Equality (Miscellaneous Provisions) Bill 2013 [Seanad]: Second Stage (Resumed)

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

I call Deputy Spring who is sharing time with Deputy Buttimer.

I compliment those who initiated this amending legislation, the Minister of State, Deputy Ó Ríordáin, and Deputies Conway and Lyons. They made me aware of something I could not even believe existed in society in this day and age. We come here as people who are supposed to know everything about all aspects of society. We seem to be living in an era where equality has not quite yet been achieved. Parts of the Bill will bring about a transformation for people working in public sector jobs in the State, particularly in education and health.

This is a good day for those who are divorced, LGBT or what would not be mainstream in certain religious orders.

I welcome it but I also welcome something else contained in the Bill. Stigmas get attached in society and one of them is around rent allowance. It is a fact that it is mentioned by landlords who advertise accommodation, which more often than not is so hard to come by in this city, who state that rent allowance is not accepted as if one form of money is not as good as another form of money. It is as if there is a fear of people who are in receipt of rent allowance. It is a prejudice in society that has no origins in any republic that values everybody equally. I am of the firm belief that we must do everything we can in the event that somebody has lost their home through bankruptcy, the collapse of a business, the loss of a job or for whatever reason that gives rise to a person being in need of rent allowance. This is a very good step.

I say to the Minister of State, Deputy Ó Ríordáin, that this is a wonderful thing and it shows the value of the Labour Party in government. It shows why we are here and why we are different. No other party or individual in this House came forward with this amending legislation. It shows there is a level of knowledge among the younger members in the Labour Party and a willingness to work towards something that is meaningful not for a majority of people but for a minority and that will work for their families as well.

I suggest that we could make some more progress in terms of equality. We must also look at the next big issue, namely, migration. My view is that we are heading towards full employment in the next 18 months and we must have regionalisation, equality within the country as well. I come from Kerry and the people of Kerry need jobs. It is not all about Dublin. There is another form of equality we must consider.

In congratulating the Minister of State, Deputy Aodhán Ó Ríordáin, and in particular Deputy Lyons for another momentous occasion in the Oireachtas, it is important that we pay tribute to the LGBT group of the INTO and to GLEN and others for bringing about this significant change.

As a schoolteacher, I am one of the people who would have been affected had we not made this change. This is not just about the quality of life of people like me but, as was alluded to by the Minister of State and the Minister for Education and Skills, Deputy Jan O’Sullivan, in her speech, it is about the other people - the invisible people who were afraid for their own reasons to put their head above the parapet and to be that voice. However, they did articulate it through the INTO's LGBT group in order to make this change happen. That is why it is important that not alone do we cast aside the chill factor but we open the window to a new and different Ireland. The year 2015 will be remembered by those of us in the minority as the year when the majority accepted and embraced us. That is why this Government, irrespective of a particular viewpoint, brought about change with the Irish people. Deputy Spring referred to a particular party in government but I would prefer to say it is the body politic coming together to bring about change, irrespective of our ideologies and views.

The next leader, Jerry.

Today we stand on the brink of a new Ireland where people are equal as citizens. That did not just happen by chance. I pay tribute to people such as former Senator, Joe O’Toole, a former general secretary, John Carr, and others in the INTO who have led the campaign to bring about this change. I agree with Deputy Spring that leaders are required to bring about change. The Minister of State, Deputy Ó Ríordáin, and the Minister, Deputy Fitzgerald, in government are those leaders who propelled and brought this vehicle of legislative change to the floor of the House. Let us cast our minds back to what happened this year; we had the referendum on marriage equality, the Gender Recognition Bill, and the amendment of section 37 of the Employment Equality Act, all momentous achievements, along with the Children and Family Relationships Act. They are momentous legacies that we in this House can leave behind, no matter who we are. That is why it is important when we reflect on where we are coming from and where we go to that it is about the type of Ireland we want to see for emigrants and those who live in this country. Those of us who had the luxury of being able to come out and to be able to live a full life are grateful to those who left but who encouraged us.

I have many friends who left this country not because they wanted to but because they could not live a free and open life here. Today, another chapter has been written in a different type of Ireland and that is why it is important to commend those who have worked so hard to bring the change set out in this piece of legislation to the House. I commend the Minister of State on the work he has done.

As a republican party, a commitment to fighting discrimination in all forms is a core value for us in Fianna Fáil and we support the principle behind this Bill whose central provision is to amend section 37 of the 1998 Employment Equality Act. At present, this section allows schools to discriminate against LGBT teachers on the grounds that it is against the ethos of the school. In 2012 Fianna Fáil published its own Employment Equality (Amendment) Bill which also sought to amend section 37 of the 1998 Act to ensure that schools would no longer be allowed to discriminate against gay, lesbian and bisexual teachers.

We believe this exemption under the 1998 Employment Equality Act needs to be amended to ensure no teacher is discriminated against on the grounds of his or her sexuality. While the current exemption clause in employment legislation for religious institutions is rarely if ever used, the need to amend the law is important as it will finally end the chill effect experienced by gay employees working in schools, hospitals and other institutions which have a religious ethos. While some feel the provisions in the Bill on section 37 do not go far enough, we accept the Government is getting legal advice to the effect that this Bill is as far as it can go under the Constitution. It is a first step in the right direction and we will wholeheartedly support the Bill. However, there continues to be concerns for employees in private institutions and we will table amendments on Committee Stage in that regard. This is a complex area where the rights and freedoms of various groups are competing with each other and it is essential that we strike the right balance.

Fianna Fáil has a strong record in equality legislation in this country. Máire Geoghegan-Quinn, as Minister for Justice, introduced the legislation which decriminalised homosexual acts in 1993. In subsequent Governments, we introduced the Employment Equality Act 1998 and the Human Rights Commission Act 2000. We enacted the Civil Partnership Act and campaigned for marriage equality in the recent referendum. In May 2012, Fianna Fáil introduced legislation to prevent schools and hospitals from being able to discriminate against gay, lesbian and bisexual staff. The Government voted down the Bill after then Minister for Justice and Equality, Deputy Alan Shatter, said he was unsure if the Bill would be able to pass "constitutional muster".

It is proposed to amend section 37(1) of the 1998 Act to ensure that schools will no longer be permitted to treat staff or potential staff differently simply because of their sexual orientation or marital or civil status. In addition to protecting LGBT teachers, our 2012 Bill also sought to prevent discrimination against teachers who are separated, divorced or unmarried with children. It also aimed to protect such employees in other sectors, such as in hospitals under religious management.

Under our 2012 Bill, schools and hospitals would still be entitled to insist that staff members demonstrate respect towards the ethos in the workplace and not actively seek to undermine it but they would not be able to dismiss or discriminate against conscientious employees just because they did not approve of their lifestyle. Religious institutions would still be allowed to require that staff uphold the religious ethos of the institution. In doing so, we proposed that religious bodies would still be permitted to require certain standards of behaviour and adherence to and promotion of their particular ethos. In that sense, the religious institutions may still require loyalty to their ethos and insist that staff members do not take steps to undermine that ethos. In doing so, however, the institutions in question would not be permitted to treat staff members differently simply because the staff member is gay, lesbian or bisexual or because the person is or is not married, in a civil partnership, divorced, separated or widowed. Thus a staff member could still be required to demonstrate respect towards the ethos and not actively seek to undermine that ethos, but could not be penalised simply because of his or her sexual orientation.

Under equality legislation, it is illegal for an employer to discriminate against an employee or potential employee on grounds including gender, civil status, family status and sexual orientation. However, section 37(1) of the Act provides an exemption for religious, educational or medical institutions under the direction or control of a body established for religious purposes.

It is widely considered that this section could be used to justify discrimination against an employee simply because he or she is lesbian, gay, bisexual, transgender, separated, divorced, cohabiting outside marriage or an unmarried mother. Some people state this is a hypothetical problem and question whether such discrimination, even though it is legal, could take place. However, Members are aware it has taken place.

I wish to make a few comments on some of the existing challenges. The Gay and Lesbian Equality Network, GLEN, and the teacher unions believe section 37(1) of the Employment Equality Act is causing real problems for lesbian, gay, bisexual and transgender, LGBT, teachers. GLEN states that as a result of this provision, employees or prospective employees, whose lives may possibly be interpreted to be contrary to the religious ethos of some faiths, have lived in fear for their jobs and their prospects within employment. Members have heard some speakers in the debate earlier this evening give their own personal accounts to verify this point. GLEN acknowledges that no case has been taken under the Act but points out it serves as a daily chill factor for LGBT teachers. Employees and potential employees of religious-run hospitals are in the same position. Dr. Leslie Hannon of Gay Doctors Ireland stated, "the weight of laws like these impress upon gay doctors the type of self-censorship and 'discretion' that enable and propagate homophobia in general, simply because they serve to downsize us and make us invisible”. This is a fairly strong comment that speaks for itself.

Other speakers have mentioned the track records of their own political parties in this Dáil and previous Dáileanna with regard to the types of issues under discussion this evening. In this context, I will restate my party's position on a number of legislative items that have been enacted over the years. Fianna Fáil in government enacted the Prohibition of Incitement to Hatred Act 1989 and the principle subsequently was extended into the area of broadcasting to further copper-fasten protection against the proliferation of hateful material. As I mentioned previously, the decriminalisation of homosexuality in 1993 was pioneered by the then Minister for Justice, Máire Geoghegan-Quinn. It is noteworthy that around that time, in May 1993, the Sunday Press published an opinion poll indicating that 50% of people were opposed to a change in the law and some conservative groups mounted a vocal opposition to what they described as "teenage buggery". Many Members will remember that at the time, this was the type of opposition mounted against the legislation by some campaigning groups but that legislation was enacted, and rightly so.

As Members are aware, the Employment Equality Act 1998 contains the issue they are addressing this evening. However, that Act, which brought in measures to prevent discrimination in employment on grounds of sexual orientation, has provided much that is positive to society. Similarly, Fianna Fáil initiated the Equal Status Act 2000 and civil partnership legislation in 2010. Moreover, my party was happy to support the marriage equality referendum and was to the forefront, along with all the other political parties in this House, in ensuring the passage of that momentous referendum.

This Bill introduces a number of welcome provisions to existing legislation. Sinn Féin welcomes in particular the move to end discrimination with regard to rent supplement and the restrictions placed on interpreting of section 37(1) of the Employment Equality Act 1998. As for the amendment of section 37 of the Act of 1998, Sinn Féin welcomes the attempt to ensure the language of the Bill establishes that what happens in somebody's private life cannot be used by religious-run workplaces to exploit any exemption to discrimination law in regard to undermining the ethos of that workplace. I listened to a number of previous speakers who outlined examples of the impact of this ongoing injustice, and I welcome this legislation to bring an end to it. On foot of the passing of the marriage referendum, a number of matters are of powerful importance to the LGBT community. Hopefully, it will remove homophobia from the classroom and workplace and will prevent the chilling effect mentioned by the Minister of State, Deputy Ó Ríordáin, in introducing this debate.

In addition, as the Minister of State is aware, the work for equality continues for the LGBT community and organisations such as GLEN must be resourced. It is necessary to embolden and embed the progress made and it is necessary to be able to support in the schools young people who are lesbian, gay, bisexual and transsexual. Members must ensure there is no toleration for prejudice and there is no doubt but that a significant minority of people here still hold a degree of prejudice towards the LGBT community. Consequently, the work continues and organisations that work for LGBT equality must be provided with resources. This is an issue I will raise with the Minister of State in greater detail at a separate time. However, the work of equality continues and great progress has been made. I commend the Minister of State on this Bill and commend the Government on the marriage equality referendum. I also commend the Yes Equality campaign on the campaigning on the ground but while significant progress has been made, which must be welcomed, there is more to be done.

On the question of rent supplement, I welcome the fact that the Minister of State has taken the opportunity afforded by this miscellaneous Bill to deal with this important issue. One cannot tolerate what is happening across the State, whereby landlords are refusing tenants who must rely on rent supplement. That is not a republic or a state that has solidarity for all people. Members cannot tolerate it. Again, I welcome the provision in respect of discrimination in the advertising of jobs and it is right and welcome that the individual concerned should be able to make the complaint, rather than the Irish Human Rights and Equality Commission, IHREC. As for the retirement age issues, while Sinn Féin also welcomes the amendments, although there may be some challenges in that some employers may be reluctant to offer fixed-term contracts. Nevertheless, Sinn Féin supports it because it is the right thing to do and must be addressed.

This brings me to a huge issue because when one speaks of equality, this subject goes to the core. Most parliamentarians in these Houses regard themselves as republicans and adhere to the principles of equality. This means the issue of equality for disabled citizens must be addressed. While I rightly give credit to the Government on a range of issues, particularly LGBT equality, and in respect of the Minister of State's own campaigning on the issue of Travellers' rights equality, more must be done on disability rights. At present, 600,000 people with a disability live in this State. In the Six Counties, the rights of persons with disabilities have been recognised since 2008 on foot of ratification of the UN Convention on the Rights of Persons with Disabilities. However, a man in Dundalk is not treated in the same equitable fashion as his sister in Newry, as she has the full protection of the convention. While there are some difficulties with the administration of the aforementioned convention, an oversight body is working actively with Members' colleagues in the Six Counties on ways to improve its application. In the Six Counties, the convention operates, rights are clear and the task is to apply those rights and hold to task employers and State agencies for failing to uphold clear enumerated obligations.

By contrast, citizens in this State with disabilities who reside in this jurisdiction live in an uncertain situation. The most they can do to clarify their particular situation is to consult the roadmap to ratification of the convention issued by the Minister of State's Department. I acknowledge the Minister of State, Deputy Kathleen Lynch, is responsible for this area but as the Minister of State is aware, a number of Bills are before the House at present that seek to bring the Irish Legislature into accordance with the requirements of the convention. It is the Minister's argument that such legislative activity is necessary lest domestic legislation conflicts with the rights provided post-ratification. If one consults that roadmap, with what is a person with disability confronted? A small selection of actions illustrates the uncertainty. The roadmap declares it is intended to amend the Companies Act 2014 by the end of this year and it is expected that the mental health Bill will be published in 2016.

In relation to Article 27(a), in respect of which a reservation is to be put forward, no specific date is given nor is the nature of that reservation. In relation to Articles 33(2) and 33(3) further consultations are to take place but, again, with no specific date in that regard. Notwithstanding the fact that this Government in its current configuration may not be in place after the upcoming election, thus rendering these promises meaningless, the roadmap is disheartening. It is the language of intentions, consultations and reservations. It is the language of ambiguity, of expectations and of promises. In short, it provides no concrete support to the hopes of people with disabilities to be treated as equal citizens in this State. Given the record of this Government in fulfilling its promises to the Irish people in relation to this matter, this is depressing.

As the Minister of State knows, the Good Friday Agreement officially acknowledged that the constitutional and other legal arrangements of the day were not sufficiently adequate to protect all human rights of the Irish people in both jurisdictions. Although the Government has said it agrees with what the convention outlines, it has not, during its almost five years in power, agreed to do what is outlined therein. Similarly, the previous Government negated to tackle the issue and honour its international obligations. I recognise that positive work has been done in regard to certain sectors of our citizenship but the rights of people with disabilities are not a priority for this Government nor were they a priority of the previous Government. In practice, the rights of people with disabilities must still be fought for given the uncertainty generated by non-ratification of the convention. Case law has outlined obligations that may arise by virtue of the EU ratification of the convention but, unfortunately, these obligations will not be clear until ratification is complete. In the meantime it may take a disabled citizen to embark on a personal action through the court system to claim those rights with which the Government has already said it agrees. This means the detail and extent of rights applicable to persons with disabilities is under judicial control, subject to judicial discretion and reliant on the advocacy of differing counsel. This may be fine for legal analysts and the lawyering profession but it is not great for the wider Irish citizenship. What is needed is a comprehensive outline of the rights available to persons with disabilities. Citizens need to know and clearly understand their rights and not have to guess, or take a chance in a court action, to find out what they are. They should not need specialised legal knowledge and expertise to interpret the basic meaning of provisions.

I will condense my final points at this stage as I am conscious Deputy Clare Daly is waiting to make a contribution. We will commemorate the 100th anniversary of 1916 next year. Based on the manner in which we implement our responsibilities in this area, were Sean Mac Diarmada, a man with disabilities, alive today he would not be treated as equally on this island as were his cousins in Fermanagh. We need to do more on disability rights. This is a major issue that needs to be addressed. The provisions provided for in this legislation are positive and I support and commend them.

I thank Deputy Mac Lochlainn for affording me an opportunity to contribute to this debate. It is unfortunate that we are discussing these issues at this late hour. I welcome that we are reviewing section 37 of the 1998 Act. When I saw the Minister of State, Deputy Ó Ríordáin, and his Labour Party back bench colleagues queuing up fresh faced to speak during the opening slot, I did not know whether to laugh or cry. If they think waving the flag of gay rights will save them from the carnage they are about to experience, they are wrong. Section 37 has been already addressed during the course of this Administration by Senator Averil Power, Deputy Jonathan O'Brien and by way of the Socialist Party's Bill which has already passed Second Stage and which is superior to what is before us tonight in relation to this issue. Let us be clear, this is not a revolutionary change. This legislation seeks only to undo a discriminatory provision which should never have been put in place. To be honest, it has taken too long to remove it.

It is important to put this legislation into perspective. In my view, it reflects a cherry picking in terms of equality. Deputy Mac Lochlainn is correct that the rights of disabled citizens are not being given the same attention. The rights of older citizens are also not being given the same attention. It is coincidental that we are discussing this issue on the same day as the Bill presented by the Minister of State's colleague, Deputy Anne Ferris, on the abolition of the mandatory and compulsory retirement age received a public hearing, which is a better proposition than what is before us. This is a miscellaneous provisions Bill which provides us with an opportunity to be all encompassing and include provisions in terms of equality if we were really serious about addressing it.

I would like to speak to the section 37 issue in the context of our schools. One would think this provision was a relic of a bygone age. It is shocking that it dates from less than 20 years ago in relation to, as has been said, the shocking judgment in the Eileen Flynn case, in which a school teacher was dismissed for having a child outside of marriage, following which it was enshrined in law that there was a lawful basis to discriminate against a person or his or her employer if a school's ethos was not being upheld, which meant gay people, lone parents, divorced people, atheist teachers and so on were subject to a chilling effect. It is ridiculous that it has taken us this long to tackle this issue, but we are not tackling it in the right way.

The root of this problem lies in the fact that 94% of primary schools in Ireland are Catholic run, more than half of which are in areas where there is no alternative model. It is shocking that situation prevails. It is a consequence of the Irish State farming out years ago responsibility for health, education and social care to the Catholic church. It is now farming out this responsibility to private companies, which is a little ironic. This is all about not looking at a rights based approach. We need to change how we look at this issue. When a similar debate took place in Britain in 2007, a country in which there is a lot of religious diversity, the scope of the exemption was scrutinised. It found that exemptions on ethos-based grounds could be used not only by organised religions but by all employers who have an ethos and, therefore, were contrary to existing law against discrimination. For example, when the Catholic adoption agencies in Britain attempted to use exemptions to lawfully refuse to place children with homosexual couples, it was ruled out of order on the basis that any employer attempting to use that exemption would lose access to State funding. This was enough to eliminate the discrimination in that regard.

Regardless of religion, children should have access to State-funded schools. In a poll conducted by The Irish Times last week, 85% of people who were asked the question, "Should religion play a part in school admissions?", answered "No". Children should be taught the school curriculum, including in relation to religions and religious beliefs but in an objective, critical and pluralistic manner, as per the European Convention on Human Rights. Faith formation or religious beliefs should be taught in the privacy of the child's family or outside his or her school day by the religious organisation with which that family is involved.

Obviously teachers need to be treated in an equal manner. The current provision in the 1998 Act is reprehensible and needs to be changed. However, we are again looking at it the wrong way around. The exemptions are unnecessary in institutions as they give powers to discrimination that is not in line with a modern nation that aspires to pluralism. We need to consider different ways of doing things. For example, in terms of the nature of the exemptions in Britain and the different approach taken there, wide powers are not given to the NHS or state schools to protect any religious ethos. Generally, they are put forward in a spirit of accommodating religious liberty. For example, a Sikh might be exempted from wearing a safety hat on a construction site or Jews and Muslims would be exempt from rules in relation to animal slaughter practices. Britain's exemptions are provided from that stand-point, which I believe is better.

Everybody needs access to schools and hospitals and they should not be the prerogative of a religious ethos. It is wrong that would happen. Religious belief should never interfere with a citizen's right to health care or education and we need to stand that on its head.

Debate adjourned.
The Dáil adjourned at 10 p.m. until 9.30 a.m. on Thursday, 19 November 2015.