I move amendment No. 26:
In page 35, line 24, after "where" to insert "taking all appropriate circumstances into consideration".
Regarding a point made earlier by Senator O'Meara, I have been a Member of this House for 11 or 12 years and I have come to understand the particular language of Ministers and Ministries. I also know that one should never take for granted or include the Department of Justice, Equality and Law Reform in anything other Departments do. It has always been reflected in my previous experiences that when the Minister of the day says he or she will look at something and make a serious attempt to consider it, that has always been the case. I have never found myself misled by those words before; I have always found them honest in terms of their response. It is true I have often been unhappy with what certain Ministers have brought back on Report Stage following a commitment on Committee Stage, but I have not come across a situation where a Minister undertook to examine something and came back on Report Stage to find absolutely nothing had been done. My understanding in this particular case was that the Minister was prepared to look it. I have probably examined section 37 in more detail than any other person because this is the section which causes me most concern. I have said a lot about it previously and I am getting more and more worried about it. I do not find any reasonable attempt being made by the Minister to meet the reasonable issues raised.
I made it very clear on Committee Stage that I had serious difficulties with this section. I indicated the kind of amendments I thought proper to make it more acceptable. I also indicated I thought those amendments were not acceptable to the Minister because such issues as the Supreme Court judgment. I now find it extraordinary and most unacceptable and contemptuous of the operations of this House that the Minister would come back without making any movement whatever on the issue. I know the Department of Justice, Equality and Law Reform does its business in this manner; they do not care much about the concerns of public representatives and they are not moved by the concerns of the people whom we represent. This is contemptuous treatment. I do not believe this is the way Ministers should do business.
The next time a Minister or Minister of State in the Department of Justice, Equality and Law Reform stands up in this House and indicates that he or she will look at a particular wording and come back on Report Stage, I will cite this instance for not believing them. If people thought it was clever to say, "let us put off the battle until Report Stage" that is reasonable enough; it is acceptable for the Minister of the day to say "let us have the war on Report Stage when we will have had time to consider it", but it is not acceptable if they do nothing in the intervening period.
I want a ruling from the Leas-Chathaoirleach as to whether it is acceptable under Standing Orders that the Report Stage amendments should not be available until less than 24 hours before they are dealt with in the House. This is not my understanding. I would like a ruling on the matter before the conclusion of this debate. We can all fight dirty if that is what the Minister of State wants.
During the Committee Stage debate on section 37 we found more and more issues of concern to Members. I described ethos as ephemeral, and so it is; it changes from day to day. Perhaps "ephemeral" is an over-statement. The reality is that it may not last 24 hours. I do not know how to interpret this legislation. I asked a question on Committee Stage which the Minister was not prepared to answer. I asked if we were talking about an ethos as defined by the particular religious body referred to in the legislation or about an ethos defined by the board of managements of every school and hospital. Can different boards of management of the same religious denomination have a different concept of ethos? Since the Minister of State has not been able to confirm otherwise, I must take it that that is the case.
During her response on Committee Stage, the Minister of State indicated the words in my amendment "taking all appropriate circumstances into consideration" did not create a difficulty from her point of view, but apparently they do. There was an extraordinary interjection by some Members on the question "ethos". It is important that this matter is put clearly and firmly on the record for the benefit of Senator Lydon and others who only half listen. From my point of view and that of my colleagues, when it comes to ethos I believe in parental choice. There is no question of my being opposed to ethos. I will fight and defend the right of parents to have a school of a particular ethos for their children as much as I will fight on behalf of a teacher who I feel is being abused by tolerance. It is not a question of being opposed to an ethos, neither is it a question of being opposed to or having a difficulty with a particular ethos. In fact, for the record, and speaking with my trade union hat and as someone who must deal with religious denominations every day, I must say that the larger the denomination the less likely it is to have difficulty with that issue. However, that does not always apply to people on the ground where there could be difficulties. I believe in parental choice and that means choice of a school of a particular ethos, whether that be denominational, non-denominational or multi-denominational. This choice must be protected.
A pluralist society is not about uniformity, it is not about creating a homogeneous society where everyone is liberal, where there is as much room for the woman saying the rosary in O'Connell Street as there is for the most progressive person within the context of society's framework. It is not about oppressive behaviour; it is about choice. But within that choice, people must respect the rights of those working within the system. The courts rule on these matters every day of the week; they find a balance between the rights of different people.
I cannot recognise how the words I am asking be inserted in this section takes from the integrity required by the various denominational groups or from the importance of the interpretation given by the Supreme Court. The fact that this matter is constitutional means just that; there is no added extra for it being constitutional. The Department of Justice, Equality and Law Reform talks about its constitutionality as if it found a crock of gold at the end of a rainbow. All legislation is supposed to be constitutional when it leaves the Department and is introduced in this House. It should not need to be tested in the Supreme Court. We expect the legislation to be constitutional and we work on that basis.
There is other legislation which can defend this argument. On Committee Stage I referred to the importance of section 15 of the Education Bill which requires a board of management to respect the diversity in society or in the community. That is important. Another circumstance to be considered would be what if the ethos changed? I go back to my description of it being ephemeral. If it changes daily, "ethos" is what we say it is today, it is the way it is written. We have not defined "ethos" and this is creating problems.
Section 15 of the Education Bill defines "characteristic spirit" which to all intents and purposes must mean ethos. But as was clearly enunciated by Senator Norris on Committee Stage, Chambers Dictionary's definition of "ethos" does not fit in here, or if it does, it does not make any sense in the context of the remainder of the Bill.
Is a nurse or teacher appointed to work in a religious institution and who may work there for up to 40 years, required to be aware of changes in the ethos or satisfy themselves on day one as to what it is when reference is made to respecting it? Is the board required to inform teachers of changes in the ethos of the school as it interprets them? How is an individual to be satisfied that he or she is conforming to the ethos of the school? This is similar to a Third World totalitarian regime where laws are made up from day to day and the people are not told about them. How are people supposed to make sure they are not undermining the ethos of the school if they are not to know what is the ethos? Even if they are able to determine it, it can be changed without them knowing.
These issues are crucial. We have spent long hours debating the protection of workers, young and old, involved in different industries and those seeking maternity protection, for example. This is yet another example. I have never had a difficulty with the need to protect ethos. I support the idea in a pluralist society that the ethos of a particular group should be protected. However, I have had difficulty at times with the ethos of one religious group which does not conform to the general objectives of the school curriculum as determined by the State but that is a matter for the State to deal with.
It is not the business of a teacher to undermine the ethos of a school and there can be no case for protecting a teacher who would deliberately attempt to do so. I have no brief on that but neither do I want people to do that. It is fair to ask that they know what is required of them and that is not the case in this instance. There is a broader set of circumstances involved here than is provided for in the Bill which states a religious institution established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values — I presume that is where schools are included — shall not be taken to discriminate against a person if it gives more favourable treatment on the religion ground to an employee or a prospective employee where it is reasonable to do so in order to maintain the religious ethos.
The ethos will have to be decided. The Minister of State's advisers did not look at the appointment procedure for primary school teachers when that section was drafted. Her Department has responsibility for aspects of equality where equality officers are often called upon to challenge appointments that have been made. They follow a rigid set of circumstances. They look at weightings given to certain desirable and essential qualities in the person to be appointed. Is it not the case that a certain weighting will be given to ethos? How will it become a reasonable and accountable appointment procedure? At what point in the procedure will it be decided it is reasonable to do something in order to maintain the religious ethos of the institution?
In over 3,000 primary schools, boards of management are advised by a selection committee. The committee may comprise the principal of the school and the chairperson of the board, among others. The selection panel usually consists of three people but may have five or more on occasion. It will come to a conclusion and propose the appointment of an individual to the board of management. The board defines the ethos of the school and also confirms appointments. Is it at that point, when the selection procedure has concluded, that it will decide on the religion ground that one individual is more qualified or acceptable than another in order to maintain the religious ethos of the institution? Is a new process entered into at this stage? Is ethos raised after the appointment or is it now appropriate for a board of management to state Catholics need not apply or Protestants need not apply because this is necessary in order to maintain the religious ethos of the institution? What is to stop the board doing that? Is it entitled to do that?
We are entering a morass. I referred to certain difficulties which cannot be resolved by my amendment, but at least it allows an individual to defend himself or herself by taking the wider picture into consideration. I cannot see how that undermines the objectives set by the Department to protect ethos. I do not have a difficulty with the protection of ethos but I have with the Minister of State's refusal to accept the amendment. It does not undermine what she is trying to achieve or take from the points made by the Supreme Court. The fact that it will not be accepted is not helpful in terms of protecting employees.
Is there a hidden agenda? What is the Minister of State trying to achieve that is contravened by my amendment? What in my proposal changes the direction of what she is trying to achieve? What are her advisers saying?
The Bill states:
If it gives more favourable treatment where it is reasonable to do so in order to maintain the religious ethos of the institution.
My amendment states:
... where taking all appropriate circumstances into consideration it is reasonable to do so in order to maintain the religious ethos of the institution.
Where is the difficulty? I have outlined appropriate circumstances. It should be appropriate for an individual to argue this is the ethos today but it was not the day he or she was appointed; that certain events occurred which proved this was a change, for example, if a school decided to take a more fundamentalist approach than it did originally. We heard a woman interviewed on "Today with Pat Kenny" who runs and determines the ethos of a school and she put her views forward. There were problems in the school arising from this fundamentalist movement.
The Department has just simply decided it does not have to accept amendments and has returned to the old days where it does not have to do business. Ar scáth a chéile a mhaireann daoine.