I remind Senators of the grouping of amendments. Amendments Nos. 33 and 79 to 85, inclusive, are being taken together. Amendments Nos. 81 and 82 are alternative proposals.
Employment Equality Bill, 1997: Committee Stage (Resumed).
Debate resumed on amendment No. 33:
In page 18, between lines 19 and 20, to insert the following new subsection:
"(6) Where an educational or training body wishes to apply to reserve places in a vocational training course it shall, after consultation with the Authority, prepare and publish a statement describing the religious ethos of the institution and explaining why it proposes to reserve such places. Such a statement shall be prepared and published by the persons responsible for the day to day management of the institution.".
—(Senator B. Ryan.)
The grouping of the amendments makes this difficult to debate as amendment No. 33 relates to section 12 and the other amendments relate to section 37. Although there are similarities between them they are not the same kind of sections.
The amendment I moved requires people who are given the right to be excluded from certain provisions of the Bill to explain why they feel they have an ethos which necessitates this exclusion. Nobody is trying to take anything from them or impose anything on them. The rhetoric used by people who claim legislation like this is a threat to them is nonsense. We simply want to make sure that when they defend what they claim they are entitled to defend, they do so in accordance with natural justice and in a manner consistent with a democratic society. We should know why they are doing it and what they are doing. Amendment No. 33 requires a statement to be made by the people who run the institution, not by some detached religious organisation two steps removed from the responsibility of running the organisation.
The relationship between amendment No. 33 and the other amendments is tenuous but it addresses the point I made on Second Stage. It is absurd to protect something which is undefined and remains undefined in the Bill. There is no definition of ethos. I put on the record what an outside observer might determine to be the ethos of some of these religious institutions in terms of employment policy — to protect persistent paedophile offenders while reserving the right to dismiss people because they disagree with them on an ethical or ideological basis. That is intolerable. It is for that reason I have tabled amendment No. 82 which deletes "reasonably necessary" to protect the ethos and makes it "essential". That is not a radical idea. I would prefer to get rid of section 37 altogether. It beggars belief that persons, groups and institutions who maintain that one of their primary moral functions is to eradicate discrimination and disseminate the ideas of tolerance, charity and love between citizens should seek to reserve for themselves, uniquely among all the institutions of the State and of society, the right to discriminate. This is a paradox.
If one accepts there are political difficulties for this and previous Governments in addressing this issue, the very least one can expect is that this power should only be exercised in circumstances where it is essential, not just "reasonably necessary", which is a woolly phrase. When you take that vagueness and link it to the absence of any definition of what constitutes religious ethos, we are in an indefensible position.
I know there has been much argument about and discussion of this Bill in both Houses of the Oireachtas and in the Supreme Court. Everybody is informed on it.
It is not my intention to push my amendments to a vote on Committee Stage, but I hope the Minister will come back on Report Stage with an amelioration of positions and we can come to a conclusion then. There are two reasons for this: I would like the Minister to listen to the arguments and consider them, and there is a problem with the wording of one of my amendments.
It is extraordinary and paradoxical that we are inserting the right to discriminate into an anti-discrimination Bill. That is the point where I began this discussion and I concede that I have lost that argument. The Supreme Court has, very clearly, judged that there is a right to discriminate in certain circumstances. I believe this to be wrong but I concede that it is constitutionally sound, that it is what successive Governments want and I will waste no more time on this argument.
In the course of the Supreme Court judgment on this Bill — page 55 or 56 — reference was made to the question of ethos. The Judges of the Supreme Court — superciliously and with no little contempt for those who drafted the Bill — made reference to the fact that the Bill contained no definition of ethos. They went so far — tongue in cheek — as to consult Chamber's dictionary and they included this definition in their judgment. This indicates that ethos should be described and defined in this Bill. The Minister must look at some of the things upon which her Department has not acted. I know her Department were unable to find a satisfactory definition of ethos and I can understand why. The concept is ephemeral. Definining it is like trying to pick up mercury.
Could I direct the Minister's attention to an attempt to do so? In section 15 of the Education (No.2) Bill, 1997, the determination of the characteristic spirit of a school is as close a definition of ethos as will be found in any legislation. Will the Minister look at that section of the Education Bill before the Report Stage and indicate why that definition could not be included in the Bill? There is a need for certitude. This resonates with Senator Ryan's amendment. Employers must be required to indicate what is their ethos. Is it fair that an employer can move the goal posts? Ten years ago not complying with a Catholic ethos meant not going to Mass, 15 years ago it meant using contraception. Now it might mean eating meat on Ash Wednesday. I do not know. Ethos can change. Is it fair to expect an employee to conform to an ethos when he or she is not told what it is?
In amendment No. 79 I, unfortunately, omitted the word "appropriate". I had intended the amended section to read:
(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where, taking all appropriate circumstances into consideration, it is reasonable to do so in order to maintain the religious ethos of the institution.
I will put down an amendment to that effect on Report Stage. This will deal with a situation where one parish priest may interpret the Catholic ethos in one way and his successor as chairman of the board of management may take a different view. Employees must be able to draw attention to such circumstances.
Section 37 (1) (b) is a huge improvement on the Bill as originally drafted and I recognise the progress that has been made. Officials of the Department of Justice, Equality and Law Reform have been more than helpful in making themselves available to explain and discuss the Bill. While we have not reached a consensus, progress has been made. I accept that a strong burden of proof attaches to this provision. If this section were to be tested in a court it would be necessary to establish that the ethos of the institution was understood, that it was being undermined, that it was being or would be undermined by an employee or prospective employee and that the action being taken by the board was reasonably necessary. The concept of reasonableness is well ensconced in law and well understood by the courts. However, it is not so well understood by employees on the ground.
The fact that this has been found to be constitutional has given the wrong impression to many people. This provision will be tested in the courts. The first time I see this provision abused by any authority attaching to a primary school I will test it in every court in the land and in the European Court. The Minister might consider including the phrase "on the religion ground" in paragraph (b) as it is in paragraph (a). This would confine the powers of employers to some extent. I am not sure that the churches understand the importance of this phrase. This phrase is concisely defined in a previous section of the Bill. Many parish priests may think the phrase "on the religion ground" allows them to distinguish between a person who goes to Mass every day and one who goes only on Sundays. This provision does not allow for this sort of distinction. Will the Minister state precisely what is meant by "on the religion ground"?
May I refer to another issue which will be considered if this Bill is tested in the courts? Section 15(2)(e) of the Education (No. 2) Bill, 1997, requires boards of management to have regard to the principles and requirements of a democratic society and to have respect, and to promote respect, for the diversity of values, beliefs, traditions and ways of life in society. I do not understand how a board of management is going to establish this narrow ground between what constitutes respect for the diversity of traditions and beliefs, which they are required to do under the Education Act, and to take action to stop the undermining of their ethos as is allowed under this Bill. This provision could mean a lot of money for lawyers. It is unnecessary and we will regret it.
I have more difficulty with section 37(1)(a) than section 37(1)(b). Paragraph (a) states:
it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or
This provision will be abused and used to attempt to sack teachers on flimsy evidence. It will be used unfairly as a final stick to beat someone who is not liked for other reasons. It is open to the most confusing of interpretations and it should be reconsidered by the Minister. Amendment No. 79 is very mild and suggests the insertion of the words "taking all circumstances into consideration". Amendment No. 80 proposes replacing the word "reasonable" with "necessary". Senator Norris has suggested the word "essential" but it is the same argument. It is not something which the board regards as reasonable but it would be a case of it saying "We had to do this in order to protect the ethos". This is very different to a school board saying "We thought it was reasonable to employ Brendan Ryan instead of Joe O'Toole because. . . " This involves no great burden of proof. However, if the board said "We would not give a job to Joe O'Toole because it was essential or necessary not to do so because employing him would have undermined the ethos of the school", such a position involves a fair burden of proof.
Every Independent Senator is of the view that schools have the right to protect their ethos once we decide what it is. They have the right to protect themselves against anyone undermining that ethos. As general secretary of a teachers' trade union I would not support any teacher taking any action which clearly undermined the ethos of a school. That would not be acceptable. However, the problem will be when people interpret a person's actions as undermining the ethos of a school when they were never intended to do so and where a reasonable person would not see them as doing so. The board just has to say "From our view, from our context, in our world, within our ism, in the context of our beliefs we think it is reasonable not to employ a woman who wears a skirt above her knees because it undermines our ethos." These are the kind of nonsensical areas we can get into. If the word "reasonable" was replaced by "essential" or "necessary" then there is a burden of proof which means something to a judge and which can be challenged by a teacher or an employee.
My proposal on this provision in the debate on last year's Bill was that if this discrimination was allowed it should be confined to institutions which have a religious objective. That does not and should not include schools. Schools should not be instruments of social engineering or proselytisation. They are there to holistically and psychologically develop children to their full potential. Religious development is part of that but the promotion of religious beliefs should not be part of the work of schools supported by the State.
I would like to make a number of substantial points but I would prefer to leave them until the Minister has replied. I do not wish to blur the focus. Senator O'Toole has asked a number of extremely important questions and I would like the Minister to reply while they are fresh in her mind. I wish to clarify Senator O'Toole's comments on the Supreme Court judgment which might be capable of being misconstrued. Perhaps I misunderstood him. I do not think the Supreme Court created a right to discriminate. It gave legislators permission to create that right but it would be a shameful day for this House if we did so. We are allowed to do so by the Supreme Court but we should be careful about doing so if we do so at all.
I would not wish it to be felt that this side of the House does not respond to proven cases of abuse by members of religious communities — we denounce such horrific cases. No one should condone such abuses by silence, action or word. I am open to correction but I see a distinction between such behaviour and the rights of members of a community who subscribe to and live by a religious view to send their children to an educational institution which promotes that religion or view. There is much validity in Senator Norris' comments on the most unacceptable behaviour of members of religious orders against vulnerable young people. Nevertheless, I assume that the Senator would not deny parents the right to send their children to schools which have a particular religious ethos. I use that term because I have difficulty invoking any other term, but I must then refer to Senator O'Toole's comments. I have to be careful as this may come back on me some day and I might be calling on him to put into action the determination he has so forcefully articulated today. Hopefully not, nevertheless I keep that in reserve.
I listened carefully to what Senator O'Toole said about ethos. One of my difficulties is that I am unable to grasp what is meant by a definition of ethos. Ethos means something different to every religious group or belief. Therefore, it could be quite difficult, if not impossible, to define in law what in layman's terms is understood as a set of values. I am not suggesting that we irresponsibly consign it to local arrangements, but parents of students in a school offering a particular religious emphasis have an understanding of that emphasis. It is open to question whether that is sufficiently clear to define ethos for the protection of a prospective employee.
How could it be? The Senator has answered the question himself.
Nevertheless, we then come to the question of how we balance all of the rights involved. How does one balance the constitutional rights of parents who wish to send their children to a school which promotes a religion which they aspire to and have lived by? How does one protect their rights to send their children to a school which promotes a religious practice, atmosphere, ethos or whatever word we may wish to invoke? This is separate from the board of management, which is defined as the guardian or custodian of the ethos of the parents.
I accept that.
The board does not have the right to decide what the ethos should be. It is only the guardian or custodian. The constitutional right emanates from parental rights, not from the rights of the board of management. The balance of the rights of parents and their children and the duties of the boards of management as guardians or custodians of these rights as against the rights of employees to seek equality of opportunity in employment in such institutions is a delicate one. The Supreme Court judgment stated on page 55:
It would therefore appear that it is constitutionally permissible to make distinctions or discriminations on grounds of religious profession, belief or status in so far, but only in so far, as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution.
All contributions have been concentrated on the negative side and I know those who spoke can also see a positive side. However, they have seen it necessary to deal in detail with the negative side. It is important it be put on the record that the Bill gives protection to people from discrimination on grounds of religion which was not available until now. If I were a known or professed atheist or had a religious belief contrary to the Catholic or Church of Ireland religion and approached a school for a job, it is reasonable to assume that if I expressed such belief before the board of management I would have no chance or prospect of getting the job. It would be fundamentally naive of me to have applied for the job in the first place. If I had any common sense I would know I would not get it. That sort of discrimination is confronted in the Bill and it protects people from it, although its protections go further. It is important to emphasise that protection now exists, because it was not in place before.
The Supreme Court has deemed it permissible to discriminate, but is it right for us as legislators to introduce legislation to discriminate? The issue of religion is most emotive and is one where people become most concerned because there is a significant diversity in Ireland today. Nevertheless, I suggest that there are grounds in this Bill for discriminating in other areas. While it facilitates discrimination, it is on the grounds of striking a balance and seeking what is reasonable in all circumstances.
Will the Minister in her reply state whether it is possible to define ethos in legislation, given that there is a multiplicity of them? I am not omniscient in this regard. I confess I do not know if it is possible to define ethos because it is a set of values which each of us has and it can be religious, social or whatever. Senator O'Toole correctly invoked the work "ephemeral". It is something which cannot be pinned down and that is the difficulty any legislation would have with it. Since a constitutional right exists and as long as it is supported, we have an obligation to follow through on the judgment.
I wish to make two points. One, I wish parents were as extensively consulted about the ethos of schools as all the enthusiasts for parental choice suggest they are. I was never asked by the Bishop of Cork whether the school which my children attend should be a Catholic school or otherwise. We are told we can choose what school to which to send our children, but the working out of the ethos of a Catholic school is most assuredly a job which has never been offered to parents. It is a take it or leave it operation; one accepts the ethos, ephemeral though it may be. One accepts someone else's definition of religious ethos.
There should be nothing in law which is not capable of being dealt with in law.
Exactly.
If ethos is an ephemeral concept, the last place to deal with it is in law. The worst place would be the Constitution, the next worst is law. The word should be omitted if it cannot be satisfactorily defined. Otherwise, it gives a power to people who have the capacity to misuse it, and they will misuse it.
One welcome aspect of section 37 is that it accepts that the bishops control schools. Their lordships would love to pretend they are only servants of the people. In reality, the church does not provide a religious service, it controls and directs schools. At least there is now in law a clear definition of the hierarchical authority in the school system. The schools are controlled and/or directed by the patrons, the religious organisations, be they Roman Catholic or Church of Ireland. I find it just as difficult to accept that certain hospitals will be permitted to decide to recruit people on the basis of denomination in the same way as certain schools do. The naming of the hospitals clarifies the matter because there is no longer this vague concept of ethos. If schools under the control of the Roman Catholic Hierarchy, its Church of Ireland equivalent or someone else, whose ethos was defined by the judgment of a certain bishop were mentioned in the Bill, there would at least be law which could be dealt with. However, their lordships do not want to be seen to be in control of anything, because the myth is they are providing a service and are not in control of anything. At least in section 37, that myth has been scuppered.
It struck me as ironic when the Supreme Court judgment was delivered on this Bill that, despite the controversy which raged over this section and the principles contained therein, the section was not an area in which the Bill was found unconstitutional, but in different areas. As regards the principles of the Supreme Court judgment and the Government's reaction to it, we cannot cravenly submit to a Supreme Court judgment in a petrified fashion and not allow a single word of a Bill, as adjudicated by the Supreme Court, to be changed. It is as if our power or will to deliberate on legislation has been taken away by virtue of a Supreme Court judgment. That is not the case and I will make that point again in relation to the disability amendments.
It is disappointing to see the Government's reaction to the Supreme Court judgment has been to remove the offending sections, as if our ability to think for ourselves had been removed in the process. The fact that controversy has raged over this section and that it was debated by the previous Seanad and Dáil does not alter the fact that society is changing rapidly. We might have thought we were living in a relatively homogenous society but society is changing almost on a monthly basis, not simply in regard to religious ethos but also in regard to people's views on religion. There may have been a time when the vast majority of parents were quite happy to send their children to so-called religious-run schools but we are rapidly reaching a situation where, although schools may be controlled by bishops, the number of religious in them is almost nonexistent. The number of religious school principals is dwindling at the rate of knots. As the church's position in society changes, this Bill will still be on the Statute Book and we must ensure that we do not reflect a societal position which has changed even since the publication of the original Bill.
I hope the Minister will take on board Senator O'Toole's comments on section 37(1)(a). The section needs to be tightened. The Supreme Court did not confer a right to discriminate generally. I was disturbed to hear reports in a radio interview this morning of disturbances created at a meeting by a group which has difficulties with the relationships and sexuality education programme.
The Senator might be even more disturbed to learn that the woman involved in the disturbance runs a school and is responsibility for defining its ethos.
Senator O'Toole has made my point for me. Section 37(1)(a) will undoubtedly cause difficulty. I urge the Minister and the Minister of State not to fall down under the Supreme Court judgment but to exercise independent judgment on this and allow us assist them in that process.
I heard the interview to which Senator O'Meara referred but I deemed it unworthy of comment on the Order of Business. I understand the interview was given by a phenomenon called Mena Bean Uí Chribín. She is certainly the best argument for the opposite side of the debate and the more she appears the better it will be for her opponents.
An Leas-Chathaoirleach
That is not relevant to the section.
What a relief it must be to the parents of Ireland that she has been excluded from the operations of the section.
We have spread the net very wide on this issue and I know the Minister of State, with the assistance of her advisers, will reply to Senator O'Toole's questions with her usual incisive clarity.
Senator Liam Fitzgerald said he was unable to define "ethos". The Senator has been professionally involved in teaching and has an acute political mind having been a public representative for many years at local and national level. Yet, he is unable to define "ethos" other than to indicate it is something shifting. That is grossly unfair. I could draw a line in the sand and say I would box the ears of anyone who crossed it and I could also say that I would box the person's ears if he or she did not cross it as I could say it was not really there in the first place. That would be an abrogation of natural justice.
Let us consider the question of ethos and the reluctance to provide a definition of it. We are talking about what has been described as a Roman Catholic ethos. Somebody looking at this issue from an objective point of view would observe certain phenomena in the way in which the Roman Catholic hierarchy behaves which are not in tune with the values of the Irish people. I would hope that a partnership could emerge in the education system which would include the remarkable and splendid work done by many religious members of many different orders. I am very concerned, however, about an institutional body being allowed to discriminate on the basis of an ethos which is not defined but which can be observed.
The Roman Catholic ethos does not originate in this country. It is an international phenomenon, not an expression of the Irish people. Neither is it something which has been democratically arrived at taking into account the views of Irish people. The Roman Catholic Church is an institution which has consistently boasted about its total lack of democracy. Why should a democracy seek to import such a regime of antidemocratic values? I am not saying anything here at which the Vatican would take offence. Its stated public position is that the Roman Catholic Church is not a democracy but an absolute monarchy which reserves the right to an absolute position and which is not susceptible to argument. It also believes itself to be infallible in certain circumstances. In dealing with some of the best theological minds in the church, in terms of intellectual discourse, Cardinal Ratzinger routinely silences and occasionally purports to excommunicate people. That is the ethos of the Catholic Church.
Cardinal O'Connor of New York is a senior figure in the church who has Irish connections. I clearly recall being part of the Southern Ireland Civil Rights Association and fighting for the rights of Roman Catholic people in Northern Ireland to be protected against discrimination in employment and housing long before that became a popular rallying cry. I recall Cardinal O'Connor's enthusiasm for this issue when it affected Roman Catholics in Northern Ireland. I also recall clearly how the Cardinal subsequently returned to New York and led a campaign to prevent the introduction of legislation in the state of New York which would protect gay people against discrimination in employment and housing. I can therefore assume it is part of the ethos of the Roman Catholic Church to sustain discrimination against a group to which I belong. How could this House possibly imagine I would support that? I do not. That very institution admits it is not democratic or answerable and that, when argument is raised, debate and dissension will be silenced. That is absolutely wrong in my view.
I listened with interest to Senator Fitzgerald's contribution. It seemed to me we might be getting close to a kind of lynch law. If a group of parents did not like a teacher's behaviour, attitude or lipstick colour, it could decide its ethos was not being properly communicated. I do not like the sound of that Nor do I like the notion that parents send their children to school to learn the essential values of life. That is not fair on teachers. I realise the same argument was made in the Archdiocese of Dublin on the sex education debate when a former Roman Catholic Archbishop of Dublin stated that children were sent to school to learn the ethical framework and that parents would provide the facts. To my mind, that is completely the wrong way round. Facts are inarguable and there is common agreement on them. Schools are funded through taxpayers' money and those facts which are inarguable should be presented to children in schools. It is the responsibility of a child's family, and of the wider community in certain circumstances, to create the ethical background which is arguable and about which a certain subtlety of view might exist.
I will tell you what I believe constitutes part of a school's ethos. Children pick up signals quickly and easily. These signals are not always rational or verbal. Young people pick up on attitudes and are extraordinarily good at detecting dishonesty. If a teacher has to be dishonest about his or her lifestyle or parrot rubbish which he or she patently does not believe, a child will pick up on that immediately. Anyone who does not believe that should read the short story An Encounter by James Joyce. In that story, on the surface the teacher is giving a lesson on Roman history. It is not a very good one because the teacher is obviously bored and tells the pupils to learn a certain number of pages. There is no sense of period or coherence. The children learn nothing but it is clear they pick up on the innate snobbery of the teacher. This attitude could be inculcated under this type of regime.
Senator Brendan Ryan referred to section 37(1)(a) and the capacity to give more favourable treatment on religion grounds to an employee, and also the matter of the Adelaide Hospital. This is an awkward and difficult area. I do not like the Protestant ethos any more than I like the Roman Catholic ethos. There should be a humane ethos, even though I am a member of the Church of Ireland, which, I would like to inform Senator Fitzgerald, purports to be the Catholic Church.
What is the definition of Catholic?
Exactly. We could be cheese paring over definitions all morning.
There is only one true church.
I know and I wish the Senator belonged to it. The only reason I could defend the matter of the Adelaide Hospital would be on a more practical ground than the Protestant ethos. We debated this in previous sessions when we looked at the question of the Adelaide Hospital. There are certain procedures which are legal in this country but which have been found by Catholic ethical committees to infringe upon Catholic ethics — for example, tubal ligation. Although they are legitimate and should be available, they are unavailable in most hospitals because of the operation of the Roman Catholic ethical committees.
The value of the Protestant ethos is that it respects the privacy and integrity of the individual relationship between the doctor and the patient and permits these procedures. I am not looking at the Protestant ethos as a sectarian issue but in terms of the practical entitlements of citizens. I would only support it on those grounds.
I wish to refer to Senator Brendan Ryan's amendments Nos. 33 and 84. Section 12 (5) requires an educational or training body to apply to the Minister for Health and Children, in the case of nurse training schools, and the Minister for Education and Science, in the case of teacher training colleges, to reserve places in a vocational training course offered by the body concerned. Either of these Ministers may, with the consent of the Minister for Justice, Equality and Law Reform, allow the institution to reserve places in such numbers as may seem reasonably necessary.
Senator Brendan Ryan's proposal to exercise the exclusion provided under the subsection is interesting. We have looked at it in detail, both as it relates to vocational training bodies and section 37(1). However, we have some reservations about the Senator's proposal which seems to place a considerable obligation on the applicant's institution to prepare statements and to explain its reasons publicly for seeking to utilise exclusions provided in sections 12 and 37(1). I am concerned these applications are inappropriate and not proportionate to the purpose for which they are intended, which is to ensure that individuals may exercise constitutional rights to maintain religious ethos in denominational institutions.
Senators are aware that the provisions of sections 12 and 37 are among the most controversial parts of this Bill. Our preference is to make the minimum number of alterations to this Bill because each slight change of emphasis is likely to dismay as many as it will please. I ask Senator Ryan to understand why we are trying to maintain this balance.
On amendments Nos. 79 to 84, inclusive, there was extensive debate on section 37(1) when the Employment Equality Bill, 1996, came before the House. Senator Norris revisited many of the issues which arose on Second Stage. He spoke about the dangers of religious denominations engaging in the victimisation of teachers under the protection of this section. On Second Stage some Senators alluded to the possibility of the referral of the Bill to the Supreme Court. The assumption on the part of Senators was that if the Bill was referred to the Supreme Court it was because of aspects of section 37. The Supreme Court devoted a considerable amount of attention to section 37 and held it to be in line with the provisions of the Constitution. We are reluctant to accept proposed amendments to this section because the Bill has been found to be unconstitutional in certain aspects and we are anxious to retain what has been found to be constitutional by the Supreme Court.
Senator O'Toole met with the Minister, Deputy O'Donoghue, to discuss his amendment No. 79. The Minister has considered the Senator's concerns. I am not certain of the impact of the acceptance of this amendment and I know Senator O'Toole wishes to change it on Report Stage. The Minister is seeking advice on the points raised by Senator O'Toole and he will follow up the matter to ascertain whether this amendment can be accepted. We will consult the Senator on Report Stage and take his proposed change into consideration.
Amendments Nos. 80, 81, 82 and 83 are not identical but their acceptance would have an identically adverse affect on the balance which has been carefully constructed as part of this section. The substitution of words such as "reasonable" or phrases such as "reasonably necessary" or "is reasonably" with definite terminology would alter the delicate balance which is such an important part of this section. It would be unwise to interfere with this balance and make the changes proposed by Senators. The best norm is reasonableness, which depends on the facts which arise in each case. Virtually all Irish law works on that basis.
We spent a great deal of time discussing the word "ethos". The meaning of "ethos" in the Bill is the dictionary definition. The majority of words in the Bill are used in their normal meaning. The Supreme Court accepted this approach and read one dictionary definition into its judgment:
It is true that ethos is a vague term and is nowhere defined in the Bill. Chambers' English Dictionary, gives, inter alia, the following meaning to the word, “the distinctive, habitual character and disposition of an individual group.”
That is the definition as supplied by the Supreme Court.
That is inter alia.
Another aspect of the Supreme Court decision may be of interest to Senators in terms of the balance we are trying to strike and the fact that this section was in compliance with the Constitution.
It is an extremely poor definition and hardly one an intelligent person would have chosen. It contains no notion of morality.
An Leas-Chathaoirleach
The Minister is in possession. The Senator will have another opportunity to contribute.
It may be of help to the Senator if I read from the judgment, which states:
It would therefore appear that it is constitutionally permissible to make distinctions or discriminations on grounds of religious profession, belief or status in so far, but only in so far, as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution. No serious criticisms can, however, be advanced against section 37(2).
I have the Supreme Court judgment to hand with regard to what we are debating today. Should we chance going back and changing all this again? The attack is being directed more against subsection (1), which entitles an institution to give more favourable treatment on the religion ground to an employee or prospective employee where it is reasonable to do so in order to maintain the religious ethos of the institution, or to take action which is reasonably necessary to prevent an employee or prospective employee from undermining the religious ethos of the institution. The use of the words "reasonable" and "reasonably necessary" implies that the test is to be an objective one and that the matter is to be resolved on a case by case basis.
The following is an important part of the judgment that might give Senators some understanding as to how the decision on this aspect was arrived at:
The final decision on what is reasonable or reasonably necessary to protect ethos will rest with the court and the court, in making its overall decision, will be conscious of the need to reconcile the various constitutional rights involved.
Senators can understand the position we are in as we have this judgment and that is the point of it.
I would like the Minister of State to deal with one issue which she has not dealt with anywhere. While I accept that it may take a bit more consideration, I would like a response on it from the Minister of State through her advisers. The Supreme Court judgment, just before the definition of ethos on page 56, refers to the fact that each religious grouping will define its own ethos. That is very important and I would like to hear the Minister of State say on the record that is her understanding of it because many people think that each school will determine its own ethos.
Senator Norris said it was not even an Irish thing but, leaving that argument aside for a moment, it is clear to me that it is the ethos of a religion and that every Catholic religious institution will have the same Catholic ethos. That could be hugely important for everybody in future and it would certainly be the basis for any case that I would push on the issue.
As I said when I spoke earlier, I do not have a difficulty with parental choice. Parents should be entitled to choose a certain complexion of school for their children. One of the big problems we find ourselves with, however, is that under the current rules and regulations it is not allowable or legal to establish a non-denominational school.
If the new Education Bill goes through the Oireachtas it will, at last, allow for non-denominational schools. At the moment our educational system at primary level is completely confessional. It either has to be denominational or multi-denominational, but cannot be non-denominational and that creates a problem.
Senator O'Meara referred to a point which was very much in my mind when I contributed earlier. The fundamentalist voice on the Pat Kenny Show that the Senator referred to actually runs a school, which we are paying for as taxpayers. She is defining the ethos of that school. I can assure the House that has led already to the kind of problems we are discussing today. I would not like to use it as an example, however, because the vast majority of school management boards and patrons are reasonable people.
I take the point the Minister of State made about my amendments. I will respond to that on Report Stage and will not push the amendments to a vote now, but one issue needs to be determined. According to the Supreme Court's judgment, an ethos is defined by the religious group, not by each school. There are 3,000 Roman Catholic primary schools and I take it they will all work from the same ethos. You cannot have a Catholic school in Dingle with a different ethos to one in Dublin. Let us be clear about this: we cannot have an a la carte approach to the ethos, however bad it is. It must be clearly understood that it has to do with the religious group in charge of the school and the religious complexion of the school. People cannot cherry pick from certain aspects of their religion in order to define differently the ethos between two schools that are 100 yards apart or within the same campus.
I would like the Minister of State to make it absolutely clear that ethos is something to do with the religious group and there is not a different ethos for every Catholic school, for instance.
Senator O'Toole has made an extremely valuable point — that ethos is centrally determined. It is not determined by any individual school, group or group of parents; it is centrally determined and the centre of the Roman Catholic Church is the Vatican. So we have elucidated that is where it is determined.
I would like to ask the Minister of State a simple question. On a number of occasions, because of her difficulty in dealing with the definition of ethos, she has said that, although we have not provided one, we are operating in the light of the Supreme Court judgment. The Supreme Court has provided a definition of ethos in its judgment. Is it the Minister of State's position that this definition provided by the Supreme Court is, thereby, tacitly included in the Bill? In other words, does the Bill operate in the light of the Supreme Court judgment to the point that the definition of ethos as given by the Supreme Court is the one which carries superior authority in interpreting the Bill?
If it is, it seems rather curious to me. The gentle persons of the Supreme Court are either extraordinarily stupid or very tactically aware because they have chosen a curious definition of ethos — one which is drained of all values. It says: "the distinctive habitual character and disposition of an individual group". It does not refer to values or any kind of moral equation which, historically, is the single defining characteristic of the word "ethics". When writing of ethics, Spinoza was not just talking about some kind of habitual characteristics of the human species, he was talking of values. Aristotle and Plato were dealing with values, not just the habitual character and disposition of a particular individual group.
However, if one does do that, I think one has the right to be far more worried. If we are talking, and it is perfectly clear from this discussion that we are, about the distinctive habitual character and disposition of a group — that group being the Roman Catholic Church, with opinions formed at the centre, in the Vatican — then we are surrendering a right to this extraterritorial group. If anything will give comfort to the Reverend Ian Paisley, this is it. The inclusion of this section in the Bill is increasingly visible as a stupid and retrograde step.
I have much sympathy for what Senator O'Toole said in relation to the understanding we should have that each school should not draw from an a la carte menu. That is reasonable, logical and sensible. Any legislation we introduce, taking full account of the constitutional requirements, should ensure there would not be that kind of openness or flexibility. In other words, each school board should not have the right to say their ethos is slightly different from the one down the road and, therefore, that they will take a different line. There should be a clearly understood approach to this in the general sense within Ireland.
Senator Norris said that the Roman Catholic ethos extends beyond Ireland. However, every ethos is also defined, coloured or influenced by local social dimensions. In view of this, there should be a clearly understood ethos regarding what the generality of schools in Ireland purport to represent as distinct from individual Catholic or Church of Ireland schools.
The judgment stated that the religious institution or denomination will state in each case what is its ethos. This goes some way towards the point made by Senator Norris. It is for the courts to make the religious institution or denomination state what is its ethos. In view of this, it is not for us as legislators to state the position definitively in the legislation. The onus is on the courts as the Supreme Court judgment makes clear.
It is a matter for the Judiciary to interpret the judgment. These cases will end with the Director of Equality Investigations or the courts. In its judgment, the Supreme Court paid very close attention to this section and found it to be constitutional.
Denominational education has always been an integral part of the education system. The overwhelming majority of our schools are denominational. If an employee is doing something to undermine the ethos of such an institution he or she will not have the protection of the Bill. However, I cannot emphasise strongly enough that all the circumstances of the case will have to be taken into account where they are in dispute. It will then be for the Director of Equality Investigations to take it from there.
Mr. Cregan
I am not a teacher and I have listened to the debate for the past hour. All speakers have said that provisions regarding ethos should not be included, yet they define their concept of ethos.
Nobody has said ethos should be excluded.
Mr. Cregan
They propose that it should be replaced by something else.
No, it should be defined more accurately.
An Leas-Chathaoirleach
Senator Cregan without interruption.
Mr. Cregan
I accept their concern that it should be defined more accurately. All speakers have offered a definition of "ethos".
No, I want it defined.
Senator Cregan has a right to have his views heard. That is what pluralism is about.
An Leas-Chathaoirleach
Senator Cregan without interruption.
Mr. Cregan
Points have been made about the Catholic Church, the Church of Ireland and other organisations. Since the foundation of the State we have been well served by them although there has been discrimination on all sides.
We have moved from debating section 12 to debating section 37, which I have never seen happen although I note that some of the amendments under consideration are relevant to both sections. I appreciate the spirit of the amendments because I wish to ensure that everybody in the workplace is well protected.
How is the difference in the ethos between, say, a Gaelscoil and an ordinary school to be defined? Over the past five years Gaelscoileanna have been thriving. While I disagree with them, that does not mean my views are right. I disagree with people benefiting from them. Does discrimination not arise in the case of applicants who fail to secure positions in Gaelscoileanna because their Irish may not be good enough? Is this not similar to the position taken by churches when they say that some people may not comply with the ethos of their schools?
Senator O'Toole was correct when he remarked that in some schools members of staff impose their own views. As Lord Mayor of Cork I visited every school in the city and was aware that in some schools teachers emphasised their own style which may have differed from the ethos of the school and of other schools under the same denomination. Who was I to question such schools if people were happy with the work of the principal? Parents have the right to send their children to schools of their choice.
Do differences between schools arise because of the teachers and, if so, have we any right to question them? The ethos of a Gaelscoil and an ordinary school differs because they use different languages. We do not object to that.
I am concerned with aspects of section 37, for example, the provisions regarding favourable treatment to an employee on religious grounds. It would be very serious if discrimination against employees were to arise because of this legislation. Could they be dismissed because of the provisions in this section?
While all speakers are against the provisions regarding ethos, none has made proposals on what should be put in their place. Do we propose that everybody should be educated in the same way or that they have the right to a certain education but that questions of ethos should not arise?
While I appreciate the importance of providing protection for children and teachers we sometimes go too far in ensuring that teachers are protected. I have been a Senator for many years. There are many teachers in this and the other House. They are inclined to talk down to people and we should be careful about our thinking in this area because it involves children. Senator Norris made good points about the protection of children and said that people who mistreat them are protected by organisations. The Senator is correct that the protection of children is most important. No religious organisation or other group should give the impression that they are not answerable. This is a serious aspect because many cases have emerged in recent years where that was a factor.
In terms of the issue of ethos, we should discuss what is best for all children and not just one group, such as gaelscoileanna. In the 1940s and 1950s, people with Irish got better jobs. However, that does not necessarily mean they were the best people for the jobs. This happened in society and it was discrimination on the basis of language. Nobody should suggest that the best people were in positions because they had Irish. Society was at fault in that regard but it involved ethos because one language competed with another.
It is important to clarify a number of aspects. No speaker in this and the previous debate opposed the concept of ethos. I made it clear that parents should have choice and that boards of management of schools were entitled to protect the ethos of their schools. This view has been shared by all speakers to date. We should be clear about the issue of parental choice and the ethos of schools. However, the problem is not knowing the ethos of schools. The position at present is similar to a fellow going up the field with the ball, looking at ten goal posts in front him and wondering into which one he should put the ball to score a goal.
The Minister of State made two comments of relevance to the issues I raised. I was pleased she said that, in considering these matters, all circumstances must be taken into consideration. This is close to the wording of my amendment and I look forward to its acceptance on Report Stage. However, it will be grossly unfair if the Minister of State refuses to answer a question. As a public representative, I want a straight answer to a direct question. Her answer and my interpretation may be wrong, but I will not be fobbed off. In the Minister of State's view, is the ethos of the school determined by the religious group or each board of management? I am entitled to an answer to this question.
The comments in the debate so far permit me to launch an attack on the Chief Rabbi, the Church of Ireland Primate, the head of the Muslim religion in Ireland or anybody else. I am sure I would not be challenged because I have listened to direct and personalised attacks on the Roman Catholic Church and its members. The Roman Catholic religion is the only one attacked in the House. It appears the fear my friends on the Opposition benches have only relates to the Roman Catholic ethos. I never hear them attacking the ethos of Jewish schools, Church of Ireland schools or others. However, they repeatedly attack the Roman Catholic ethos and I am sick, sore and tired of it.
Senator Norris on two occasions in the last couple of weeks has attacked Cardinal O'Connor. He said something about a group he wishes to defend. That same group took the Eucharist in their mouths, spat it out on the aisle of St. Patrick's and trampled on it. I ask Senator Norris if that was friendly. The group also chained themselves to the seats.
I do not know what group the Senator is talking about.
The Senator knows damn well what I am talking about. Do not give me that bombastic rubbish.
I heard Senator O'Toole say that he would like to see the religious out of all schools. He did not say there should be no religion in schools, but he said he would like to see the religious out of all schools.
I want that comment withdrawn immediately.
Did the Senator not say that? Did he say it or not?
I have never made such a statement and I want the Senator's comment withdrawn immediately.
Has the Senator never said he wanted to see the religious out of schools?
I believe in people being treated equally and honestly.
Did the Senator say he wanted to see the religious out of schools? The Senator said it to me in the Chamber one day.
I would like that withdrawn immediately.
I will not withdraw it because it is the truth. The Senator said it.
That is not correct.
What did the Senator say?
I welcome a pluralist society. I think the religious——
The Senator said he would be happy if all the religious were out of schools. The Senator said that publicly.
I am entitled to make a statement. I believe the religious have made a huge contribution and continue to do so. In a pluralist society, there is no space for intolerance.
That is right.
There is no space for people who say there is no room for people in schools.
That is correct. I agree wholeheartedly with the Senator. I remind the House of the work done by the religious in schools and hospitals. They built up the health services in this country.
It is tradition in the House that Members withdraw allegations if Senators say they did not make the comments concerned. It is time Senator Lydon followed the rules of the House.
An Leas-Chathaoirleach
I hope Senator Lydon accepts Senator O'Toole's clarification.
The clarification that he did not say he would like to see the religious out of schools?
I never said that. It goes against every fibre in my body and my belief in pluralism.
Perhaps I should produce people who heard the Senator say it.
There is no space for intolerance.
An Leas-Chathaoirleach
I ask Senator Lydon to withdraw the allegation.
I withdraw the allegation. I wish to put on record the work done by the Catholic Church in building up the health and school services. They would not be half as good as they are now but for the church. I am sick and tired of hearing it criticised day after day by my left wing friends in the Chamber who are not happy with the ethos. However, they never criticise any other religion. I have never heard them criticise the Jewish, Muslim or Church of Ireland religions.
The Senator has from time to time in his usual torrid way. I heard him do so the other day.
The Senator repeatedly attacks the Catholic religion because it will not bow to his particular ethos.
With regard to the heath service, people have an absolute right to preserve their ethos. I work with an organisation that has 43,000 employees of all religions. Yet, all our centres are Catholic in name and fact. This only means we do not providing abortion counselling. Everybody knows what the ethos means. Regarding Senator Cregan's point, we know the difference between a gaelscoil and an ordinary school. Everybody knows what the ethos means. The Senators are afraid of one particular ethos and I am sick, sore and tired of hearing them. I have no time for them.
I wish to refer to Senator Lydon's little outburst. It was done for the tactical reasons we have encountered before. Senator Lydon has an obsession with spitting. I remember an occasion when he launched a disgraceful outburst and then immediately said outside that he did not mean it. The Senator remembers saying that.
The Senator should not worry. He can quote whatever he wants.
The Senator says things in the House which are highly inflammatory for the consumption of his assumed electorate.
An Leas-Chathaoirleach
I ask the Senator to return to the Bill.
I wish to return to the matter the House was discussing.
An Leas-Chathaoirleach
I thank the Senator.
I wish to deal with the definition regarding the distinctual, habitual character. This suggests a period of time and that, therefore, it is historical and must be observed over time. Senator Lydon might be interested to know — he appears to have listened sporadically to the debate — that I pay tribute to the work of the teaching and nursing orders and nuns, brothers, priests, etc. I take that as a given.
I also wish to refer to Senator Cregan's point about ethos and the views of different churches. With which part of the ethos does the Senator wish the public to be afflicted? For example, in terms of the history of the Church of Ireland, would the Senator like the part of the ethos which promoted the penal laws against Roman Catholics? That is part of that church's ethos in a historical survey. Would the Senator like the part of the Roman Catholic Church which promoted the Inquisition? I will not withdraw one word I said about Cardinal O'Connor because people I know have suffered discrimination at the hands of that man.
I do not wish to see a situation where people can be dismissed simply because of their sexual orientation and there be no doubt that, provisions of this Bill permit that. It is clear that this is the ethos of the Roman Catholic Church; it has said it again and again. It could not be clearer about it. The church is not susceptible to question, argument or debate on the issue. I have no doubt Senator Lydon, who is highly qualified in religious terms, has informed himself by reading The Church and the Homosexual by Fr. McNeill, one of the most distinguished American theologians. Fr. McNeill was silenced because of the book.
We must examine what constitutes ethos. Senator Cregan expressed difficulty with this issue, inadvertently misrepresenting this side of the case, and it falls to us to make clear our precise difficulty. I dislike this entire section. However, if the majority of legislators feel it necessary to permit a particular group to discriminate on the basis of ethos, it is incumbent on us to define that ethos. We have been provided with a totally inadequate definition by the Supreme Court rather than the Government. Is this the definition which will stand in the Bill?
I compliment the Minister on her adroit footwork. She has presented the Supreme Court judgment as a defence of her case. It is not a defence. The fact that the Supreme Court decided this form of discrimination could be construed as being in line with the Constitution does not render it inviolable to argument or attack on moral, intellectual or historical grounds. There is a precedent which underlines my argument. The Supreme Court determined in its wisdom that sections 11 and 12 of the Offences Against the Persons Act, 1861, and the Labouchere amendment of 1885 were consonant with the Constitution. Within a short period the European Court of Human Rights found that these laws constituted a fundamental breach of human rights. This is a clear historical demonstration that the Supreme Court can find something is not in breach of, or consonant with, the provisions of the Constitution but can be in breach of international human rights. Merely saying the Supreme Court has found something to be consonant with the Constitution does not give it the masses moral and intellectual support. The Minister seems to think it is neutral.
It is left to us as legislators to determine the limits in these areas. I find the attitude pusillanimous. The Minister said the issue has already come before the Supreme Court and we know that the amended wording is likely not to offend the Constitution. This does not seem to be a reason for not improving it. We accept that as it stands it would pass a constitutional test, but is it the best we can do? The fact that it will technically pass such a test does not mean we should not have courage to address the issues or not try to push the parameters out a little further.
I do not wish to be offensive to the Roman Catholic Church or particular believers; I have no objection to being offensive to the Vatican as at present constituted — I hope I am, otherwise I would be failing in my duty as a human being. However, I indicated my enormous respect for the historical contribution of members of teaching orders, etc., in the Roman Catholic Church.
Historically, every Christian denomination approved of and justified slavery and used the Bible to promote the notion that it was a moral concept. Do we accept this as part of the ethos? At what point is there a historical cut off? This is one reason I am worried about the concept of ethos. If anybody feels it unlikely that somebody would be dismissed from a job — I have a particular axe to grind, namely, the issue of homosexuality - they should see "In and Out", a rather silly film which stars Kevin Kline and Tom Selleck. The film is located in America and concerns a student who wins an Oscar. His English teacher, who is wonderful, is dismissed from his post when the student says he is gay. This is how ethos operates as protected by the Bill. The example is fictional but I could give innumerable factual bases for my argument.
A question I asked last week has remained unanswered, namely, whether the Minister can satisfy me that Eileen Flynn would not be discriminated against and dismissed from her job under this Bill which is intended to protect people from discrimination. This is a classic example of discrimination against a teacher who was held to offend against the ethos because she was being a good mother to a family outside the sacramental form of marriage. Simultaneously, the same institution was routinely and in a widespread manner protecting and shielding paedophiles. Is this the ethos we are protecting?
I have no wish to curtail debate. However, we have discussed this amendment, which is resumed from last week, for more than an hour and a half.
The Senator asserted that in his judgment the Bill would facilitate discrimination against people on the basis of sexual orientation. I refute this suggestion, if that is what he said. The Bill does not facilitate such discrimination——
I wish to confirm that is what I said.
The Senator is refusing to acknowledge that the Bill establishes a Director of Equality Investigations and facilitates an appellant who is aggrieved by what they perceive to be discrimination on grounds of sexual orientation or any of the nine specified grounds. If they are dissatisfied they or the director can refer the matter to the Labour Court and the Circuit Court. It is not true to say the Bill facilitates in any section, including section 37, discrimination on any of the nine specified grounds. The Bill definitely and deliberately establishes structures that counter any attempt by an employer in such circumstances and gives the appellant a very detailed and wide ranging set of appeal procedures in the event of a grievance.
I like to think I am reasonably tolerable — I have my view and everybody else has theirs. Senator Norris strongly holds the view that a prospective employee should have the right to adhere to his or her set of values in a place of employment, even at the risk of the values subscribed to by that institution. Maybe I am wrong; maybe I am misinterpreting the Senator but if I am interpreting him correctly, then the converse is that people with one view should have the right to attack people with opposing views. When the Minister talks about a delicate balance and refers to its constitutional interpretation surely these are the aspirations — sometimes conflicting but there is a plurality of them there — that the legislation under the guidance of the Constitution is trying to meet.
I accept Senator Fitzgerald's reasonable view but the Bill does facilitate discrimination. He is also correct when he says there is a lengthy, cumbersome and awkward method of appeal. But in the first instance discrimination is enshrined in the Bill and nobody can contradict me. I ask Senator Fitzgerald to consider the human cost involved in this area when somebody is discriminated against in a manner which is sanctioned by the law and then has to appeal it. My experience of 30 years tells me that it is a rare spirit that will take that kind of appeal in those circumstances.
Let me tell you something which happened during the period of the Eileen Flynn case. I shrink from continually mentioning her as I do not have her permission to do so. In this case we have a private individual, a citizen, who has now become synonymous with discrimination. Every time this material comes up she will be quoted and her case further raised. That is another reason why people will not wish to go through appeals procedures all the time, although it is a small safeguard.
I remember discussing this issue with friends and colleagues at the time and was horrified by their attitude to Eileen Flynn. Some people said not to worry about her and her partner as they were a pair of rabid republicans. That was the attitude that I got from civilised professional people. That in some accidental way justice had been done because she was fired by a conservative institution, but it all panned out for the best because secretly they were Provos. It is precisely to protect people from this kind of discrimination that I want this Bill altered.
This issue is very important and is at the heart of the Bill. It is the way it will operate in practice. There seems to be a considerable amount of questioning to try to define ethos. Some Senators are being a little disingenuous because we all know what is meant by the term "ethos". If I go to Israel I expect to find a Jewish ethos and I do not object to that. I think all I would seek is a tolerance for Christian worship and a spirit of generosity that, unfortunately, is not shown in the North. Lack of tolerance and respect for other people's beliefs is part of the reason for the difficulties in the North.
Sectarian schooling in the North is the reason for it.
I concur with Senator Lydon and others in recognising that this State owes a tremendous debt of gratitude to the Catholic Church and its various religious practitioners who over past decades have given unselfishly of their time and dedicated their lives to the betterment of Irish society by giving an education to people. But for their generosity of spirit many people, including myself, would not have had the opportunity to have our desired education.
I am a committed republican and the basic ethos of republicanism is equal opportunity for people. We should acknowledge that the first key to equal opportunity has to be access to an education. It is a pity if anything said here would detract, even in a small measure, from the tremendous contribution which has been made over the past decades and to which the economic well-being that we all enjoy today owes so much to. Equally, if I visit Iran or other middle eastern states I would expect an Islamic ethos. I do not object to this either.
You might if you experienced it. Christian practices are not tolerated in Iraq.
Senator Norris interrupted other speakers all morning. I do not interrupt people and I ask you to afford me the same privilege. I respect the views you and other Senators expounded this morning. Many of you represent a minority view and it is important that it is heard. Equally, it is important that the views of the minority do not override the views of the majority. Ninety-five per cent of our population is Catholic and almost all the population has Christian beliefs. I see nothing wrong in having a Christian ethos in our education system which preserves the values which have served us so well over the centuries. This does not allow for any discrimination or any prejudices against other people's beliefs or opportunities. I see that happening around me.
Senator Norris has mentioned the Eileen Flynn case on numerous occasions. I have some knowledge of the case. Much of what you said would lead me to believe that most of the premise for your own view of it is the media's interpretation of the event at the time. I lived in the town and was well aware of what was going on. The Holy Faith Order in charge of the school was under considerable pressure to address the issue because parents of pupils were unhappy with the situation. Whether you agree or not, that was the situation. In 1979 RTÉ reporters covered the local elections and because of the notoriety of the town over the issue they decided to refer to it in their report. Having examined the background and inquired locally, they said they were very disappointed and embarrassed by the failure of their colleagues to give an accurate and fair report of the unfortunate episode. As a consequence they did not proceed with the report. If you knew all the facts the situation might be interpreted differently.
There should not be room for discrimination in any element of society. It is up to us as legislators, and those involved in politics at local and national level, to try to eradicate discrimination. In doing so it is necessary that we do not lose some of the values and positive influences that we have got from society and through all the Churches. I am a firm believer that all the Churches are a great force for good in society and anything we say should be measured against that.
I wonder if we live on the same planet. I send my children to denominational schools because I choose to do so.
Senator Norris does not agree with this section. Neither I nor Senator O'Toole have ever taken exception to the idea of schools having a denominational ethos. I value religion deeply in my personal life. What hurts me is that when someone like Senator Lydon goes off on a rant he adds to the problem of persuading modern young people that religion is not something associated with intolerance, hostility and bigotry. If one is trying to persuade young people that there is something worthwhile in religious values, one does not do so by turning on those who annoy one, accusing them of things they never said, imputing motives to them they never had or attributing values to them they never articulated.
I have no problems with the religious ethos. I have problems with fuzzy, poorly drafted legislation which aspires to do one thing and does not offend the Constitution on that principle. However, it may give individuals the capacity to abuse good intentions for bad reasons. They may be able to treat people badly and use religion as an excuse. That does not sustain a religious ethos but does the opposite, confirming the view of an increasing section of society that those who practice religion do so for reasons other than their own good or the good of society. That is what happens when one abuses terms like "religious ethos" and why I wish those terms were defined in the terms used when people speak generously about religion or religious ethos.
Nobody on this side of the House is using the terms mentioned by the opposite side of the House. Perhaps somebody outside the House uses them. If so, they should be confronted outside the House. Nobody here is complaining about the religious in education.
Or objecting to religious ethos.
Or objecting to ethos. The Roman Catholic Church, because it used to be the dominant religion, has a tactic it uses whenever one suggests that its behaviour is less than perfect. It accuses one of attacking religion. I do not think the clergy are all saints, nor do I think that of teachers. However, the whole world is entitled to criticise teachers and I hope they continue to do so. Similarly, the whole world is entitled to judge Christians by the standards Christians expect others to live by. People must be given the correct and justified right to create a religious ethos, but they cannot be allowed to use religious values to do other things. This discussion is not about religion or ethos but about the capacity to abuse power.
This will be my last contribution, no matter what happens.
The Senator may be provoked.
I doubt it. The definition's reference to "habitual" and "distinctive" means this must be viewed historically. There is no religious discrimination that can be exonerated in this regard. For example, the Church of Ireland supported the Penal Laws. The habitual observed behaviour of certain institutions over a period can be negative. We are not talking about the Gospel of Jesus Christ but the behaviour of institutions over a period. I doubt that any Member would be arrogant enough to defend that record.
That is an arrogant comment.
Senator Walsh referred to Iran. He should be happy, as he said that the Islam ethic——
On a point of information, that is not what I said. I said that if I went to Iran I would not expect to find anything other than an Islamic ethos.
We can look at the record. I was given the impression that Senator Walsh would be quite happy with that.
No.
Acting Chairman
Senator Norris without interruption.
I do not mind being interrupted. What is sauce for the goose is sauce for the gander, though I am not sure if I am a goose or a gander. I have been to Iran and I know about their tolerance. They explained their tolerance when they took me to Isfahan, where there is a Christian cathedral. Christians were produced for our edification and all were wearing the chador.
On a point of order, are we being led on a global excursion?
I am replying to an instructive analogy drawn by Senator Fitzgerald's party colleague about Iran. I am following in the footsteps of the explorer, a Soldier of Destiny who has soldiered a little beyond his brief. It is a reasonable point. I asked if those Christians had to dress that way and was told that they had to obey Islamic law. I was told that I would not believe the tolerance of the Iranians because the Christians were allowed to wear their own clothes in the privacy of their own houses. I do not regard that as particularly tolerant.
I accept that I have said harsh things about the Vatican and will continue to do so. I have also paid tribute on many occasions to the work done by the Church. There may appear to be a concentration on the work of the Catholic Church, but I do not know why I must repeat this.
Acting Chairman
The Senator does not have to repeat it.
I am now making a different point. We view the Roman Catholic Church in this way because 95 per cent of the people are nominal members of that church and the overwhelming number of schools in the State are involved with it. I have been and continue to be critical of the Anglican Church. If it were in a more powerful and responsible position in the State, my criticisms would be more trenchant and frequent. However, it would not be a very good political judgment to concentrate on the periphery rather than where the power lies — the centre. For that reason my remarks have concentrated on the Roman Catholic Church.
I accept Senator Walsh's remarks on the Eileen Flynn case. I presume he has greater local knowledge while I base my view on the media reports. Those reports also referred to the judgment in the case that resulted from this matter, which worried me greatly. I am entitled therefore to express a view as a result without local knowledge, although I acknowledge its value. I do not think I need a minute personal involvement in every case in order to speak on the principle, particularly when judgments are reported in such detail. Senator Walsh knows more about the individual circumstances but I do not think that invalidates my view.
I do not intend to answer Senator O'Toole with a yes or no. I do not intend to accept his invitation to interpret the Supreme Court's judgment or the Bill. Those interpretations will be made case by case by the Director of Equality Investigations, the Labour Court and the Circuit Court. Senators O'Toole and Norris asked who would define "ethos" and where accountability lay: it is in those institutions.
Senator Norris was concerned about the comfort I was taking from the fact that the Supreme Court was happy with this section. My predecessor and his officials met many groups in relation about this matter — IBEC, ICTU, the three teachers unions, the INTO, ASTI and the TUI, representatives of the Catholic Church and Church of Ireland hierarchies and CORI. There was wide consultation before the wording was found and it was supported by the Oireachtas and the Supreme Court. This is the same wording.
Sitting suspended at 1 p.m. and resumed at 2 p.m.
Amendment, by leave, withdrawn.
Amendment No. 34 not moved.
Question proposed: "That section 12 stand part of the Bill."
On section 12 I am taking the other side of the argument. I would be concerned about the prohibition in section 12 on discrimination against persons by refusing them, or omitting to afford them access to, any such course or facility, notwithstanding the escape clauses in subsections (4) and (5). How would this affect a religious seminary? How is that excluded from the provisions of the Bill to prohibit discrimination in terms of admission to a religious seminary? I cannot see a seminary as anything other than a place which provides a course of vocational training as it is defined here. I am concerned ridiculous positions would arise in areas which quite manifestly have a specific religious ethos.
Senator Ryan raises a good point; there is no specific mention of a seminary. The issue would depend on the interpretation a court would place on vocational training. A court might describe a seminary as such but it is not for me to anticipate what the court might find. Senator Ryan is aware that one of the reasons we have courts is to ensure the law is interpreted properly. That is why courts have been responsible for building up so much law by means of legal precedent over the years. I wish I could give a more definitive reply but that is the best I can do in the circumstances and I trust that will be satisfactory.
I thought I was mistaken because it is such an extraordinary omission. It is one area where I fully subscribe to people's right to choose who they would wish to choose. It appears it is possible that legislation would suggest that a seminary for the Roman Catholic priesthood cannot refuse to admit women. I would be in favour of the idea but I am not sure it is the role of the national secular Legislature to determine who should enter exclusively religious training institutions. Someone may have overlooked this and it is well worth consideration before the Bill is enacted. We should not be in a position where someone brings a religious seminary to the Supreme Court to sort out whether they can refuse to admit people on one or other of the grounds listed in this Bill.
Vocational training is defined in this legislation and it is clear it refers to an occupational activity. Legislation cannot be exhaustive. That is why courts can interpret legislation. I do not think the scenario Senator Ryan paints is even remotely likely. The question of exemption is contained in the 1977 legislation which has never been challenged in 21 years, so I do not anticipate this would arise now. The legislation goes as far as it can.
We are now at section 12, amendment No. 34 of the Bill and there are almost 200 amendments. It seems all the points raised will be superfluous in our lifetime unless we proceed more speedily with the legislation. I acknowledge the auspicious contributions which are being made and I realise it is with the intent of being helpful in examining the legislation. This is how it should be. I do, however, ask that we try to be more expeditious in terms of argument by making the argument once followed by my reply. Otherwise it will be like watching Steffi Graf, who never misses a return.
Question put and agreed to.
NEW SECTION.
Amendment No. 35 is out of order.
Amendment No. 35 not moved.
Section 13 agreed to.
SECTION 14.
I move amendment No. 36:
In page 19, line 1, after "who" to insert "does or".
This arises from a comment made by the Supreme Court where it was described as strange and anomalous that it was an offence to get someone else to carry out the discrimination but not to carry it out yourself. This amendment responds to that criticism and redresses it.
In general the Bill provides civil law protection and compensation to individuals in relation to discrimination in employment. It is not possible under the terms of this Bill to take a case on the grounds of discrimination against a person at one remove from the act of discrimination. Without section 14 those who procure or attempt to procure anything constituting victimisation or discrimination would be free to engage in such activities without fear of being held accountable. While the Bill provides a civil remedy in cases of discrimination, where such a remedy does not recommend itself for obvious practical reasons, an alternative penalty, in this case provision for a criminal offence, is provided. I hope the Senator finds my explanation satisfactory and withdraws the amendment.
I sympathise with the Minister. I know he was otherwise occupied in a worthwhile exercise this morning. Having listened to the Minister and the Minister of State explain why it is important to be heedful of the judgment of the Supreme Court we now, for reasons which are not explained, hear the extraordinary conclusion of the Supreme Court that it is strange and anomalous that the chief perpetrator of an act is guilty of nothing. Senator O'Meara has proposed a very simple amendment to make the chief perpetrator of an act guilty of an offence in line with the expressed view of the Supreme Court but the Minister will not accept it. This is not the way to speed up debate. Even the opinion of the Supreme Court cannot move the Minister to accept a simple and practical amendment to take from the Bill a strange and anomalous formulation. It is the Minister's refusal to accept this amendment which is slowing down the Committee Stage of this Bill.
I am responsible for the large number of amendments but they were not tabled in order to prolong the debate unreasonably. This is important legislation and my amendments are put down in a constructive spirit. I wish to expedite the passage of the Bill as much as the Minister but I would like him to respond to Senator Ryan's point.
I acknowledge the importance of the points raised by Senators O'Meara and Ryan. It is incumbent on me to point out that this legislation is civil and not criminal. The sanctions to cover every possible breach which one would expect to find in criminal legislation are not provided for. The Supreme Court, in its judgment on the Employment Equality Bill, 1996, said that it was strange and anomalous that the chief perpetrator of an act is guilty of nothing while the person who procures or attempts to procure the deed is to be arraigned. The court went on, interestingly, to say that just because a provision is strange or anomalous it is not, necessarily, repugnant to the Constitution. The court gave the example that it is a civil wrong to trespass on another's land while a conspiracy to commit a trespass on another's land is a criminal offence. I would liken the confusion which arises in this matter to the sign which is commonly seen on gates saying that trespassers will be prosecuted. Trespassers, of course, cannot be prosecuted. I make my argument in those terms. It is not possible, because this is civil legislation, to incorporate sanctions in respect of each and every breach. If this were criminal legislation one would expect that, but the Supreme Court went on to conclude that section 14 was not repugnant to the Constitution.
I am not suggesting that the section is unconstitutional. I am simply saying that the Supreme Court has said that it is strange and anomalous. I am trying to be helpful and I will not press the amendment.
The only way I can accommodate the Senators' wishes is to have a sanction in respect of every breach in the legislation. In a civil bill that is not possible. The alternative is to remove the entire section and have no sanction in respect of these matters. Everyone would agree that this would be undesirable. Compromise, therefore, is the better part of valour and this is the only compromise which I can offer.
Amendment, by leave, withdrawn
Sections 14 agreed to.
Section 15 agreed to.
SECTION 16.
Amendments Nos. 37, 38 and 69 to 76 inclusive, are related and may be discussed together by agreement.
I move amendment No. 37:
In page 20, lines 9 to 13, to delete subsection (3) and substitute the following new subsection:
"(3) For the purposes of this Act an employer shall do all that is reasonable to accommodate the needs of a person with a disability. A person with a disability shall not be regarded otherwise than as fully competent to undertake any duties, if with the benefit of reasonable accommodation that person would be so competent.".
The amendments have to do with the nub of the Supreme Court decision. Because the Supreme Court was asked to consider the constitutionality of the entire Bill and not just sections of it, it astonished everybody by ruling that the Bill was unconstitutional because the burden placed on employers not to discriminate against people with disability amounted to an infringement on their property rights. The response of the Government has been to dilute the provisions on disability by the peculiar phrase "minimal cost". It is now almost lawful to discriminate against people. There are other ways of dealing with this issue. Provision could have been made for adjudication by a body such as the National Rehabilitation Board. Opposition Senators cannot propose amendments which would impose a charge on the Exchequer. Since the National Rehabilitation Board is funded by the State such an amendment cannot be proposed. There is a position between burdening employers with costs which the Supreme Court have ruled to be unfair and saying there should be no costs at all. The Supreme Court judgment contains some barbed comments concerning the definition of disability in the Bill and the peculiar drafting of the original Bill. These amendments seek a middle road between the old Bill which was ruled unconstitutional and a situation where anything more than minimal costs — a phrase which has caused considerable bad feeling among members of the Irish Council for People with Disabilities — would be ruled out. There is a range of possible intermediate positions and the Government could have found one of those instead of the complete capitulation we have here.
Amendment No. 38 is a technical amendment intended to ensure that people do not inadvertently slip through the net. Section 16(3) states:
For the purposes of this Act, but without prejudice to section 35(4), a person who has a disability shall not be regarded otherwise than as fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, that person would be so fully competent or capable.
My advice is that this could be interpreted to mean that a person suffering from disability would only be covered by this section if these facilities were necessary. However, there are persons with disabilities who would not require this kind of assistance for certain jobs. They may fall through the loophole.
Amendment No. 69 removes the words "a particular" and substitutes "the same or an increased". I am interested in the Minister's response to this amendment. The phrase "or an increased" is rather optimistic on the part of those lobbying me. Amendment No. 72 is the nub of the situation. It deals with the penny pinching view that, as the Bill stands, it appears to exonerate an employer if there is any expense at all. Section 35(4)(b) indicates that the Bill shall not apply if there is a greater than nominal cost to the employer. The word "nominal" means nothing. In other words, if there is any cost at all, the employer can get away with saying "There is an increased cost so I do not have to do anything." There is always a cost — there is literally no such thing as a free lunch in legislation such as this. We must accept that there will be some cost other than a nominal cost. The amendment proposes to use the word "reasonable" which has found favour in the legislation. It proposes that section 35(4) should read:
(4) Nothing in this Part or Part II applies . . . . (if)
(a) that person needs special treatment of facilities in order to satisfactorily take part in the selection process or to undertake that employment, and,
(b) provision of that special treatment or facilities goes beyond what a reasonable employer would be expected to provide for that person by way of reasonable accommodation for the needs of that person, and
(c) there is clear evidence that the provision of that treatment or those facilities would involve significantly increased cost to the employer.
This is the real test — whether facilities which must be provided are over and beyond what a reasonable employer would be expected to provide and, critically, that clear evidence is provided that the provision of that treatment would involve significantly increased costs to the employer.
If we are talking about assisting the disadvantaged and the disabled and putting an end to discrimination, it should not be sufficient for an employer to say "There is a cost other than nominal." Since Deputy Albert Reynolds' libel case we know that a nominal award is one penny. Essentially the effect of this Bill is that if employers can show that the provision of facilities for a disabled person would cost more than one penny, they do not have to provide them. This draws the teeth of the legislation as far as the disabled are concerned.
My amendment does not say that in all circumstance, however unrealistic, an employer must be compelled to employ someone with a disability. That would be foolish. We are dealing with employers who have to live in the real market-place and have to generate a profit. One cannot arbitrarily impose such strict regulations that one extinguishes the employment entirely. I hope the Minister will agree that what is suggested is reasonable. Paragraph (c) stipulates the need for evidence. In other words, it is not enough to say "It would cost too much." As the legislation stands this is all an employer has to say. The evidence should demonstrate that there would be significantly increased cost to the employer.
These amendments focus on one of the most important elements of the Bill. The Government's minimalist response to the Supreme Court judgment has, naturally, led to concern among groups representing the disabled. In effect, the Government's lack of response to the judgment on the rights of the disabled to participate in the workforce has rendered the Bill almost useless to them. This is an anti-discrimination Bill. However, because of the lack of response to the Supreme Court's judgment, it has taken away the rights of disabled people.
This morning I referred to the irony that while the controversy had been generated by the religious ethos sections of the Bill, this should be one of the sections which rendered the Bill unconstitutional. In so doing, it has caused a major problem. If the Bill is passed unamended it cannot be said to be an Employment Equality Bill as the rights of the disabled to equality of employment will not be included.
The Supreme Court judgment has created a situation in which no employer has any obligation to employ a disabled person. The Bill must be amended to change that situation. I would like to bring the Minister's attention to an editorial in the Irish Law Times of June 1997 which states:
The Court stated that it was permissible to impose cost burdens on employers where environmental pollution was caused by them or where the “health and safety” of employees was a risk. Unfortunately, the Court did not define the terms “health and safety”, but it clearly considered that the disability issue did not fall into this category.
The Court also at one point in its judgment indicated that it did not consider any European dimension was relevant to the case. Clearly, the Court had not referred to the 1989 Directive on the minimum safety and health requirement for the workplace, 89/654/EEC, implemented in Irish law by the Safety, Health and Welfare at Work (General Application) Regulations 1993, made pursuant to the Safety, Health and Welfare at Work Act, 1989. In dealing with both old and new places of work, the 1989 Directive states:
`Workplaces must be organised to take account of handicapped workers, if necessary. This provision applies in particular to the doors, passsageways, staircases, showers, washbasins, lavatories and workstations used or occupied directly by handicapped persons. ' While the reference to `handicapped' workers may jar, the 1989 Directive clearly regards disability as a health and safety issue.
Indeed, a wide interpretation of the terms `health and safety' is consistent with the decision of the Court of Justice in November last year in the Working Time Directive case United Kingdom v Council. In interpreting `health and safety' in Article 118a of the EC Treaty, the Court adopted the World Health Organisation's definition of health as: `a state of complete physical, mental and social well being [which] does not merely consist of an absence of disease or infirmity. ' The Court thus held that the Working Time Directive could be described as a health and safety Directive within Article 118a. It might be suggested that similar arguments apply in the context of the 1996 Bill.
What a pity we are landed with this situation. It cannot be beyond the powers of the Minister and his Department to amend the Bill so that it protects disabled people's rights, something it does not do at the moment.
What is meant by costs incurred to employers? It conjures up a situation of employers being landed with bills for thousands of pounds for employing disabled people. That is not the case. The National Economic and Social Forum examined the equality provisions of Partnership 2000 and issued a report on it. The chairwoman, Maureen Gaffney, recommended the Government underwrite the costs involved in providing reasonable accommodation for people with disabilities in the workplace. She pointed out a balance must be achieved between the constitutional rights of property and social justice. This Bill states employers must meet the cost of employing a suitable person with disability provided the cost is nominal. In not defining nominal or, as Senator Norris pointed out, if nominal means nothing, the matter is nonsensical. The Bill must define nominal costs.
The National Economic and Social Forum estimated that there were at most 150,000 people in the State with disabilities. It is not a question of huge costs. Based on the US experience of accommodating people with disabilities in the workplace, 19 per cent could be accommodated at little or no cost to the employer, another 50 per cent could be accommodated at a cost ranging from a few pounds to a maximum of £350, which cannot be seen as excessive. In about 3 per cent of cases, the cost would be greater than £3,000. These cases include the most disabled potential employees, according to the report. The remainder with disabilities are unlikely to be able to work.
Long-term unemployment is rife among people with disabilities. They are not getting work and not only does this Bill not help them, but in its current form it will also actively create a situation where fewer disabled people will be employed. It defeats the purpose of the Bill. I am extremely disappointed by the Government's reaction to the Supreme Court judgment on this section. In the spirit of the legislation, it is essential that some way be found to solve the problems the Supreme Court found with this section while ensuring that the rights of people with a disability to enter the world of work, to be employed and to have the same rights as everyone else are met.
Mr. Cregan
My point is not only relevant to this Bill but also to other Departments, especially the Department of Social, Community and Family Affairs. There is no reason why there cannot be incentives to employ disabled people. The obligation to employ them should not be put on employers. If an employer does not have to do something, he will not do it because costs are high. Will the Minister discuss with the Departments of Social, Community and Family Affairs and Health and Children the creation of opportunities for more disabled people to be employed? Many employers would be delighted to employ disabled people, provided the cost was not enormous and the legislation governing this area did not discourage employers from employing them. I know many employers who would like to have disabled people work for them. In many cases a disabled person is a better employee because they are more consistent in coming to work. Will the Minister examine, in consultation with other Departments, how opportunities can be created for employers to employ disabled people and for the State to cover any additional costs incurred? This will need the co-operation of the Departments of Enterprise, Trade and Employment, Social, Community and Family Affairs and Health and Children. The matter should be examined and discussed on Report Stage.
It is only right and proper that this be done because I do not believe we should discuss the status of disabled people as we are discussing it now. It gives the impression employers do not want to employ disabled people. However, the regulations as they are set out will frighten people. As an employer, I would like to have disabled people work for me. Unfortunately, for me to provide for that would be very costly. I do not see why the Government cannot cover such a cost if it is as low as £300. Perhaps it could be shared between the Government and employers. However, something of that nature should be created and, if it were, it would make the amendments tabled on the matter unnecessary.
While I agree with my colleagues on this side of the House, we seem to be debating this matter as if people were born with disabilities. Many of those employed may develop disabilities. How will this Bill protect them? Some disabilities may arise because the people are getting older. Someone who is not as mobile as they were when they were younger may be told they are no longer suitable for the area in which they are employed. Is there any protection for people who acquire their disability when employed?
There is also a tremendous problem with ageism in this country. I thought it was illegal to have age limits on job advertisements but many people have told me it is almost impossible to obtain employment if one is over 55.
I understand the thrust of the amendments. Senator Cregan is correct in stating that encouragement to employ disabled people rather than compulsion might be the more appropriate answer. The issues raised by the Supreme Court have wide ranging implications and a balanced and sensible approach must be taken. I agree with disabled people being employed and we all agree it is a good approach. However, employers might view the Bill as adopting an approach of compulsion rather than encouragement.
In my area of west Cork, in Bantry, almost 100 people are involved in a co-action group. Employers and the local authority try to accommodate disabled people. The Minister announced in November the establishment of a national disability authority and this is a move in the right direction. He has also proposed to introduce a disability Bill and has spoken with the Commission on the Status of People with Disabilities on the matter.
I realise that Senators were fair and well intentioned in their approach to this issue. Senator Cregan's suggestion would perhaps best resolve the issues which arise as a result of the Supreme Court decision. I have spoken to architects and engineers about the modernisation of buildings in the private, public and semi-State sectors. In recent years there has been a general move towards accommodating disabled people, although I accept that may not be happening as fast as we would like but we are moving in the right direction. The current Government wants to ensure that people with disabilities are accommodated. That was also the aim of the previous Government. Employers should be encouraged rather than compelled to accommodate people with disabilities. For that reason I do not support the amendments.
I thank Senators for a very informed debate thus far on the disability issue.
I would like to recall the Supreme Court judgment without elaborating too much on it. In its judgment last year, the Supreme Court held that the provisions contained in sections 16(3) and 35(4) of the Employment Equality Bill, 1996, failed to strike a constitutionally acceptable balance between the principles of social justice and the property rights of employers. Section 16 (3) placed an obligation on an employer to provide a reasonable accommodation to a person with a disability. Section 35 (4) set limits to the extent of the reasonable accommodation an employer was required to provide having regard to the concept of "undue hardship" as defined in the Bill. These provisions were held, in those circumstances, to be repugnant to the Constitution.
The implication of the judgment for this Bill is that an employer or prospective employer may be obliged, by law, to provide reasonable accommodation to an employee with a disability but the employer cannot be obliged to bear the costs of providing such reasonable accommodation. As a result, this Bill requires an employer to provide special treatment and facilities for a person with a disability provided that the costs of such provisions to the employer are only nominal. There may well be an opportunity to revisit the question of statutory provision for reasonable accommodation in the context of specific disabilities legislation, the enactment of which was one of the recommendations contained in the report of the Commission on the Status of People with Disabilities.
In an amendment to section 35, Senators Norris and Connor proposed the provision of special treatment and facilities by way of reasonable accommodation unless there was clear evidence that such provision involved "significantly increased costs to the employer". Senator Brendan Ryan, in a separate amendment, suggested the substitution at section 35(4)(b) of "a cost other than costs of a nominal nature" by "an excessive cost". Having sought and considered the most thorough legal advice in this matter, I am firmly of the view that the proposed amendments, if accepted, might lead to serious difficulties with regard to constitutionality and would lead this Bill to a similar fate as that suffered by the Employment Equality Bill, 1996.
Through other amendments, Senators have considerably broadened the scope of the debate by the introduction of the issue of State supports and grants as well as the provision of tax incentives for employers in respect of special treatment or facilities for employees with disabilities. I do not believe the Bill is the appropriate way in which to consider these broad issues of public policy, particularly those relating to taxation in respect of just one of the grounds covered by the Bill. The question of reasonable accommodation has received more attention than any other provision in this legislation. The changes I made in the Bill to allow for the retention of the disability ground are as far as I can reasonably go at the moment. In my view, there is very little room for further manoeuvre.
Some of the amendments proposed by Senators deal with the issue of nominal cost. The word "nominal" has caused a certain amount of concern on the part of some people interested in the question of employment of people with disabilities. During the Second Stage debate, Senator Norris asked how "nominal" might be defined and offered one definition of it. There was a very famous law lord in Britain who once asked when a man might be considered to be drunk. He suggested a man was drunk when he was lying prostrate on the floor and fell off.
What an appalling vista.
I would suggest that the definition of "nominal" would not be the same for every employer or enterprise. The term, as used in the Bill, may be interpreted in a relative sense. In other words, what may be regarded as nominal by a large enterprise employing thousands of people will not be the same as that regarded as nominal by a small business with only two or three employees.
In addition to Senators' amendments and eloquent contributions, I have received representations on this topic from many quarters. I am exploring the possibility of doing something which would go some way towards meeting the aspirations of Senators and other interested parties who wish to see the concept of reasonable accommodation being given greater emphasis in the legislation.
Senators will be aware, having discussed employment equality legislation in the House before and having seen the fate which befell it, that the views of the Supreme Court must be taken into account. Nevertheless, in the light of what has been said and the broad thrust of the suggestions which have been made on both sides of the House, I undertake to re-examine the issue with specific reference to this particular provision. I hope that by Report Stage I will be in a position to respond in greater detail on the matter.
I am aware of the concerns expressed on behalf of those with disabilities and I will look at the issue in the light of representations. Some of those with disabilities, and their advocates, have serious concerns about the provisions of section 35(1) and see it as an indication to employers to pay employees with disabilities at a lesser rate than their able bodied colleagues.
This was never the intention. On the proposed amendment to section 35(1), some people with disabilities, perhaps the majority of them with learning disabilities, can and do avail of employment opportunities which are extremely important elements in their lives, although they may not have the same level of capacity as others. I would not like to see that kind of employment opportunity denied to people with disabilities just because of employers' fears of equality claims.
However, in view of the concerns expressed on this subsection, I will look at the provision again and come back to Senators on Report Stage. I have dealt comprehensively with the amendments proposed by Senators. We are dealing with an essential provision in the legislation but we must realise we are constrained, unfortunately in relation to this legislation, by the Supreme Court judgment. The Supreme Court felt its hands were tied in its interpretation of the Constitution and expressed the laudable objectives which the legislation sought to achieve.
The Minister dealt comprehensively with the issues we raised. I thank my colleagues for moving the amendment on my behalf. Everyone has the same objective — to achieve the best possible outcome. Nobody is suggesting that all wisdom lies in one place. The Minister said the matter is complicated and has undertaken to look at both sections, including the issue of reasonable accommodation and section 35(1). I thank the Minister for his commitment and I look forward to Report Stage.
I agree with Senator O'Toole that the Minister has been reasonable and we look forward to what he produces on Report Stage. I am sure he agrees that in most circumstances we have been reasonable, particularly regarding amendments Nos. 72 and 76 which protect employers against an absurd increase in charges as it provides tax breaks, grants, etc. It is not reasonable for an employer not to do something because of the cost. As Senator O'Meara said, on most occasions the cost is not huge. If there are existing grants or tax breaks, that figure is further reduced. The Minister has shown a commendable approach so far and we look forward to Report Stage.
I thank the Minister for his response and I look forward to his proposals on Report Stage.
Mr. Cregan
I thank the Minister for his considerations.
Amendment, by leave, withdrawn.
Amendment No. 38 not moved.
I move amendment No. 39:
In page 20, subsection (4), line 17, to delete "reliable information" and substitute "information on which it is reasonable to rely".
This amendment responds to the Supreme Court which ruled that section 16(4) was constitutional but could only be used reasonably.
The parliamentary draftsman has examined the proposed amendment and advised me that the text in the Bill is satisfactory.
Amendment, by leave, withdrawn.
Section 16 agreed to.
SECTION 17.
I move amendment No. 40:
In page 20, lines 23 to 25, to delete subsection (1).
This amendment proposes to delete subsection (1). As the 1938 Act has been repealed this reference is no longer appropriate.
The Shops (Conditions of Employment) Act, 1938, will be repealed in March when the remaining provisions of the Organisation of Working Time Act, 1997, come into force. I will arrange for the deletion of section 17(1) after that date. I am advised by the Department of Enterprise, Trade and Employment that it would not be appropriate to delete section 17(1) before that date. The Bill will come before the Oireachtas in March and I assure the Senator I will bring forward an amendment then.
Amendment, by leave, withdrawn.
Amendments Nos. 41 and 55 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 41:
In page 20, subsection (2), line 26, to delete "marital status" and substitute "gender".
This amendment corrects an error in the Bill as the legislation in question relates to gender, not marital status.
At first glance, the proposed amendment appears to misinterpret the purpose of section 17(2). Entitlement to maternity and adoptive leave under the Maternity Protection Act, 1994, and the Adoptive Leave Act, 1995, is in general confined to women. Men are entitled to such leave in limited circumstances, namely, if the mother dies during the leave period and in the case of adoption, if the man is a sole male adopter. The purpose of this subsection is to ensure that, for example, a married man will not be able to use this legislation to claim maternity or adoptive leave on the same basis as a widower or, in the case of adoptive leave, a sole male adopter who would usually be a single man or widower.
The purpose of section 26(1) is to ensure that legislation or collectively agreed and contractual arrangements which confine benefits such as leave to women in connection with pregnancy, maternity or adoption will not conflict with employment equality law. The reference to adoption in this subsection is intended to protect from challenge adoptive leave schemes which are confined mainly to women and is entirely in line with EU law.
I thank Senator O'Meara for bringing forward this amendment. However, I cannot accept it.
Amendment, by leave, withdrawn.
Amendment No. 42 not moved.
Section 17 agreed to.
SECTION 18.
Amendments Nos. 43, 93 and 133 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 43:
In page 21, subsection (2), line 11, to delete "and 1993" and substitute "to 1997".
This and related amendments update references in the Bill which are now incorrect due to the enactment of the Civil Service Regulation Act, 1996, and the Interpretation (Amendment) Act, 1997.
Senator O'Meara's amendments are technical, relating to the collective citations of statutes, in particular the Interpretation Acts and the Civil Service Regulations Acts. I intend to bring forward appropriate amendments on Report Stage to address these and other collective citations in the Bill. In that context I will be taking Senator O'Meara's amendment into account.
Amendment, by leave, withdrawn.
Section 18 agreed to.
SECTION 19.
Amendments Nos. 44, 45, 46 and 62 are related and may be discussed together.
I move amendment No. 44:
In page 22, subsection (4)(d), line 1, after "justified" to insert "as essential".
This and related amendments are simply designed to strengthen the test for indirect discrimination in the Bill.
In discussing amendments Nos. 44 and 46, I should point out that the definition of "indirect discrimination" in sections 19 and 22 is based on European Court of Justice case law and is in accordance with the definition contained in the directive on the burden of proof. The proposal to incorporate an essential test in the definition appears to spring from the definition of indirect discrimination contained in the Employment Equality Act, 1977. That definition has been superseded by European Court of Justice case law. In contrast, the definition in the Bill meets our obligations under European Community law.
Amendment No. 45 seeks to add the word "criterion" to subsection (1). The existing list of contractual terms contained in the Bill includes a requirement in practice. My advice is that this terminology is sufficiently broad to incorporate a criterion.
Amendment No. 62 seeks to introduce a stricter justification test for indirect discrimination in non gender cases. The test in section 29, "reasonable in all the circumstances of the case", is one which can be applied over the eight diverse grounds covered in Part III of the Bill.
Senators should also note there are practical difficulties in applying the gender model of indirect discrimination to categories which are predominantly minority groups. Decisions in cases often turn on statistical comparisons, which is reasonable when one is dealing with groups like men and women who each represent about 50 per cent of the total population. A less rigorous approach is provided in connection with the new discriminatory grounds, partly for these kind of reasons.
In the circumstances, I regret I am not in a position to accept the proposed amendment to the definition of indirect discrimination. Amendment, by leave, withdrawn.
Section 19 agreed to.
Sections 20 and 21 agreed to.
SECTION 22.
Amendments Nos. 45 and 46 not moved.
Section 22 agreed to.
SECTION 23.
Amendments Nos. 47, 48 and 49 are related and may be discussed together.
I move amendment No. 47:
In page 24, between lines 10 and 11, to insert the following new subsection:
"(2) It is immaterial for the purposes of this section whether A and B are of the same gender.".
On Second Stage, I welcomed the fact that this Bill has a comprehensive section regarding sexual harassment, which it outlaws for the first time. While this fine section is to be welcomed, my amendments are designed to improve it.
This and other amendments would be important with regard to the area of sexual harassment in the workplace. I move the amendment in a constructive spirit in order to improve the Bill.
Amendment No. 47 seeks to extend the definition of sexual harassment to same sex sexual harassment. Section 22 gives protection against other forms of harassment and I am not disposed towards including same sex harassment in this section.
Part III of the Bill transposes into Irish law the equal pay and equally treatment directives. The foundation of these directives is the notion of a comparator of the opposite sex. I am not disposed to deviate from the policy in this regard in this Part. In any event, same sex sexual harassment is seldom simply a matter of discrimination on the grounds of sex. Same sex sexual harassment, which is based for example on age, sexual orientation or on family or marital status, is covered in section 32.
I realise there are aspects of harassment and bullying that do not come within the scope of the nine grounds in the Bill. I am determined to focus on outlawing discrimination on these nine grounds rather than broadening the scope of the Bill to include new issues, however worthy they may be. Accordingly, I am declining to accept the Senator's amendment.
Having looked at amendment No. 48, there may be a valid argument for deleting the term "express", as proposed in Senator O'Meara's amendment. I am pleased to accept her amendment No. 48.
I acknowledge the constructive nature of the proposed amendment No. 49. I have given careful consideration to the proposal and, while I sympathise with the objective involved, I have doubts about the practicality of the measure. For example, I suspect it could be extremely difficult for an employer to communicate a code of practice on sexual harassment to all customers, clients and business contacts. One can imagine the difficulties for a major retail store in the city centre. How would the management of such a store meet a statutory obligation to inform customers of its sexual harassment policy? In addition, the amendment does not say what code of practice is to be communicated. If it is not an approved code of practice, or derived from an approved code, it could contain deficiencies which would be undesirable.
Over and above this, the question arises as to how such a proposal would be policed. Having given this matter due consideration, I suggest the existing provisions already provide considerable scope for promoting best practice in Irish employment. In those circumstances, while I am prepared to accept Senator O'Meara's amendment No. 48, I am not in a position to accept her amendments Nos. 47 and 49, for the reasons outlined.
Amendment, by leave, withdrawn.
I move amendment No. 48:
In page 24, subsection (3)(b), line 26, to delete "express".
Amendment agreed to.
I thank the Minister for accepting amendment No. 48.
Amendment No. 49 not moved.
Section 23, as amended, agreed to.
SECTION 24.
An Leas-Chathaoirleach
Amendment Nos. 50, 51 and 52 are related and may be discussed together.
I move amendment No. 50:
In page 25, subsection (1), line 19, to delete "existing".
This amendment, together with amendments Nos. 51 and 52, proposes to extend the range of positive action to promote equality. Amendment No. 51 should promote equality for both genders, not just for women. Amendment No. 52 would extend to disabilities. Like amendment No. 49, it was proposed in the Dáil by Deputy Woods in the debate on the previous Bill.
The purpose of section 24(1) is to allow for the putting in place of positive action measures to promote equal opportunities for men and women. It is based on Article 2.4 of the Equal Treatment Directive. The word "existing" in the text of the Bill derives directly from that Article, as does most of the text of the subsection.
The reference to women reflects the terms of Article 2.4 which is intended to highlight that fact that it is women who have traditionally been the victims of discrimination. The amendments would diminish the compatibility of the subsection with the positive action provision in Article 2.4 of the Equal Treatment Directive and it would not be in the interests of the integrity of the Bill to accept them.
Amendment No. 52 has no relevance to Part III of the Bill, which focuses on gender discrimination issues. If it were to be provided for in the legislation it would be associated with section 33 which is concerned with positive action measures to integrate persons with disability or any class or description of such persons into employment. However, this proposal introduces a statutory obligation and would require considerable development as regards policing, dispute resolution, etc., before it could be brought into operation. I consider that such a statutory measure is not appropriate for this Bill. No such statutory measure has featured in Irish anti-discrimination law to date.
A provision on these lines has the objective of promoting the employment of people with disabilities as distinct from protecting such persons from discrimination. I wish to focus in this Bill on providing protection against discrimination. I acknowledge, however, that the Bill is only one measure of the response to the needs of persons with disability and, unfortunately, the measure is not appropriate within the scope of this Bill. I ask the Senator to withdraw her amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 51 and 52 not moved.
An Leas-Chathaoirleach
Amendments Nos. 53 and 54 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 53:
In page 25, lines 22 to 24, to delete subsection (2).
These drafting amendments are designed to amend the Defence Act under a separate section. This will make the Bill clearer.
I consulted with the parliamentary draftsman to see if I should amend the legislation. He advised he is satisfied with it as it stands and that there is no necessity to amend it along the lines proposed by these amendments. In those circumstances I am unable to accept them.
Amendment, by leave, withdrawn.
Section 24 agreed to.
NEW SECTION.
Amendment No. 54 not moved.
Section 25 agreed to.
SECTION 26.
Amendment No. 55 not moved.
Section 26 agreed to.
SECTION 27.
I move amendment No. 56:
In page 26, subsection (1)(a), to delete lines 25 to 30.
This amendment would delete the exceptions in the Bill regarding women in specific situations. They are unnecessary and patronising. I urge the Minister to accept the amendment.
The purpose behind this provision is to ensure the efficient enforcement of law and order in cases of civil unrest, riot or other potentially violent situations. Physical strength or size may be a crucial and decisive factor, either in the resolution of a difficulty or in attempting to ensure that violence is averted. In such circumstances, the Garda authorities may deem it necessary to assign male rather than female officers to specific duties. Equally, there are also circumstances or occasions where the assignment of female officers is seen from an operational point of view to be both desirable and necessary. This provision is, therefore, essential to allow the Garda Síochána the flexibility necessary to take these operational decisions in the public interest and in the light of security considerations. In view of this, I am sure the Senator may wish to withdraw her amendment.
Amendment, by leave, withdrawn.
I move amendment No. 57:
In page 26, subsection (2)(a), line 45, to delete "Act" and substitute "Part".
This is a clarifying amendment to ensure that gender claims are excluded only under this Part rather than the full Act.
My advice is that the amendment has no practical effect. I am advised that the use of the word "Act" or "Part" in these circumstances is a matter of the drafting style adopted with regard to specific legislation. In view of this I am not disposed to accept the amendment.
Amendment, by leave, withdrawn.
Section 27 agreed to.
SECTION 28.
I move amendment No. 58:
In page 27, subsection (1)(b), line 19, after "versa” to insert “, or C and D have different family status”.
This amendment is designed to improve the drafting of the Bill.
The term "family status" is defined in the Bill to mean:
.... responsibility—
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,
The change proposed by the amendment to the family status ground in the Bill goes beyond the intended scope in relation to this aspect of the legislation and would allow a person with family status to compose for himself or herself with a person of a different family status. It does not appear to me that there is a difficulty in this area which demands to be addressed.
The Bill includes the family status ground for the first time in Irish anti-discrimination law. I believe it to be an important provision because there are differences of treatment between the many people with family status as compared with those who do not have family status. I am strongly of the view that people should not be discriminated against for reasons of their family status, especially families who may already feel marginalised because of specific circumstances. Neither I nor Members of this House can be sure as to the kind of law or the number of cases this provision will engender when it is enacted. Inasmuch as other measures will be watched with interest, the House will also be interested to see how this develops. In the meantime I make no apology for retaining the definition of "family status" in the Bill and I ask the Senator not to press the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 59 to 61, inclusive, not moved.
Section 28 agreed to.
Sections 29 and 30 agreed to.
SECTION 31.
Amendment No. 62 not moved.
Section 31 agreed to.
Section 32 agreed to.
SECTION 33.
Amendment No. 63 not moved.
Section 33 agreed to.
SECTION 34.
An Leas-Chathaoirleach
Amendments Nos. 64 and 65 are related and both may be discussed together. Is that agreed? Agreed.
I move amendment No. 64:
In page 32, subsection (1) line 35, to delete "(a)" and substitute "(b)".
These amendments are designed to remove outdated and regressive provisions in that an employer can give a benefit based on a change in marital status. I am advised that this may be contrary to EU law.
The Bill outlines discrimination on the marital status ground. There was a tremendous philosophical discussion on that last week. However, it has long been the practice of good employers to provide benefits to employees based on change of marital status. I have in mind such benefits as a marriage gratuity and extra days of leave at the time of marriage. These benefits are of great assistance and I intend to continue to support initiatives of this type which are made by employers for employees. There is no reason to encourage a change in these practices or to accept the amendment.
Amendment, by leave, withdrawn.
Amendment No. 65 not moved.
I move amendment No. 66:
In page 33, subsection (3), line 17, to delete "actuarial or other".
This small amendment is designed to improve protection for disabilities. It is inspired by a similar amendment tabled by the Minister's colleague, the Minister for the Marine and Natural Resources, Deputy Woods, in the other House.
It shows how doctors differ and patients die. The reference to actuarial evidence is considered important. While the Bill does not deal with pensions where actuarial factors are particularly relevant, it covers other benefit schemes, such as death in service or permanent health measures where actuarial evidence arises, particularly in the context of age and health characteristics. In the circumstances, I do not favour deletion of the words proposed in the amendment. I am aware that I will face the wrath of the Minister for the Marine and Natural Resources, Deputy Woods. Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
Amendments Nos. 67 and 68 are related and may be discussed together by agreement.
I move amendment No. 67:
In page 33, subsection (4), line 21, after "ground" to insert "reasonably".
The amendment is designed to ensure that employers' decisions regarding retirement and recruitment ages can be challenged if they are unreasonable.
I thank Senator O'Meara for introducing the amendments which afford me the opportunity to become more hoarse and to outline the policy considerations which were taken into account in drafting section 34(4) and (5).
Regarding amendment No. 67, the policy in relation to retirement ages is to refrain from interfering with the discretion of employers to set an appropriate age or ages for the retirement of employees generally or any class or description of employees. The introduction of a reasonableness test proposed in the amendment would involve the Director of Equality Investigations and the Labour Court in deciding the reasonableness of retirement ages set by employers. I am not disposed to a change of policy that would give the Director of Equality Investigations a role in determining the appropriateness of such age limits.
The safeguard against unreasonable behaviour by employers is the fact that in setting retirement ages, he or she must do so for all employees or particular categories of employee. Therefore, any retirement age which the employer sets must be economically viable in practice. Any other arrangements would result in unsatisfactory interference with labour market practices in relation to retirement to the detriment of employers and employees.
Regarding amendment No. 68, section 34(5) allows an employer to set a maximum recruitment age in certain circumstances. In setting maximum recruitment ages, an employer must, in accordance with the subsection, take account of the time and cost of training an employee and the need to ensure a reasonable period of effective service prior to retirement. Any maximum recruitment age set by an employer can, in the context of an equality case under the Bill, be examined by the Director of Equality Investigations to ensure that the age limit set meets the criteria established in the Bill. The inclusion of the word "reasonable" does not add anything to the scope of the provision. Accordingly, I regret that I cannot accept the amendments.
Amendment, by leave, withdrawn.
Amendment No. 68 not moved.
Section 34 agreed to.
SECTION 35.
Amendments Nos. 69 to 76, inclusive, not moved.
Section 35 agreed to.
SECTION 36.
Amendment No. 77 not moved.
I move amendment No. 78:
In page 35, lines 1 to 13, to delete subsections (3) and (4).
The purpose of the amendment is to delete subsections (3) and (4). I am advised that the provisions are unnecessary because they do not relate to discrimination on prohibited grounds.
It is normal practice for employers who recruit professional and technical staff of the regulatory bodies which control entry standards in certain professions to require persons to have certain qualifications in order to be registered with the body or to be appointed to a particular post. Section 36(3) and (4) excludes this practice from the scope of the Bill. In this context it is well known that there are certain well established qualifications which prepare people to work in such diverse occupations as medicine, social work, psychology, dentistry, the law and as airline pilots.
Some other, usually foreign, qualifications are also automatically recognised on the basis that they are equivalent to Irish qualifications. In the case of other qualifications, a person may be required to demonstrate that the qualification is equivalent to the generally recognised qualification. These arrangements are long standing and are intended to ensure that people who practise a particular profession have the requisite professional skills and qualifications.
Acceptance of the amendment would mean that the integrity of existing arrangements would be jeopardised with consequential effects on existing guarantees of the quality of professional and technical expertise. Accordingly, I am not in a position to accept the amendment. The purpose of the Bill is to outlaw discrimination on nine distinct grounds. It is not part of the purpose of the Bill to impact on the arrangements in place in professions and other occupations to regulate and set standards for professional and technical practice. These matters range over many aspects of life and are in the competence of a myriad of employers, professional bodies and regulatory institutions.
In an EU context, the process of providing for the mutual recognition of qualifications is proving a complex and time consuming exercise. In these circumstances, it would be negligent of me to leave open the prospect of successful litigation under the Bill against regulatory bodies such as the Medical Council. This would result in people with qualifications which do not meet the minimum requirements of that organisation being accepted on the register of medical practitioners.
Amendment, by leave, withdrawn.
Section 36 agreed to.
SECTION 37.
Amendments Nos. 79 to 87, inclusive, not moved.
An Leas-Chathaoirleach
Amendments Nos. 88, 89 and 90 are related and may be discussed together by agreement.
I move amendment No. 88:
In page 36, subsection (6), line 6, after "to" to insert "employment not being clerical".
The amendment relates to the section which deals with exclusion of discrimination on particular grounds in certain employments, specifically the Defence Forces, the Garda Síochána and the Prison Service. Amendment No. 88 responds to the comments of the Supreme Court which said that exception should not apply to civilian and clerical employment.
The amendments tabled by Senator O'Meara are clearly well intentioned. However, they may be based on a misunderstanding of the nature of the employment set out in paragraphs (a), (b) and (c) of subsection (6). The employments listed, namely, the Defence Forces, the Garda and the Prison Service, comprise solely of operational staff. The Defence Forces comprise solely of soldiers and some Naval and Air Corps personnel of all ranks. Similarly, the Garda and Prison Service comprise only gardaí and prison officers respectively. The Defence Forces employ workers to carry out a range of tasks, including kitchen duties, gardening and clerical work. These workers are civilian employees and are not members of the Defence Forces. Similarly, the Garda and the Prison Service work side by side with clerical and other staff who are normally civil servants or contract workers, none of whom are members of the Garda or the Prison Service.
I hope this explanation clarifies the situation for Senators and that Senator O'Meara understands why I am unable to accept her amendments.
Amendment, by leave, withdrawn.
Amendments Nos. 89 and 90 not moved.
Question proposed: "That section 37 stand part of the Bill."
Mr. Cregan
Section 37 (1) states:
A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part or Part II if—
(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution.
Can the Minister see a situation where a person already employed by a religious, educational or medical institution could be discriminated against if he did not show similar prospects to an alternative employee?
I am not sure I understand what the Senator is concerned about, but the tests outlined in the legislation are not subjective. They would not apply on basis of the say so of an institution. The tests are balanced and will be adjudicated upon by independent third parties, that is, equality officers, the Labour Court and other courts. The provision was also drafted to meet the constitutional considerations which protect the religious ethos of many religious, educational and medical institutions. It is strictly conditional on the institution concerned being under the direction or control of a body established for religious purposes. There are strict tests in force before an exclusion may operate. The balanced tests to which I refer are fair and equitable. They are not subjective. The first test requires that discrimination practised by such an institution be essential for the maintenance of its religious ethos. The other test is that the discrimination must be reasonable in order to prevent undermining its ethos. I do not see the possibility of subjective discrimination as a result of this provision. I hope this satisfies the concerns of Senator Cregan.
Mr. Cregan
I agree with the Minister, but there is a danger in this section. I appreciate that the ethos of religious, educational or medical institutions, which have in general done excellent work, must be protected. Section 37(1)(b) includes the words "reasonably necessary to prevent an employee or prospective employee from undermining the religious ethos of the institution". How will "reasonably" be defined if a case of deliberate discrimination arises? Who will be responsible for such a definition?
I reiterate what I already said. The test cannot be more objective. The Supreme Court is satisfied with it. Given the dissection which learned judges engage in, I am confident that the objectivity of the tests would stand up to the most intense scrutiny.
Mr. Cregan
That is fine.
Question put and agreed to.
Section 38 agreed to.
SECTION 39.
I move amendment No. 91:
In page 36, paragraph (c), line 36, after "1995," to insert "and any legislation implementing the EU directive on parental leave".
Section 39 concerns the Equality Authority, the new and much more powerful institution which will replace the Employment Equality Agency. On Second Stage I welcomed this provision and in particular the proactive nature of the powers being given it to regulate and also push out the boat in promoting equality, particularly in the context of employment.
The amendment is self explanatory. It seeks to insert additional wording into paragraph (c) which also refers to the Maternity Protection Act, 1994, and the Adoptive Leave Act, 1995.
I agree with the principle of Senator O'Meara's amendment. My intention is to include among the functions of the Authority a role in relation to parental leave legislation similar to that provided in section 39(c) of the Bill in the context of maternity and adoptive leave legislation. Parental leave legislation is yet to be published. My advice is that the appropriate time to extend the scope of the Authority in this respect is in the Parental Leave Bill or in other legislation subsequent to that Bill becoming law. I will, accordingly, arrange for such an extension.
The deadline for transposition of the EU directive on parental leave into national law is 3 June 1998, that is, two years after the directive was adopted. Legislation is being prepared to give effect to this directive. It is my intention to meet the deadline for implementation. This commitment was made in Partnership 2000 and I wish to honour it as it is of considerable importance.
Amendment, by leave, withdrawn.
Sections 39 to 45, inclusive, agreed to.
SECTION 46.
An Leas-Chathaoirleach
Amendments Nos. 92, 106 and 107 are related and may be discussed together.
I move amendment No. 92:
In page 39, subsection (3), line 9, to delete "may" and substitute "shall".
These are technical amendments designed to improve the drafting of the Bill.
Section 46(3) allows but does not require the Minister for Justice, Equality and Law Reform to convene the first meeting of the Equality Authority. I recognise the purpose which the Senator is seeking to achieve. However, I am reluctant to assign to my office a mandatory power to convene that meeting, rather I expect, that in the normal course, it will be a matter for the chairperson of the Authority to convene the first meeting.
I would see the provision of subsection (3) as a residual power which may be exercised should that be appropriate. For example, if there is a particular need for the Authority to meet immediately on its appointment or if for some reason the Authority fails to convene within a reasonable period of its appointment. The provision corresponds to a similar provision in the Employment Equality Act, 1977. Under those circumstances I am unable to accept the amendment.
Section 58(1) creates a range of offences for failing to co-operate with an inquiry by the Authority. In paragraphs (a) to (c) of the subsection the offence arises where a person fails or refuses in various ways to co-operate with the Authority's inquiry.
The position is somewhat different in paragraph (d). In that paragraph the policy is to create an offence only if a person refuses to take an oath or to answer a question. The extension of this provision to a situation where a person fails to take an oath or fails to answer a question will leave a person open to prosecution for their failure to answer to a question even though the information sought by the questioner was outside his/her knowledge. Accordingly, I am not in a position to accept the amendment.
With regards to amendment No. 107, I will see whether it is possible to examine this further and I will come back with a more considered response at Report Stage.
Amendment, by leave, withdrawn.
Section 46 agreed to.
Sections 47 and 48 agreed to.
SECTION 49.
Amendment No. 93 not moved.
Section 49 agreed to.
Sections 50 to 53, inclusive, agreed to.
SECTION 54.
An Leas-Chathaoirleach
Amendments Nos. 94 and 127 are related and may be discussed together.
I move amendment No. 94:
In page 41, subsection (2), line 32, after "body" to insert "as is referred to in section 67(2) and".
Section 54 (2) requires the Authority in developing a code of practice to consult with such persons as the Authority considers appropriate or as the Minister may direct. Section 67(2) of the Bill to which the Senators amendment refers makes specific reference in another context to the need to consult specifically with organisations of trade unions and employers. My purpose in relation to the section 54(2) is that the option of more broadly based consultations should be available to the Authority that is envisaged in section 67(2).
With regards to the related amendment No. 127, section 67(2) requires that the Authority in reviewing legislation must consult with trade unions and employers organisations. There is nothing in the section to require or prevent the Authority from consulting with any other party whom it considers appropriate to the case. In those circumstances I regret I am unable to accept the amendment.
Amendment, by leave, withdrawn.
Section 54 agreed to.
Section 55 agreed to.
SECTION 56.
An Leas-Chathaoirleach
Amendments Nos. 95 to 105, inclusive, and amendments Nos. 108 to 116, inclusive, form a composite proposal. All these amendments are related and may be discussed together.
I move amendment No. 95:
In page 42, subsection (2), line 32, to delete "inquiry" and substitute "investigation".
My amendment and the related amendments replace the word "inquiry" with "investigation" which was the word used in the original Bill drafted by the previous Minister for Equality and Law Reform, Deputy Taylor. I am concerned the change of language will water down the Bill in relation to how it will operate.
Section 56 empowers the Equality Authority to conduct an inquiry for any purpose connected with the performance of its functions which are set out in section 39. The powers in relation to inquiries in section 56 are similar to those given to the Employment Equality Agency in respect of investigations in the Employment Equality Act, 1977.
The Bill establishes a new office of the Director of Equality Investigations to hear claims for redress in cases of discrimination. To avoid any confusion between the function of the Authority in relation to inquiries and the director in relation to investigations, separate terms have been used. This has resulted in the replacement of the word "investigation" with the word "inquiry" where the powers of the Authority, formerly the agency, are concerned.
Amendment, by leave, withdrawn.
Amendments Nos. 96 to 102, inclusive, not moved.
Section 56 agreed to.
SECTION 57.
Amendments Nos. 103 to 105, inclusive, not moved.
Section 57 agreed to.
SECTION 58.
Amendments Nos. 106 and 107 not moved.
Section 58 agreed to.
SECTION 59.
Amendments Nos. 108 to 114, inclusive, not moved.
Section 59 agreed to.
SECTION 60.
Amendments Nos. 115 and 116 not moved.
Section 60 agreed to.
NEW SECTIONS.
An Leas-Chathaoirleach
Amendments Nos. 118 to 122, inclusive, are related. Amendment No. 118 is an alternative to amendment No. 117 and amendment No. 120 is an alternative to amendment No. 119. Amendments Nos. 117 to 122, inclusive, may be discussed together.
I move amendment No. 117:
In page 46, before section 61, to insert the following new section:
61.—(1) A person on whom a non-discrimination notice has been served may appeal to the appropriate court within 42 days of the date of service against the notice or any requirement of the notice.
(2) Where the non-discrimination notice relates to any matter under this Act the appropriate court is the Labour Court.
(3) Where an appeal under subsection (1) is not made, a non-discrimination notice shall come into operation on the expiration of the 42 day period referred to in that subsection.
(4) Where the appropriate court has heard an appeal under subsection (1), it may either confirm the notice in whole or in part, with or without an amendment of the notice, or allow the appeal.
(5) Where the appropriate court confirms a non-discrimination notice, the notice, as so confirmed in whole or in part, shall come into operation on such date as the court shall fix.
(6) Where the appropriate court allows an appeal under subsection (1), the non-discrimination notice appealed against shall cease to have effect.".
I signalled on Second Stage that we had identified a missing section in the carrying over of sections to the Bill. I note the Minister's four amendments.
Government amendments Nos. 118 and 120 to 122, inclusive, as pointed out by Senator O'Meara, arise from Committee Stage amendments put down by the Senator and others. I thank her for these very important amendments. As she correctly pointed out on Second Stage, this lacuna in the Bill seems to rob the anti-discrimination notice procedure of its power. I agree with the Senator's concerns in this respect and I am pleased to have been able to resolve the matter speedily. Clearly, the legislation is all the better for this intervention and illustrates the importance of careful examination of it. I thank the Senator for her alertness.
Amendment, by leave, withdrawn.
Government amendment No. 118:
In page 46, before section 61, to insert the following new section:
"61.—(1) A person on whom a non-discrimination notice has been served may appeal to the Labour Court within 42 days of the date of service against the notice or any requirement of the notice.
(2) Where an appeal under subsection (1)is not made, a non-discrimination notice shall come into operation on the expiry of the 42 day period referred to in that subsection.
(3) Where the Labour Court has heard an appeal under subsection (1), it may either confirm the notice in whole or in part, with or without an amendment of the notice, or allow the appeal.
(4) Where the Labour Court confirms a non-discrimination notice, the notice, as so confirmed in whole or in part, shall come into operation on such date as it shall fix.
(5) Where the Labour Court allows an appeal under subsection (1), the non-discrimination notice appealed against shall cease to have effect.".
Amendment agreed to.
Amendment No. 119 not moved.
Government amendment No. 120:
In page 46, before section 61, to insert the following new section:
"61.—The Authority shall keep and maintain a register of every non-discrimination notice which has come into operation and the register shall be open to inspection by any person at all reasonable times.".
Amendment agreed to.
Government amendment No. 121:
In page 46, before section 61, to insert the following new section:
"61. —(1) Subject to subsection (2), the High Court or the Circuit Court may, on the motion of the Authority, grant an injunction to prevent discrimination by a person specified in the order of the court concerned of a type so specified.
(2) Subsection (1) applies to a case where, in the period of 5 years beginning on the date on which a non-discrimination notice came into operation, the Authority satisfies the High Court or the Circuit Court, as the case may be, that there is a likelihood of a further discrimination, contravention or failure referred to in section 60 (1) by the person on whom the notice was served.".
Amendment agreed to.
Government amendment No. 122:
In page 46, before section 61, to insert the following new section:
"61.—A person on whom a non-discrimination notice is served who, at any time within the period of 5 years beginning on the date on which the notice comes into operation, does not comply with the notice, shall be guilty of an offence.".
Amendment agreed to.
Sections 61 and 62 agreed to.
SECTION 63.
An Leas-Chathaoirleach
Amendments Nos. 123 and 124 are related and may be discussed together by agreement.
I move amendment No. 123:
In page 47, subsection (3), line 21, after "invite" to insert "or require".
I referred earlier to the importance of the Equality Authority being proactive in carrying out reviews. This amendment is designed to extend the power of the Authority to conduct reviews by inserting to "require" rather than "invite" into subsection (3).
Section 63 (3) provides that the Authority may invite a business, group of businesses or the businesses making up a particular industry or sector thereof to either or both of the following: to carry out an equality review in relation to their business or businesses; and to prepare and implement an equality action plan in respect of that business or those businesses.
The use of the term "invite" underlines the voluntary nature of the provision. The addition of "require" would place a statutory imperative on an organisation to comply with a request from the Authority and this change would not be in accordance with policy in the area. The amendment may have been prompted by a concern that the voluntary nature of the provision will render it ineffective. Senator O'Meara's concern is unfounded. If an organisation employing 50 or more people declines the invitation, the Authority can carry out an equality review and prepare an equality action plan. For those reasons I am unable to accept the amendment.
With regard to amendment No. 124, this is a completely new Government initiative in equality, and it is designed to target larger employments where the impact of equality reviews and action plans will be greatest. It recognises that small firms may have difficulty in becoming involved with formal mechanisms of this nature, and special treatment of small and medium sized firms is generally recognised as an appropriate consideration in the context of employment regulation. This provision applies such special treatment.
Amendment, by leave, withdrawn.
Amendment No. 124 not moved.
Section 63 agreed to.
SECTION 64.
I move amendment No. 125:
In page 48, to delete lines 39 to 42 and substitute the following:
"ority about the proposed substantive notice, the Authority shall have regard to those representations before deciding whether or not to proceed with service of the proposed substantive notice and, if so, as to its contents."
This is a drafting amendment which corrects an error in the Bill.
I appreciate the Senator's reason for tabling this amendment, as an initial reading of the Bill would suggest a need to realign the last clauses in paragraph (b) to apply to both paragraphs of the subsection. In deference to the Senator, I am advised that the drafting is correct as it stands.
The meaning is clear as it stands, because the advance notice provided for in paragraph (a) is contained by reference in paragraph (b) so that those paragraphs do not need elaboration of paragraph (a), which would be the effect of the amendment. It might be difficult for the uninitiated to understand, but the Senator will appreciate my point.
Amendment, by leave, withdrawn.
Section 64 agreed to.
Sections 65 and 66 agreed to.
SECTION 67.
I move amendment No. 126:
In page 49, subsection (1), line 23, after "any" to insert "enactment and in particular any".
This amendment seeks to extend the Equality Authority's power to review legislation. I consider this an important element of the Bill which would be improved by the amendment.
Section 17 gives an exclusion from the scope of the legislation to the sections of enactments within that section. Because of the favourable position enjoyed by these enactments compared with the generality of enactments, the Authority has been given powers to review the continued need for such exclusions. Enactments not listed in section 17 enjoy no such protection and may be challenged through the procedures of redress in the normal way. Accordingly, I am not disposed towards accepting the amendment.
Amendment, by leave, withdrawn.
Amendment No. 127 not moved.
Section 67 agreed to.
SECTION 68.
Amendments Nos. 128 and 129 are related and may be discussed together by agreement.
I move amendment No. 128:
In page 49, subsection (1), line 46, after "71(4)" to insert "and 79(2)".
This is a drafting amendment.
I see the Senator's rationale for this amendment and I asked the parliamentary draftsman to review the matter. He has advised me that the drafting device used here is a standard construction. The definitions in section 71(4) apply unless the context requires otherwise. Section 79(2) provides a variation of the earlier definition for a specific purpose. I hope the Senator recognises the value of drafting conventions and withdraws her amendment.
Amendment, by leave, withdrawn.
Amendment No. 129 not moved.
Section 68 agreed to.
NEW SECTION.
Acting Chairman
Amendment No. 130 has been ruled out of order as it is outside the scope of the Bill.
Amendment No. 130 not moved.
SECTION 69.
Amendment No. 131 not moved.
Section 69 agreed to.
SECTION 70.
I move amendment No. 132:
In page 51, subsection (1)(c), line 36, after "under" to insert "or otherwise complied with".
This is a drafting amendment and, in the spirit of constructiveness, is designed to improve the Bill.
I will go back to the parliamentary draftsman with this amendment and will come back on Report Stage and let the Senator know the situation.
Amendment, by leave, withdrawn.
I move amendment No. 133:
In page 51, subsection (1), line 40, to delete "may" and substitute "shall".
By substituting the word "may" for "shall", I seek to place an obligation on the Minister rather than leave it optional and in that sense strengthen the provision in the Bill.
Section 70 give an applicant for redress under the legislation the opportunity to seek information from his or her employer about possible discriminatory acts. The section makes statutory provision for prescribing the manner in which the information may be sought. As a result, statutory forms will be an important part of the information giving procedures contained in this section. The change to the text sought by the Senator would impose an obligation on the Minister to bring forward regulations under the section. I am informed that it is a convention of legal drafting to allow a Minister this apparent discretion in legislation, although for all practical purposes, the making of regulations may be a key step in giving effect to the provision.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 134 to 137, inclusive, are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 134:
In page 51, subsection (1)(i), line 42, to delete "X may question Y" and substitute "one party may question the other".
These amendments relate to the section headed "redress" and seek to ensure that fair play applies to questioning by either party in the event of a dispute.
Section 70 has been framed in the light of legal advice and consultations with the social partners. In drafting the provision regard was had to the fact that what is in question here is a preliminary right to information before the lodgement of a claim for redress with the Director of Equality Investigations or the Labour Court. Comprehensive powers of the kind envisaged in paragraph (a) of the Senator's amendment No. 136 are provided to the Director of Equality Investigations and the Labour Court after a claim has been lodged under sections 88 to 91. I was interested to note that the Senator, in framing paragraph (b) of this amendment, has proposed a shift in the burden of proof in circumstances where the employer has failed to meet his or her obligations under the section.
There is a provision in section 45 which is not dissimilar to that proposed by Senator O'Meara, although it would not represent as beneficial an arrangement for the employee as is provided in the proposed amendment. In preparing the Bill, I was advised that the provision in section 45 is the optimum shift in the evidential burden of proof which can be achieved legally in this kind of case. Section 45 provides that where an employer fails to meet his or her obligations with regard to the supply of information under section 40, the Director, the Labour Court or the Circuit Court, as the case may be, may draw such inferences as seem appropriate from the failure to supply the information or from the supply of false or misleading information.
Amendment, by leave, withdrawn.
Amendments Nos. 135 to 137, inclusive, not moved.
Section 70 agreed to.
SECTION 71.
I move amendment No. 138:
In page 53, subsection (3)(b), line 24, after "which" to insert "Article 119 of the Treaty establishing the European Community or"
This amendment is designed to ensure compliance with EU law.
I do not propose to accept this amendment. Following receipt of the amendment, I sought confirmation of advice already received while the Bill was being drafted. My advice is that the reference to the equal pay and equal treatment directives are the appropriate references. The equal pay directive interprets Article 119 of the Treaty adequately as far as the categories of persons covered by the Bill are concerned. In the circumstances, I regret I cannot accept the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 139:
In page 53, line 26, after "(4) to" to insert "(6) and"
This is a similar provision and I assume the Minister's response will be similar as a result.
Section 71 sets out the means of redress for cases of discrimination under the Bill. Section 71(3) provides that cases of discrimination under the gender ground may be referred to the Circuit Court instead of the Director or the Labour Court if the claimant concerned so decides. This option is given to a claimant in view the European Court of Justice case law on the subject, particularly the Marshall No. 2 cases which found against the imposition of an arbitrary ceiling on the maximum level of awards in such cases.
The Senator's amendment would have the effect of making a further distinction between gender equality and other equality cases by excluding such cases from the procedure laid down in subsection (7). Subsection (7) provides that claims for redress which arise against State recruitment agencies should, in the first instance, fall to be resolved between the State agency concerned and the claimant. I am not disposed to making such a further distinction between gender equality and other cases, especially when the distinction does not have a foundation in EU other law.
Amendment, by leave, withdrawn.
I move amendment No. 140:
In page 54, subsection (8)(a), line 41, to delete "twenty-eight" and substitute "twenty-eighth".
This is designed to correct what we consider a misprint in the Bill.
I confess that I am acutely aware of the fact that I have had few opportunities to accept some excellent amendments from Senator O'Meara. I am disappointed that I cannot be more accommodating and that is why it gives me such pleasure to accept this amendment. Judging by the contributions she has made, I realise the Senator has put a considerable amount of work into this legislation. I am aware of what is involved having served time as Opposition spokesperson on Justice. I praise her determination in tabling these amendments. I do not say this in a patronising way, but am pleased to accept the Senator's amendment on this occasion.
Amendment agreed to.
Section 71, as amended, agreed to.
SECTION 72.
Acting Chairman
Amendments Nos. 141 to 143, inclusive, are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 141:
In page 55, subsection (2), line 7, after "71(2)" to insert "or an appeal is brought under section 77".
These amendments relate to mediation and consultation of which I believe the Minister would be fully in favour.
Amendment No. 141 would give the Labour Court discretion to attempt to settle an appeal from a determination of the Director of Equality Investigations by means of mediation. I do not propose to accept this amendment on the basis that if, for whatever reason, mediation had not been possible at the referral stage, it is unlikely to be possible at the appeal stage. Furthermore the introduction of a mediator option at appeal stage would have the effect of making the redress mechanism unnecessarily complicated and would not contribute to the effective disposal of cases by the redress machinery.
The purpose of mediation is to allow for the settlement of disputes by agreement between the parties. Settlement of a dispute by means of mediation may involve a complainant accepting less than his or her full legal entitlements under the Bill. The proposed amendment would reduce the discretion for the settlement of disputes available under the current provision. It is important to note the Circuit Court can only enforce a mediated settlement in so far as it provides for redress which could have been provided for under the Bill. In the circumstances I do not propose to accept these amendments.
Amendment, by leave, withdrawn.
Amendment No. 142 not moved.
Section 72 agreed to.
SECTION 73.
I move amendment No. 143:
In page 56, subsection (4), line 43, to delete "with the consent of" and substitute "having consulted with".
It is a similar point designed to ensure the principle of consultation is given priority where possible.
I consider the consenting role for the Minister represents more balance in the law which is appropriate to the complementary responsibilities of the Minister for Justice, Equality and Law Reform and the Minister for Enterprise, Trade and Employment. That is at variance with the amendment put forward by Senator O'Meara and in those circumstance I regret that I cannot accept the amendment.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 144 to 146, inclusive, 150, 152 to 155, inclusive, 158, 160 to 164, inclusive, 166, 168 to 170, inclusive, 172 to 174, inclusive, 176, 177, 179 to 185, inclusive, 190 to 192, inclusive, are related and will be taken together by agreement. These amendments form a composite proposal and if amendment No. 144 is defeated, the related amendments cannot be moved.
I move amendment No. 144:
In page 57, subsection (6), line 7, to delete "determination" and substitute "decision".
This section refers to investigations by the director or the Labour Court. The Bill refers to a decision of the director as a decision but refers to the decision of the Labour Court as a determination. These amendments are designed to ensure that we should use the word "decision" for both. It would simplify the Bill.
These amendments are textual in nature. The proposed change is one of nomenclature and it is not intended to impact on the purpose or scope of the redress procedures in the Bill. The terminology used in the Bill was adopted to make clear the distinction between the decisions of the director and the determinations of the Labour Court. I am not convinced there are significant benefits to be gained by acceding to the Senator's proposal and I ask her not to press these amendments.
I would like a more comprehensive explanation from the Minister as to why there is a difference between a decision and a determination. Does he not agree there is need for clarification?
The proposed amendments appear to be based on a desire to streamline the Bill. I am not convinced that the objective is achieved. I believe more extensive amendments would be required to achieve the effect intended. The simple substitution of "decision" for "determination" in section 82(1) does not alter that section in any way.
The proposed amendments do not remove all references to "determination" in the legislation. There are no amendments to certain parts of the legislation where the word is used.
Is the Minister saying that it would create problems with the implementation of the Bill?
I am saying that the intention of the State was based on the objective of streamlining the legislation. I do not believe the amendments achieve the Senator's aim. It appears more extensive amendments would be required to achieve that objective. It was important to utilise language in the legislation which would distinguish between the decisions of the director and the determinations of the Labour Court. In those circumstances I do not think there are significant benefits to be gained. To the extent that the terminology in the Bill does distinguish between the decisions of the director and the determinations of the Labour Court, it is adequate.
Amendment, by leave, withdrawn.
Amendment No. 145 not moved
Section 73 agreed to.
Sections 74 and 75 agreed to.
SECTION 76.
Amendment No. 146 not moved.
I move amendment No. 147:
In page 58, subsection (2)(a), line 34, to delete "(c)" and substitute "(a)".
This amendment appears in the section which mentions redress which may be ordered. In that regard the amendment is designed to strengthen the powers of the Labour Court.
Section 73 provides for the referral of a dismissal case to the Labour Court and not the Director of Equality Investigations. This provision sets out the appropriate types of redress which the Labour Court can order in a dismissal case. Subsections(1)(a) and (b) relate to equal pay and would not arise in a dismissal case. In a case involving an appeal from the director to the Labour Court, the court has the same powers as the director in relation to redress which can be ordered in cases of appeal from the director. In the light of that information I hope Senator O'Meara will withdraw the amendment. Amendment, by leave, withdrawn.
I move amendment No. 148:
In page 59, subsection (5), line 23, to delete "and arises—".
This is designed to allow award of interest in nongender cases.
In deference to the Senator's amendment I took the advice of the parliamentary draftsman and I am advised that the text presently included in the Bill is appropriate. I regret I cannot accept the amendment in those circumstances. It is not a bad amendment but it is a question of drafting style and the parliamentary draftsman believes his version is sufficient.
Amendment, by leave, withdrawn.
I move amendment No. 149:
In page 59, subsection (5), lines 24 to 27, to delete paragraphs (a) and (b).
It is not normal practice in employment rights legislation to provide for the award of interest on compensation. Section 76(5) is an exception which is necessary on the basis of rights arising from EU legislation and is in line with the judgment of the European Court of Justice in the Marshall case. I would point out that interest on awards is payable, under section 86 of the Bill, in all cases where an employer fails to pay compensation and the award falls to be enforced by the courts. The award falls to be enforced by the courts. I do not intend to accept the amendment as it would involve a departure from established policy in the area of employment legislation.
Amendment, by leave, withdrawn.
Section 76 agreed to.
SECTION 77.
Amendment No. 150 not moved.
I move amendment No. 151:
In page 60, subsection (3)(b), lines 5 and 6, to delete "and section 56 of the Industrial Relations Act, 1990 (summoning of witnesses etc.).".
At Second Stage I pointed out that this section was unconstitutional. The Supreme Court judgment outlawed the use of section 56 of the Industrial Relations Act, 1990. This section was lifted from the 1990 Bill and used here and also appears in a wide range of legislation. Has anyone noticed that the section is exactly the same as that struck down by the Supreme Court? This amendment is designed to remedy that anomaly.
Section 63(3) of the Employment Equality Bill, 1996 was found to be unconstitutional in the Supreme Court judgment of May 15, 1997. That subsection provides that the Director of Equality Investigations could certify the circumstances in which the offence of obstructing or impeding an investigation and/or failing to comply with a requirement of a specified person are alleged to have occurred. This was a wide ranging provision. The range of facts which might have been included was very wide indeed and the facts themselves were likely, due to their nature and to the inferences to be drawn from them, to give rise to sharp conflict of evidence. The Supreme Court stated on several occasions that there were "scientific or technical or other matters capable of or amenable to prima facie proof by certification” provided the certification process was reasonable, justifiable and a proportionate limitation of the normal requirement of word of mouth evidence. A certificate under section 56 of the Industrial Relations Act, 1990, is very different from a certificate under section 63(3) of the Employment Equality Bill, 1996. My advice is that section 56 of the Industrial Relations Act, 1990 is not unconstitutional for the reasons adverted to above.
In those circumstances I appeal to Senator O'Meara to withdraw her amendment.
I will withdraw the amendment but I reserve the right to re-submit it Report Stage.
Amendment, by leave, withdrawn.
Section 77 agreed to.
SECTION 78
Amendments Nos. 152, to 155, inclusive, not moved.
Section 78 agreed to.
Section 79 agreed to.
SECTION 80.
I move amendment No. 156:
In page 62, subsection (1), line 38, after "of" to insert "the validity of".
This is a drafting amendment.
I am guided by the parliamentary draftsman in this matter. It would appear to me that there is nothing wrong with this amendment but the parliamentary draftsman is adamant that it would not add any further clarity to the Bill. With those kind words I regret that I am unable to accept the amendment.
Amendment, by leave, withdrawn.
Section 80 agreed to.
SECTION 81.
I move amendment No. 157:
In page 64, subsection (3), line 15, after "77(3)" to insert "and the powers under section 78(2)".
This amendment would allow the Labour Court to refer matters back to the Director for reinvestigation. This adds to the comprehensive nature of the section and I would like to hear the Minister's reply.
This amendment seeks to make the redress provisions in relation to collective agreements the same as those in respect of individual disputes. This was never the intention of the Bill. Disputes in relation to collective agreements are subject to a separate procedure which is in keeping with their industrial relations context. Accordingly, I cannot accept the Senator's amendment.
Amendment, by leave, withdrawn.
Section 81 agreed to
SECTION 82.
Amendments 158 not moved.
I move amendment No. 159:
In page 64, subsection (1), lines 25 and 26, to delete paragraphs (a) and (b).
This amendment, if accepted, would mean that reasons must be stated in relation to all decisions made.
The subsection to which this amendment refers provides that the Director of Equality Investigations and the Labour Court must give their decisions and determinations in writing. In addition, those bodies are obliged to specify the reasons for their conclusions in the case, where they think it appropriate to do so, or if requested to do so by one of the parties to the case.
The effect of this amendment would be to remove an element of flexibility which is considered important. For example, in a sexual harassment case, it might not be considered appropriate, or the parties to the case may prefer not to include information in the final decision or determination. At the same time, the provision ensures that the parties may require a reasoned decision from the Director or the Labour Court, if they so wish.
Amendment, by leave, withdrawn.
Amendments Nos. 160 to 164, inclusive, not moved.
Section 82 agreed to.
SECTION 83.
An Leas-Chathaoirleach
Amendments Nos. 165 and 167 are related and may be discussed together by agreement.
I move amendment No. 165:
In page 65, subsection (1), line 10, after "Director" to insert "free of charge and copies may be taken thereof at a cost not exceeding the reasonable cost of copying".
This amendment relates to section 83 which refers to supply and publication of decisions and determinations by the Director and seeks to ensure that copies of decisions be made available free of charge and that copies may be taken thereof at a reasonable cost. This is a small but important amendment. It ensures that decisions are made available and are accessible to all involved. I am sure the Minister will agree that this is in the same spirit as the freedom of information legislation which will be coming into operation very soon. It will generate a sense of information being easily accessible and not expensive.
Senator O'Meara's objective is laudable. She wishes to ensure that copies of judgments are made freely available to the parties involved and to others. The Senator wishes to ensure that copies of judgments are made available and correctly points out that this would be in keeping with the Freedom of Information Act. As the provision is already included in the Freedom of Information Act it is not required in this Bill. Senators will be reassured to know that copies of Labour Court recommendations are available for inspection, without charge, at the court. Copies are also issued without charge to principals in cases and to any member of the public who asks for them. I see no reason this practice should not continue in the Labour Court and the Office of Director of Equality Investigations when established.
As regards providing multiple copies of a decision at a cost not exceeding the reasonable cost of copying, Senator O'Meara might agree that it is best to leave this to the discretion of both organisations. She might also feel that the Freedom of Information legislation covers this. It may be that, in exceptional cases, the provision of a large number of copies could result in an inefficient use of resources and an unacceptable cost. I do not envisage a rush of people seeking copies of these matters. Nonetheless, one person seeking hundreds of copies would pose practical problems and it is easy to foresee how this could happen.
There is no problem regarding the publication and dissemination of decisions or recommendations of the equality service, the Labour Relations Commission or the Labour Court and no such problems are foreseen. I hope that Senator O'Meara will withdraw these amendments.
Amendment, by leave, withdrawn.
Amendments Nos. 166 to 168, inclusive, not moved.
Section 83 agreed to.
SECTION 84.
Amendments Nos. 169 and 170 not moved.
I move amendment No. 171:
In page 65, subsection (3), line 35, after "may" to insert "within 42 days".
This amendment is largely self explanatory. It refers to the section on determinations and specifically appeals and seeks to insert the words "within 42 days". This subsection would then read:
(3) Where a determination is made by the Labour Court under section 73 or on appeal under this Part, either of the parties may within 42 days appeal to the High Court on a point of law.
This will place a time limit on appeals. The Bill has no such limits and I hope the Minister considers this a useful amendment.
This is a useful amendment which, unfortunately, I cannot accept. The amendment proposes to incorporate in the Bill time limits within which cases must be appealed to the High Court on a point of law. These limits are already set down in the Rules of the Superior Courts. Order 106 of the Rules of the Superior Courts sets out the time limits within which an appeal to the High Court under the 1974 or 1977 Acts must be brought. The amendment is in order in theory but it is in the wrong place. The order would have to be amended when this legislation is enacted. The Senator's amendment is not wide of the mark but rightly belongs in the Rules of the Superior Courts.
Amendment, by leave, withdrawn.
Section 84 agreed to.
SECTION 85.
Amendments Nos. 172 to 174, inclusive, not moved.
I move amendment No. 175:
In page 66, subsection (3)(a), to delete from and including "the" where it secondly occurs in line 32 down to and including "and" in line 34 and substitute the following "within 42 days, and".
This amendment appears in the section which covers enforcement of determinations, decisions and mediated settlements, specifically in relation to enforcement by the Circuit Court. It refers to time limits on appeal periods. It clarifies the Bill in that the appeal period may be extended at present. It would be preferable to specify the number of days within which an appeal could be lodged. The Minister might consider this a minor drafting or technical point but it might be important.
I raised this matter with the draftsman and he confirmed the stunning fact that this is a drafting matter. The appeal period of 42 days is already provided for in sections 77 and 84. I hope this is satisfactory.
Amendment, by leave, withdrawn.
Amendments Nos. 176 and 177 not moved.
I move amendment No. 178:
In page 67, subsection (8), line 17, to delete "person affected" and substitute "respondent".
The normal rule of court procedure is that a civil bill must be served in the circuit where the respondent or defendant resides. This amendment would bring the Bill in line with current practice.
This is a technical amendment. There are a number of instances in the Bill where terminology of the kind dealt with by the Senator is used. I will consider the matter further and return on Report Stage with a definitive determination.
Amendment, by leave, withdrawn.
Section 85 agreed to.
SECTION 86.
Amendments Nos. 179 to 182, inclusive, not moved.
Section 86 agreed to.
SECTION 87.
Amendment No. 183 not moved.
Section 87 agreed to.
Sections 88 to 90, inclusive, agreed to.
SECTION 91.
Amendment No. 184 not moved.
Section 91 agreed to.
SECTION 92.
Amendment No. 185 not moved.
Section 92 agreed to.
Section 93 agreed to.
SECTION 94.
Acting Chairman
Amendment Nos. 186 and 187 are related and may be taken together by agreement.
I move amendment No. 186:
In page 73, subsection (1)(b), line 7, to delete "£15,000" and substitute "£100,000".
This refers to the important issue of penalties. No legislation has teeth unless penalties are attached. This amendment seeks to increase the penalty of a fine from £15,000 to £100,000 on summary conviction. I would like to hear the Minister's response. It might be a useful way of raising revenue.
I empathise with Senators in tabling these amendments because the offences set out in the legislation reflect serious breaches of the principle of equality through the deliberate obstruction of the Director of Equality Investigations, the Labour Court in the execution of its statutory functions and other significant matters. Having examined the issue of the fine, I assure Senator O'Meara and others that the level of fine and the term of imprisonment, the other sanction specified in this section, are in excess of such penalties in comparable legislation. While recognising the seriousness with which the proposal is put forward, I propose to leave the fine at £15,000 as specified in section 94(1)(b).
Amendment, by leave, withdrawn.
Amendment No. 187 not moved.
I move amendment No. 188:
In page 73, subsection (6), line 32, to delete "has" and substitute "shall have".
This is a technical drafting amendment which inserts the words "shall have" in place of "has".
This amendment is a matter of drafting style. I am advised that changing the legislation along the lines suggested would not add anything to the Bill, not that it would subtract anything from it either. In the circumstances, I ask the Senator to withdraw the amendment.
Amendment, by leave, withdrawn.
Section 94 agreed to.
Section 95 agreed to.
SECTION 96.
I move amendment No. 189:
In page 75, subsection (3), line 10, to delete "As" and substitute "Before, and as".
This amendment seeks to insert the words "Before, and as" in subsection (3). It relates to the striking out of cases which are not pursued and this amendment would ensure cases could not be struck out without first notifying the parties. This has an element of fairness about it which I am sure the Minister will not be able to resist.
The thinking behind this amendment is understandable, but I am reluctant to accept it. The principal difficulty with giving notice in writing to complainants about the striking out of a reference is that it is not always possible to locate them. Often the reason for the lapse in pursuing a case on the part of a complainant may be due to a change in location or, perhaps, emigration. In applying the powers given by this provision, the Labour Court is required to have regard to the principles of natural justice and good administrative practice. Senators can be assured it is current practice to notify a complainant, if contactable, of the intention to strike out and to provide every opportunity to reactivate the reference. I have no doubt this practice will continue. In those circumstances, I do not propose to accept the amendment.
Amendment, by leave, withdrawn.
Section 96 agreed to.
SECTION 97.
Amendments Nos. 190 to 192, inclusive, not moved.
Section 97 agreed to.
SECTION 98.
I move amendment No. 193:
In page 76, subsection (1), line 21, after "case" to insert "relating to employment as a member of the Defence Forces".
This amendment concerns special provisions for the Defence Forces. The Bill states no member of the Defence Forces may take a case, whereas I believe in the case of a member of the FCA who has a day job that it would be unfair to exclude them from the provisions of the legislation. The amendment seeks to redress that.
Senator O'Meara's amendment is interesting and deserves consideration. I shall discuss it with the Minister for Defence to obtain his views. I ask the Senator to withdraw the amendment pending discussions with our beloved constituency colleague.
I hope the Minister uses the word "beloved" in the wider context.
Amendment, by leave, withdrawn.
Section 98 agreed to.
SECTION 99.
Acting Chairman
Amendments Nos. 194, 195 and 196 are related and will be taken together by leave of the House.
I move amendment No. 194:
In page 77, paragraph (b)(i), line 1, to delete "deletion" and substitute "repeal".
These are drafting amendments and, as with others, I presume they are subject to the views of the draftsman.
I am informed the use of the word "repeal" rather than the word "deletion" is not in accordance with the normal code of construction. It dictates that the use of the word "repeal" is confined to cases where a provision is not being replaced unamended. As the intention in this instance is to delete and substitute alternative provision, the use of the word "deletion" is entirely in accordance with that code.
These are the final amendments to this Bill tabled by Senator O'Meara and her colleagues. I thank her for her contribution on this stage of the Bill's progress. I noted with interest her remarks on Second Stage when she said it was important for us to see this legislation on the Statute Book. While there was a difference of opinion on certain matters, I know we share the desirable objective of ensuring that the best possible Employment Equality Bill is put on the Statute Book. It is important in the context of the amendments tabled that I pay tribute to the work done, especially that of Senator O'Meara. It is obviously of crucial importance and much of what has been said by her and other spokespersons has given food for thought.
There will be a review of the legislation in two years' time and it will then be possible to see whether it is as good as first mooted or whether some of the criticisms were not only valid but should have been acted upon. That can only be done in the light of experience. Suffice to say that if the legislation should require amendment at that stage, I would be disposed towards that. Having served as Opposition spokesperson on Justice myself, I am well aware of the great amount of work which spokespersons are obliged to do on legislation such as this. It would be remiss of me if I did not thank other Senators who contributed amendments to the Bill. I thank Senators O'Donovan and Liam Fitzgerald on the Government side and Senators Connor, Cregan and others on the Opposition side. I also acknowledge the contribution of the Independent Senators to this comprehensive Committee Stage debate. I also thank all other Senators who contributed to the debate.
I thank the Minister for his remarks and I acknowledge the fine contribution made by the legal advisers who made their time and expertise available on this legislation. We are indebted to them for their assistance. I look forward to seeing the Minister on Report Stage.
Amendment, by leave, withdrawn.
Amendment Nos. 195 and 196 not moved.
Section 99 agreed to.
NEW SECTION.
Acting Chairman
Amendment 197 has been ruled out of order as it is outside the scope of the Bill.
Amendment No. 197 not moved.
Title agreed to.
Bill reported with amendment.
Acting Chairman
When is it proposed to take Report Stage?
Next Thursday at 10.30 a.m.
Report Stage ordered for Thursday, 5 March 1988.
Acting Chairman
When is it proposed to sit again?
Next Wednesday at 2.30 p.m.
The Seanad adjourned at 4.55 p.m. until 2.30 p.m. on Wednesday, 4 March 1998.