investigated by the director. As I explained on Committee Stage, I am advised that it would be impermissible for a matter to be prosecuted criminally while at the same time having it investigated by the director. In other words, the twin-track approach recommended by the Deputy cannot be adopted. I understand that Deputy O'Sullivan took the point of view of the former Minister of State at my Department, Deputy Fahey, on board when this matter was discussed on Committee Stage and I can only hope that I will be as fortunate.
I suppose I had better accede to the Minister's request in that regard. It is not a terribly important point, we will be debating far more important matters in respect of the legislation. It is merely a matter of what recourse one takes if the legislation is contravened. I will not press the amendment.
I move amendment No. 65:
In page 18, line 20, to delete "enactment or".
It seems wrong that any Act automatically overrides this legislation. I repeat my earlier argument that this legislation should be primary and we should not rely on other legislation to ensure basic equality. That is the intention behind the amendment.
Section 14(a) exempts from being deemed discrimination actions required under a statute, court order, EU measure, international obligation, etc. In relation to the term “enactment”, for example, distinctions in the tax code based on age, marital status or family status or in social welfare legislation based on age or family status will not be regarded as discrimination under this legislation. It would not be practical in this Bill to enumerate all such items, whether direct or indirect, of other Departments' legislation and then proceed to insert specific exemptions, which would need to be tailor-made, to each such Act. I cannot conceive how it would be possible to enact legislation in the social welfare area, for example, without such legislation encompassing different treatment on grounds such as age, family status and so on. I should point out that there was a similar provision in the 1997 Bill. For these and other reasons, I cannot accept the amendment.
Is the Minister in a position to reassure me that he is satisfied that the measures in the legislation will be fully covered under the other items of legislation to which he referred?
As I pointed out when dealing with amendments Nos. 5 and 6, the exemption in section 14 applies only to actions which are mandatory under the relevant statute and not to the discretionary actions of statutory bodies or public officials. Lest there be any doubt about this matter I should add that even where a matter is exempt under section 14, the obligation not to discriminate would apply to the interaction between officials and the public in the delivery of the relevant statutory function. For example, the fact that the requirements of the tax code are exempt does not allow Revenue officials to discriminate in respect of granting access to buildings and information or in providing advice or other forms of assistance.
That is as much reassurance as I can give Deputy O'Sullivan. However, I am satisfied that her amendment would not be desirable for the reasons I have outlined.
Amendment No. 65a is out of order as it does not arise out of committee proceedings.
I have been so advised, but I ask the Minister to take the principle and content of the amendment on board.
That is outside the context of the debate in the House. Amendment No. 69 is cognate on amendment No. 66. These amendments may be taken together.
I move amendment No. 66:
In page 19, line 28, to delete "with the agreement of" and substitute "after consultation with".
There are many positive aspects to this section which deals with regulations concerning vehicle equipment, particularly those dealing with access to transportation for people with disabilities. This amendment seeks to ensure consultation with the Minister for Public Enterprise rather than her agreement so that the equality agenda has primacy over the transportation agenda when it comes to access for people with disabilities. In other words, it seeks to ensure that the Minister with responsibility for equality issues would ultimately make the decision in terms of access for people with disabilities.
With due respect to the Minister for Public Enterprise, Deputy O'Rourke, a subsequent Minister could give all kinds of arguments as to why he or she cannot afford accessible transport or whatever. I am seeking to give primacy to the equality aspect when it comes to access to transportation for people with disabilities.
I have tabled a later amendment along the same lines as this amendment. I welcome the strengths of this section of the Bill but the phrase "in consultation with" is always more positive and the Minister would be an expert in such consultations. I support strengthening the Bill as suggested by this amendment so that the decision is not left to the discretion of vehicle owners or transport authorities. This issue is badly dealt with at present.
I am not convinced of the need for amendments Nos. 66 and 69 which envisage my making ministerial regulations in what is, by and large, the operational area of the Minister for Public Enterprise, Deputy O'Rourke. The amendments would allow me to make such regulations having consulted with the Minister, rather than secured her agreement. It may not be the Deputy's intention but accepting this amendment would be tantamount to declaring civil war which I am not prepared to do.
An earlier amendment tabled by Deputy O'Sullivan would have had me trespassing on the Tánaiste's turf. I assure the Deputy that these Ministers have signs outside their Departments which read, "Trespassers Will Be Prosecuted". I am not willing to take the risk in those circumstances.
The Minister for Public Enterprise, Deputy O'Rourke, has indicated that the Government is strongly committed to bringing about a situation where public transport facilities are fully accessible to all at the earliest possible date. Anyone who knows Deputy O'Rourke will know that if she says that is to happen, it will happen. It is also her policy that all public and private transport operators should, as far as is possible, make their services and facilities accessible to people with disabilities, a fact which all Members will welcome. It is appropriate that I mention the work being done by the Minister of State, Deputy Mary Wallace, in this respect which has been commended at every level. The word "agreement" was included in the Equal Status Bill, 1997, following an expressed decision of the then Government.
I am interested to hear that two of the three female Ministers are striking terror into the Minister's heart. I accept that there is not a great deal of difference between the wording in the Bill and the wording I am seeking to insert. However, last year, under Deputy O'Rourke's nose, Dublin Bus bought buses which were not accessible to wheelchair users. There was considerable protest at the time so vigilance is essential in terms of access to public transport.
I compliment Bus Éireann in Limerick which recently introduced a number of accessible buses without any fuss. These vehicles are extremely effective and successful. However, Dublin Bus had to be dragged kicking and screaming into buying accessible buses and went ahead and bought some which were not accessible when this issue was under debate and public scrutiny. There is justification for my concern that the equality agenda should be supreme in these matters.
We all welcome the progress made on this issue. However, glaring gaps remain and the purchase of buses which are difficult for disabled or elderly people to access came as a shock and a surprise. We hope that no other purchases will be made without the equality principle being paramount.
I will also refer to the repair and replenishment of train and DART carriages, and station platforms in particular. Any improvements taking place in this area should place accessibility and equality at the top of the agenda, regardless of what restructuring must take place.
I move amendment No. 67:
In page 19, to delete lines 31 to 33 and substitute the following:
"(a) are purchased or leased by an operator of a passenger road service or passenger rail service and are to be used for the purposes of either such service, or
(b) are purchased or leased for use as a taxi or hackney.”.
This amendment gives rise to an extension of the discussion of Deputy O'Sullivan's amendments.
My proposals in relation to the transport area are the same as those in the 1997 Bill, except for minor technical changes. The provisions in sections 17 and 18, which set down special provisions as regards transport accessibility for people with disabilities, are innovative and are not parallel to or drawn from existing legislation governing these areas. In contrast, the existing regulatory framework regarding taxi permits, accessibility issues for people with disabilities, as well as quality and service issues, needs to be addressed. These functions are vested in the relevant local authority which issues the taxi or hackney licence and come under the broad aegis of the Minister for the Environment and Local Government.
There is no need in the Equal Status Bill for me to be empowered to make disability access regulations in relation to taxis and hackneys since this would be a further level of unnecessary control.
It might be a necessary control. How can the licensing regulations be enforced if taxi and hackney drivers do not abide by the rules and standards? Evidence shows that many taxis and hackneys are inaccessible to people for whom they have been designed. How can we ensure that suitable vehicles are available to those who need them?
The Minister for the Environment and Local Government is empowered under section 82(1) of the Road Traffic Act, 1961, to make the regulations in relation to the control and operation of public service vehicles, which are mechanically propelled vehicles used for the carriage of persons for reward. The operation and licensing of wheelchair accessible taxis, hackneys, limousines and their drivers is controlled through the Road Traffic Public Service Vehicles Regulations, 1963 to 1999. Under these regulations, local authorities are responsible, inter alia , for determining the number of taxi and wheelchair accessible taxi licences which may be granted, for monitoring the adequacy of the taxi service in their areas and for deciding on action to ensure that the demand for these services is adequately met.
Everyone will welcome the recent announcement by the Minister of State at the Department of the Environment and Local Government, Deputy Molloy, that 500 wheelchair accessible taxis will be provided in Dublin. This means there will be an improvement in the situation. I am not suggesting that the current position is adequate; it is not. There is no doubt there is a need for a greater degree of access for people with disabilities to all types of transport. When one meets disability groups, the issue they raise at all times is access, whether it is access to buildings, transport or footpaths. This is a perennial problem for people with disabilities and it is appropriate that we should discuss it here. I assure the House that in so far as the Government can, it is determined to try to ensure that access for people with disabilities across a wide range of services will be improved.
I move amendment No. 68:
In page 19, to delete lines 36 and 37.
This relates to the exemption of regulations for people whose principal place of business is outside the State, which is a fairly sweeping exemption. Is it possible to be more specific about the type of activities to be included outside the State? If the North/South bodies are put back on track, perhaps it would be possible for the relevant Ministers in the North and South to discuss the movement of vehicles between Northern Ireland and the Republic.
The clause the Deputy proposes to delete takes account of the practical realities that tour company buses come to Ireland by ferry from Britain, France and Germany and leave again. I do not envisage such operators coming within the scope of the ministerial regulations made under section 17(1). I hope that clarifies the position.
That clarifies that matter. However, many taxis, buses and trains travel across the Border to and from Northern Ireland. It would be desirable to have maximum accessibility and legislation should be introduced to allow such cross-Border activity.
The difficulty relates to the fact they come within a different jurisdiction. If they come into this jurisdiction, it would be almost impossible to introduce the type of legislative measure the Deputy has in mind. I am not denying the desirability of doing so, but it would not be possible from a jurisdictional point of view. Where, for example, a criminal offence is being committed, it is possible to regulate that. If a person comes in over the Border, for example, and is under the influence of an intoxicant or drink, it would be open to the gardaí to prosecute. I do not see how it would be feasible in this jurisdiction to impose and enforce the type of regulation the Deputy has in mind. It would be desirable but it could not be achieved without a lot of deliberation and bilateral agreement.
I move amendment No. 70:
In page 20, to delete lines 13 and 14.
We discussed this point on Committee Stage. Section 18(2) states that "'stations' does not include any premises at those stations that are not normally used by bus or rail passengers". The Irish Council for Civil Liberties suggested that this should be deleted. We want to ensure accessibility on the premises, not just in the areas accessible to passengers. This is in the interests of people who work for rail and bus companies as well as in the interests of the public.
This subsection seems to exclude offices or premises which may be used for access. As Deputy O'Sullivan said, we are not just talking about passengers. Offices should be accessible even if they are not normally used or are only used by people within the vicinity of a station rather than by passengers. That should be removed from the Bill as we are trying to improve accessibility.