Equal Status Bill, 1999: Second Stage.

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

I am pleased to bring before the Seanad this important measure which is a key element of the Government's equality agenda.

The Equal Status Bill will, for the first time, provide protection against discrimination outside the field of employment. It deals with discrimination on the grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community and gives those who are discriminated against a statutory means of redress. It has a broad-ranging scope covering provision of goods and services, disposal of premises and accommodation, education, and registered clubs. The Bill applies to goods and services which are available to the public, whether on payment or not, and irrespective of whether provided by the public or private sector. This measure complements the Employment Equality Act, 1998, which prohibits discrimination on similar grounds in the workplace.

Senators will no doubt recall the fate of the previous Equal Status Bill. That Bill, which was initiated in 1997 by the then Minister for Equality and Law Reform, Mr. Mervyn Taylor, passed all Stages in both Houses of the Oireachtas. The entire Bill was then referred by the President to the Supreme Court under Article 26 of the Constitution. The Employment Equality Bill of 1996 had already been referred to the Supreme Court and on 15 May 1997 the court found that Bill to be unconstitutional in three respects. As two technical provisions found unconstitutional in the Employment Equality Bill were also contained in the Equal Status Bill, it then became inevitable that the Supreme Court would also find the Equal Status Bill unconstitutional. The court gave its judgment on the Equal Status Bill on 19 June 1997. As expected, the court held those two aspects of the Bill – vicarious liability of employers for criminal acts of employees and use of a certificate in a criminal trial – to be repugnant to the Constitution. The Supreme Court declined to consider the Bill further.

Preparation of the revised Equal Status Bill was necessarily a more complicated matter than was the development of the revised employment equality legislation. The Employment Equality Bill had been thoroughly examined by the Supreme Court, particularly as regards a range of key and controversial provisions, and was found constitutionally sound except for three aspects. It was possible, therefore, to revise that Bill relatively quickly and to bring forward a redrafted measure in the latter part of 1997, resulting in the enactment of the Employment Equality Act, 1998, in June 1998. In the case of the Equal Status Bill, however, the Supreme Court did not examine the Bill as a whole and did not give its imprimatur to any aspect of it. It was, therefore, necessary to obtain extensive legal advice before developing the revised Equal Status Bill. As this is a wide-ranging and complex measure, it was necessary to proceed thoroughly and carefully to ensure that the revised measure would pass constitutional muster.

Following on the Employment Equality Act, 1998, which is now fully in operation, this Bill is a further step forward in the area of equality legislation. The Bill is based on the principle that everyone has an equal right to participate in our society. People should not be denied access to services, facilities or amenities just because of their skin colour, disability or membership of the Traveller community. Everyone, male or female, white or black, old or young, with or without disability should be seen as of equal worth and entitlement. Each person should be treated on his or her own merits and not on the basis of a prejudice or stereotype.

At present there is an absence of legal redress for a woman who cannot become a member of a local golf club simply because she is a woman, the person who is refused entry to a pub because he or she uses a wheelchair or the black person who is not given a flat simply because of his or her skin colour. Such people want more than mere sympathy, they want the protection of the law. Groups representing persons who have experienced discrimination have been pressing successive Governments for legislation along these lines for a considerable time and are anxious to see this measure in place.

Until this legislation is in place, Ireland cannot ratify the UN Convention on the Elimination of All Forms of Racial Discrimination. This convention dates from the 1960s and Ireland signed it in 1968. In the intervening years, the convention has been ratified by more than 150 countries, including all our EU partners. The UN monitoring bodies have on a number of occasions called for action by Ireland to ratify the convention and I can confirm that we will take steps to do so after the passage of this legislation. Similarly, the enactment of the Equal Status Bill is necessary to enable us to lift a reservation on the UN Convention on the Elimination of All Forms of Discrimination against Women.

Senators will agree that there is across the board acceptance of the principle of equal status legislation and, thus, the enactment of an Equal Status Bill has been a fundamental element of the programmes of successive parties in Government. Equal status legislation is among the commitments in the Good Friday Agreement. Equal status legislation has been endorsed by the social partners who participated in the Programme for Competitiveness and Work, Partnership 2000 and the recently agreed Programme for Prosperity and Fairness. Recommendations relating to anti-discrimination legislation were set forth in the reports of the Second Commission on the Status of Women, the task force on the Travelling community and the Commission on the Status of People with Disabilities.

At EU level the fight against discrimination has moved beyond the traditional field of gender discrimination in the workplace. The Amsterdam Treaty, which came into force last May, empowers the Union to take action on discrimination in a way not conceived of when the treaties founding the Union were agreed. Article 13 of that treaty gives the Union a basis to combat discrimination, both in employment and non-workplace areas, on grounds of sex, race or ethnic origin, religion, disability, age and sexual orientation. In November 1999 the Commission released details of its package of measures under Article 13, consisting of two draft anti-discrimination directives and an action programme. This package is being discussed by the member states.

The essential thrust of the current Bill is the same as that of the 1997 Bill. Changes have been made to rectify faults identified by the Supreme Court consequential on the court's finding on the Employment Equality Bill, in response to faults identified in legal advice, to correct technical points or remove anomalies arising from representations and comments on the Bill since it was published last April and in response to points made when the measure was debated in the other House.

I will now set out the main changes. The 1997 Bill required service providers to make reasonable accommodation, including the provision of special treatment or facilities, for people with disabilities unless such reasonable accommodation would give rise to undue difficulty. As Senators will be aware, the Supreme Court found the comparable requirement in the Employment Equality Bill, 1996, to be unconstitutional. The implications of this judgment were carefully examined before the revised Equal Status Bill was developed. The redrafted version follows the approach taken in the Employment Equality Act, 1998, that is, the obligation to make reasonable accommodation is subject to a nominal cost threshold. This approach has been taken following extensive legal advice on the matter. As required by the Supreme Court judgment, vicarious liability of employers for acts of employees now applies only in respect of civil proceedings. The subsection which allowed for the use of a certificate as evidence of an offence has been deleted.

The 1997 Bill provided for the establishment of the Equality Authority with a remit in both employment equality and equal status matters. As the Employment Equality Act, 1998, now includes provision for the establishment of the authority and for its functions in the employment equality area, the Bill simply extends the functions of the authority to equal status matters. There are a number of changes in the education area, including the deletion of the provision which allowed schools catering for persons of a particular nationality or national origin to restrict access in certain circumstances. This provision presented constitutional difficulties and, on further consideration, was deemed to be unnecessary. Provisions dealing with discrimination by firms, including partnerships, against members or partners have been deleted. These provisions were anomalous vis-à-vis the provisions of the Employment Equality Act, 1998, and were not required by the EU directive on self-employed activity.

Registered clubs which are found to be discriminatory will forfeit their certificate of registration but, following legal advice, this is now the sole sanction against such clubs. Procedures for referral of claims have been modified to give greater flexibility in exceptional circumstances. Provision is now made for the Equality Authority to carry out equality reviews and action plans in non-employment matters. Senators will doubtless observe other changes in the 1999 Bill as against the 1997 Bill, but I do not propose to go into details of these at this stage. I will now deal with the specific provisions of the Bill.

The Bill is divided into five parts as follows: Part I contains definitions and sets out what is meant by discrimination, Part II deals with discrimination in particular areas, Part III provides means of redress and compensation for persons who may have suffered discrimination, Part IV, together with the Schedule, extends the functions of the Equality Authority to equal status matters, and Part V contains general and technical provisions.

Part I defines terms used in the Bill. Senators may wish to note the broad definition of disability in section 2. There is also a comprehensive definition of "services", which includes services and facilities of any nature including access to and use of any place, banking or insurance services, facilities for entertainment, recreation or refreshment, cultural activities, transport or travel and professional or trade services. The definition of "Traveller community", which is now included is modelled on the Race Relations Order (Northern Ireland), 1996, and such a definition was sought by Traveller interests.

Section 3 sets out what is meant by discrimination. Discrimination occurs where, on discriminatory grounds that existed, exist, are believed to exist or are considered likely to come into existence, a person is treated less favourably than another person is, has been, or would be treated. It also occurs where a person is treated less favourably because of his or her association with someone in one of the protected categories. A further form of discrimination occurs where a requirement to comply with a condition has a disproportionately adverse effect on a particular category of person and this requirement cannot be justified as being reasonable in all the circumstances of the case. This form of discrimination is commonly known as indirect discrimination, although the term does not appear in the Bill. The discriminatory grounds are gender, marital status, family status, sexual orientation, religion, age, disability, race, including colour, nationality or national or ethnic origin, and membership of the Traveller community. Victimisation of a person because of his or her involvement in proceedings under the Bill is also treated as a discriminatory ground.

Section 4 contains provisions related to persons with disabilities. I have already referred to the Supreme Court's findings that the reasonable accommodation provisions of the Employment Equality Bill were unconstitutional and the consequent insertion in the Employment Equality Act, 1998, of a nominal cost threshold for reasonable accommodation. This approach has been followed in the Bill.

Part II deals with discrimination in particular areas. Section 5 prohibits discrimination in the provision of goods and services. There are a number of exceptions for differences of treatment in certain circumstances in particular areas, such as insurance, sporting events and entertainment. Among these exclusions are reasonable differences of treatment in the area of insurance and finance which are based on actuarial or similar data. Examples of this would be the different treatment of persons under 25 in motor insurance and the different treatment of persons on age grounds in life assurance. Differences of treatment of persons on the grounds of gender, age, disability, nationality or national origin are permissible in relation to sporting facilities and events. Thus, for example, the Bill recognises and allows for different events, such as women's or men's football teams, under 21 football teams or games for people with a disability. As these examples show, the various exceptions reflect what most people would regard as acceptable and necessary differences of treatment.

Discrimination in disposing of premises and provision of accommodation is also prohibited, subject again to a number of exclusions. Among the exemptions are disposals by will or gift, small premises where the accommodation provider continues to live on the premises, accommodation intended for use by persons of one gender and refuges and nursing homes.

Educational establishments may not discriminate against students in matters such as admission or access to courses. There are a number of exemptions in the education area. For example, single gender schools are permissible. Denominational schools may refuse to admit non-religionists in certain circumstances. Educational establishments may make reasonably necessary distinctions based on gender, age or disability in relation to sport. Differences of treatment are also warranted if the admission of a student with a disability would make impossible or be seriously detrimental to the education of other students.

Sections 8 to 10 deal with discrimination by registered clubs. The approach taken in relation to such clubs differs from that taken in other areas. The Bill does not prohibit discrimination by clubs against members or potential members. Instead, it seeks to discourage such discrimination by allowing a complainant to apply for a determination from the District Court that a registered club, that is, one which can sell intoxicating liquor, is a discriminating club. If the club is determined by the District Court to be a discriminating club, it will not be entitled to renew its certificate of registration until it has rectified the situation.

A number of exemptions are provided in section 10 in relation to registered clubs. Clubs are not regarded as discriminating just because they cater for persons of a particular religion, age, nationality or ethnic origin. A club may provide separate but equivalent facilities for particular age groups or different sexes in certain circumstances. Relevant and reasonably necessary differences of treatment in relation to sporting facilities or events based on gender, age, disability, nationality or national origin are permissible. Certain positive action measures designed to promote greater equality are also exempted.

In section 11 sexual harassment or harassment based on any of the discriminatory grounds is prohibited in the areas covered by the Bill. A person in authority in an educational establishment, a person providing services or accommodation or disposing of goods or premises may not sexually harass or harass a student, customer etc. Furthermore, a person who is responsible for the operation of an educational establishment or a place at which goods, services or accommodation facilities are offered to the public may not allow a student, customer etc. to suffer sexual harassment or harassment there. It will, however, be a defence for the person responsible to show that he or she took reasonably practicable steps to prevent such harassment. Section 12 prohibits any form of advertising which indicates an intention to discriminate, to sexually harass or to harass.

I have already referred to some of the specific exemptions which apply to particular areas. There are also some general exemptions in sections 14 and 16. For example, actions which are required to be done by or under statute, court order, EU law or international obligations are exempt, as are bona fide positive action measures. A reasonable preferential charge for persons together with their children, married couples, persons in a specific age group or persons with a disability is permissible. Different treatment is also acceptable where it arises in the exercise of clinical judgment or because the person concerned is incapable of entering an enforceable contract or of giving informed consent.

Section 15 deals with safeguards. It makes it clear that a service provider or similar person is not required to serve a customer if the service provider has reasonable grounds, other than discriminatory grounds, for the belief that provision of the service would create a substantial risk of criminal or disorderly conduct or behaviour or cause damage to property. It also provides that action taken in good faith for the sole purpose of complying with the Licensing Acts is not discrimination.

Sections 17 to 19 make special provision for the needs of persons with a disability in the area of transport accessibility and convenience in using public streets and pavements. They provide for regulations requiring that buses and trains, and bus and train stations, be readily accessible to persons with disabilities. In addition, road authorities must provide kerb ramps or similar features when constructing or altering public paths.

I now turn to the enforcement provisions under Part III of the Bill. Senators will be aware that both the Equality Authority and the Office of the Director of Equality Investigations stand established under the provisions of the Employment Equality Act, 1998, and that both entities commenced operations in relation to employment matters in October last. The functions of the authority and the director will be broadened to include equal status matters once the present measure is brought into operation.

Claims of discrimination or harassment may be referred to the Director of Equality Investigations who will provide a simple, inexpensive and speedy means of redress for victims of discrimination. As I have said, the decision on whether a club is a discriminating club is a matter for the District Court and I would emphasise that the Director of Equality Investigations will have no function in the matter of discriminating clubs.

The procedures outlined in sections 20 to 38 which deal with cases referred to the director correspond, subject to certain modifications and exceptions, to those applicable to cases referred to the director under the Employment Equality Act, 1998. I will mention some features of the redress procedures. A claim referred to the director under this Bill must be preceded by an initial notification to the respondent within two months of the alleged discrimination or of its most recent occurrence. Should exceptional circumstances have prevented the complainant from doing so within two months the director may, if he or she is satisfied that it is just and equitable to do so, give an extension to four months for the notification to be given to the respondent. The giving of a notification is intended to put the respondent on notice, afford him or her the opportunity to take remedial action and, if the respondent wishes, to give the respondent's side of the story. There is a six month limit for referral of claims to the director, which may be extended in exceptional circumstances to 12 months.

The director may at any time dismiss a claim which is made in bad faith or is trivial, vexatious or frivolous. The director may investigate a claim or, alternatively, seek to resolve the matter by mediation. Having investigated a claim, the director may award compensation and/or require that a particular course of action be taken. Compen sation is limited to the maximum that could be awarded in a civil case in contract, currently £5,000.

The director will have strong investigative powers to enter premises, to obtain relevant information, through interview or otherwise, and to ensure the imposition of sanctions in the event of failure or refusal by persons to co-operate with an investigation. Decisions of the director may be appealed to the Circuit Court within 42 days.

The Equality Authority will have the power under section 23 to refer certain cases to the director. Such cases could involve discrimination against a group of persons or a situation where the person concerned is not in a position to bring a case themselves. The authority may also refer cases involving prohibited advertising and non-compliance with the regulations on transport accessibility. It will also have the power to seek injunctions.

Part IV together with the Schedule, extends the functions of the Equality Authority, as set out in the Employment Equality Act, 1998, to include equal status matters. Part V deals with various general matters, including expenses, regulations, vicarious liability, offences and commencement.

This legislation will have a profound impact on Irish society. Its provisions, together with the Employment Equality Act, 1998, will put in place a comprehensive and advanced anti-discrimination code. I look forward to a constructive and wide-ranging debate on this important legislation.

The reintroduction of this Bill in this House is welcome. It is now a little short of three years since the Equal Status Bill, 1997, was debated here. Unfortunately, although it was willingly passed by this and the other House, with the Employment Equality Bill, 1996, it did not bear up to the constitutional test heard in the Supreme Court. We must always respect the Constitution in any Supreme Court test of any laws made in these Houses under the Constitution. Nevertheless, taking into account the Supreme Court decision, this Bill and the Employment Equality Act are less good as legislation.

The quality and effectiveness of these items of legislation are particularly important because they are designed to protect the interests and opportunities of some of the most vulnerable people in the population. It is regrettable that the Constitution – by common consent a very good document but rooted in the thinking of the 1930s – can do something to diminish this important legislation. I hope the committee dealing with constitutional review might take note of this.

There are nine grounds under which discrimination is outlawed under this legislation. Generally, the provisions of the Bill are comprehensive and proactive in promoting equality and the principle of equal status under all the headings. This long-delayed addition to our anti-discrimination law is needed. We pride ourselves on our advanced society and we feel that we are in the forefront in the world evolving and applying best practice in human rights law. Yet there is much evidence that there is a worrying degree of nascent racism not far below the surface. The attitude we see towards asylum seekers and refugees – often the institutional attitude – is instructive. Recent court cases involving the renewal of pub licences and members of the Travelling community are also very instructive.

Ireland is not unique in this regard. However socially advanced or enlightened a country seems to be, one always finds nascent racism or a willingness to practice or express discrimination and social exclusion. Recent political events in Austria are a warning of what can happen when jingoism and barely concealed racism are dressed up in populist language and rhetoric, and how significant sectors of the population, from all social backgrounds in what is regarded as a socially advanced society, can embrace this corrosive, backward, uninformed and simplistic propaganda and vote for it.

The most disappointing feature of the Bill is the non-inclusion of the statutory sector or the public bodies within the scope of the Bill. The National Consultative Committee on Racism and Interculturalism, a body under the aegis of the Minister's Department, made an interesting submission to the Joint Committee on Justice, Equality, Defence and Women's Rights on this Bill after it was published. One of the points made was that the activities of public bodies do not fall within the scope of this Bill, under the provisions of section 5(2)(a), dealing with the provision of services and disposal of goods because these activities do not take place in the course of a business or trade. Thus, policing activities, immigration control, operation of prisons and implementation of tax, social welfare and planning codes are not governed by this Bill.

Even if section 5(2)(a) were dropped, the definition of service in section 2 would also exclude many public service activities. Look also at section 14 which excludes the taking of any action required under statute from the scope of the Bill. Moreover, there is no duty imposed on the public bodies to work for the elimination of discrimination and to promote equality of opportunity. One might make comparisons here with section 71 of the UK Race Relations Act, 1976. This is a serious and interesting point made by a body set up under the aegis of the Department in commenting on this Bill.

It is noteworthy that the new UK Race Relations Bill, published recently by the Home Secretary, Mr. Jack Straw, places a very direct and specific responsibility on public bodies such as the police, immigration officers, officers dealing with tax and social welfare and the prisons that they perform their official duties not alone in a way that gives no hint or impression of racism or discrimination, but to proactively exclude all forms of unequal treatment.

Under the Government's strategic management initiative for the public service, the various Departments are obliged to produce a customer action plan which must show how they intend to interface with their customers, including responding to the needs of minority groups. Why is this laudable innovation in the delivery of Government service, which has been in operation for some time, not reflected in the Bill? Has the Minister not taken note of the reported comments of Mr. Peter Finlay, who recently resigned as chairperson of the Refugee Appeals Authority, which clearly indicate his unhappiness with the manner in which the Department of Justice, Equality and Law Reform deals with the applications of asylum seekers and refugees? As I speak, Mr. Finlay is appearing before the Joint Committee on Justice, Equality, Defence and Women's Rights to explain his position and the reasons surrounding his resignation. I greatly regret that I cannot be present at that meeting to hear his comments.

I referred earlier to the new race relations Bill under discussion in the United Kingdom and the fact that we could learn from it in respect of the inclusion of the public service within the scope of our legislation. In that context I wish to refer to another item of Westminster legislation, the Northern Ireland Act, 1998, which was enacted to fulfil part of the provisions of the Good Friday Agreement. Section 75 of the Act places a statutory obligation to produce an equality scheme within all areas of administration in Northern Ireland and demands that a practical approach be taken to show that, as far as possible, all administrative activity displays a non-discriminatory and complete fairness bias.

An inquiry was held in the United Kingdom into police activity following the death of Stephen Lawrence, a black British citizen. The findings of that inquiry were, to say the least, damning. However, there is no doubt that this case had an influence on the new race relations legislation in the United Kingdom and the inclusion within its scope of the British public service.

In this country we have had the resignation of Mr. Peter Finlay which has seriously damaged the public credibility of our asylum and refugee procedures. Does this not make the case, in the most eloquent terms, for the inclusion under the terms of the Bill of at least part of that public service which interfaces with accused persons, asylum seekers, migrants, refugees and Travellers?

I referred earlier to submissions made to the Joint Committee on Justice, Equality, Defence and Women's Rights in respect of the Bill. The committee was addressed by representatives from, among others, the Irish Council for Civil Liberties, Pavee Point and the National Consulta tive Committee on Racism and Interculturalism, and a number of interesting points were made. For example, the National Consultative Committee on Racism and Interculturalism stated:

The defence to a claim of discrimination arising out of the provision of a service or accommodation contained in section 15 of the Bill may be over-broad in that it may, in effect, protect discriminatory behaviour and attitudes. This provision allows a person providing personal property, services, or accommodation to discriminate "in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the provision of the property or services, etc., to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the property or services are sought or the accommodation or land is located. The problem here is that the defence is not limited to cases in which the person discriminated against is responsible for the criminal or disorderly conduct or behaviour or damage to property. Thus, if a publican [or restaurateur or barber] could show that the presence of a traveller in the pub would lead to disorderly conduct by other customers, that publican could refuse to serve the traveller.

The representatives further stated, "The Equal Status Bill should not provide protections to discriminatory behaviour and should be amended to reflect the concerns raised above." I would like the Minister to comment on that matter when replying to Second Stage.

The representatives of Pavee Point raised an interesting point in respect of positive action in relation to the Traveller community. They said:

The provision on positive action in section 14 of the new Bill could be strengthened to permit positive action in support of an interest, as opposed to a need, of ethnic groups and also so as to permit the provision of particular medical services to particular ethnic groups. (Section 16(2) of the new Bill protects different medical treatment of individuals but not groups.)

It is not clear whether the terms of section 14(b) of the new Bill permitting certain types of positive action extend to the protection of cultural or other activities restricted to travellers.

The legislation does not permit travellers to register a club limited to travellers under the Registration of Clubs Acts, 1904 to 1995.

They also commented, "Positive Action should be strengthened to permit action in support of an interest; positive action should be extended to the protection of cultural or other activities restricted to travellers and travellers should be permitted to register a club limited to travellers." Will the Minister comment on that in his reply?

We on this side of the House urge speedy passage of the Bill and we hope the Minister will accept our reasonable amendments on Committee Stage. It is an important step in adding to the corpus of law that has been placed on the Statute Book on both sides of the Border to combat racism and discrimination on the nine fundamental grounds laid down in the Bill.

It would be pointless fooling ourselves by believing that racism is not a factor in Irish society. We need only look at the racism experienced by refugees and asylum seekers entering this country in recent years and, unfortunately, official attitudes in that area have not helped. There is also the racism experienced by members of the Traveller community. All Travellers will testify that, in one way or other, they have experienced racism and discrimination. There are at least 22,000 members of the Traveller community in the Republic and there are approximately 3,000 Travellers in Northern Ireland. Travellers are by far the largest minority group on this island and all too often their distinct culture and nomadic identity is not recognised by many in the broader settled community.

Minority ethnic groups experience racism in this country on the basis of their skin colour and ethnicity regardless of their legal or citizenship status, and racism of the sort experienced by women from minority ethnic groups can be very specific.

Globalisation is not just concerned with the globalisation of business, it has meant the mass movement of people from one country to another. In 20 years the ethnic make-up of this country will be entirely different from that which exists today, with probably more than 25% of the population not what could be called "ethnic Irish". I welcome this diversity and I believe we must lay the groundwork for the demographic changes to which I refer. People must realise that we are experiencing, to a lesser extent, what has already been experienced in most other parts of the world.

We can only imagine what it must be like in a reasonably stable African country such as Tanzania which has on its borders a country or countries where stability is not known, where civil strife is always present and where law and order has broken down. This leads to the mass movement of hundreds of thousands of people – in one instance the figure came close to one million – from their homes to become refugees in other countries. That is the experience of many countries in Africa and southern Asia. A large number of recipient countries, which have low levels of economic development, are generous enough to find a place to accommodate people in flight from another country.

The history of cultural diversity in this country has been quite different from that of any other European country. As an island nation, we were cut off from transnational movements of people. Travellers, who are an indigenous Irish community, are Ireland's largest minority ethnic group and they have a distinct culture and history based on nomadism.

In contrast to our neighbours, there has never been large scale immigration into Ireland for the reasons I stated. In Europe there were huge movements of people across national boundaries after the two world wars. The integration was so successful that many people nowadays hardly know it happened. This island, North and South, was always characterised by mass emigration caused by unemployment. That peaked in the 1950s and was a major feature here in the 1970s and from the mid-1980s to the early 1990s.

These factors, combined with restrictive immigration laws – which we practise with great enthusiasm – and the conflict in Northern Ireland, ensured there was no substantial immigration into this country in the past 30 years. We have been insulated, by and large, from the mass transnational movement of people which has been a feature in most other parts of the world. That has contributed greatly towards developing our attitudes. The great pity is that the attitude permeates into the way the Administration expresses itself, which should not happen.

I am delighted to welcome this Bill. It is a pity it took so long to come to this House and that parts of the original Bill were struck down by the Supreme Court. However, we are not permitted to discuss that matter. We will be tabling some common sense amendments, to which I hope the Minister will have an open-minded approach.

The Bill is well overdue, given that it was first initiated in 1997. However, for the reasons outlined by Senator Connor, some matters, which were also in the Employment Equality Bill, 1996, were referred to the Supreme Court. The court held that certain aspects of that Bill were unconstitutional, particularly the notion that an employer could be vicariously responsible for the criminal acts of employees. This had a knock-on effect on the Equal Status Bill, 1997.

As a consequence of the Supreme Court decision, the incoming Government in 1997 had to give great consideration to the new legislation. Although the Supreme Court decided on certain aspects of the Employment Equality Bill, it did not consider the whole Equal Status Bill, 1997. Consequently, the Minister had to seek legal advice on the matter and had to move cautiously to ensure the Bill would stand when it was passed by the Houses. The important feature of this Bill is that it deals with discrimination in the work place or the provision of services outside the employment situation, which is dealt with by the Employment Equality Act, 1998.

Senator Connor mentioned the resignation of Mr. Finlay and its knock-on effect on the debate on refugees and asylum seekers. I am not competent to comment on the reasons for his resignation. However, two senior colleagues of his differed on major issues relating to the grounds for his retirement. Furthermore, from the facts that have emerged, Mr. Finlay, in his role as appeals commissioner, had the highest rate of refusals on appeal – in the region of 75%, which is phenomenally high. I am somewhat concerned about this and I do not know the reason for his resignation. This matter is part of an ongoing debate.

As public representatives and members of local authorities, we have been lobbied by the Vintners' Association about its fears in regard to dealing with the Traveller community. It is accepted there has been discrimination against certain members of the Traveller community in the past. The Bill proposes to address that and to provide penalties for those who disobey the law and continue to discriminate.

Senator Connor made the interesting point that there are about 22,000 members of the Traveller community in Ireland. I was not aware of that figure. It says it is the largest minority group on this island. If the current trend of in excess of 1,000 refugees and asylum seekers arriving in Ireland per month were to continue for three years, they would overtake Travellers as the largest minority group, which is an interesting scenario. Senator Connor referred to that in his learned contribution.

It is one for our learned friends.

The Bill deals with discrimination. There is a very broad definition of discrimination on the ground of disability in section 4. The Bill defines "disability" as including physical disability and "the presence in the body of organisms causing, or likely to cause, chronic disease or illness", which could include AIDS. It also includes people with physical defects, learning difficulties such as dyslexia, emotional stress, mental illness, etc. The definition of disability is far-reaching and takes in a very wide scope.

The Bill provides that it will be discriminatory and contrary to the Bill's theme to discriminate in the disposal of goods and services. For example, people will not be able to refuse to deal with travellers or those with certain skin pigmentation and golf clubs will not be able to refuse to deal with women. That will be outlawed except in regard to wills and gifts in a family context.

The Bill also covers discrimination in educational establishments. There are very valid exceptions to this rule. It is not wrong to decide which school a person can go to, but educational establishments cannot discriminate by saying they will take X, Y and Z but not A, B and C. This Bill prevents educational establishments from doing that.

Hoteliers and publicans were afraid that if this legislation was enacted there would be widespread trouble from sections of the Traveller community. The Bill does not go to the extremes that those in the Vintners' Federation of Ireland had feared. If a person goes into a bar, no matter what his background, and is likely to cause trouble or is interfering with customers, the hotelier or bar owner can warn the person that he will have to leave unless he behaves. If an asylum seeker, a member of the Traveller community or a person with a disability goes into a bar, it is wrong to refuse that person a drink solely because of his background. If trouble is caused or is likely to be caused, however, the publican can give the person a valid reason for not serving him.

The Minister has been criticised because there is a perception that there is widespread discrimination against Travellers. There may be in some areas but in my area Travellers are fairly treated. There have been instances at large gatherings with excess alcohol when they are inclined to be over-robust and unruly and in those circumstances publicans must protect their premises. There must be fair play on both sides. It is wrong to refuse food or a drink to a Traveller or a person of a different colour who walks into a hotel or pub unless there is a reason for doing so. If a licensee fails to comply with that provision there is a mechanism in this legislation where the person affected can object to renewal of the licence. In recent times such objections were treated seriously by the courts. This must be sensibly resolved, otherwise every annual licensing court will be tied in knots with objections. The proposals set out by the Minister deal with the matter fairly.

Cork County Council will soon debate a motion concerning possible discrimination against couples who cohabit or same sex couples who want to acquire local authority housing. This legislation will prevent local authorities from discriminating against such couples.

The debate about discrimination in golf clubs is relevant to this legislation. Women feel they have been discriminated against down the years and that is true in some golf clubs. I do not know much about golf, but such discrimination is wrong and the sanctions to deal with it in the Bill are strong. Any person offended as a result of discrimination in a golf or other club has the right to object to renewal of the licence. All these licences must be renewed annually and it is not expensive for an offended party to go before the licensing authority to object to renewal of the licence on the grounds of discrimination because of gender.

The Bill is far-reaching and covers discrimi nation in many areas – gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. It gives those who are discriminated against statutory redress. As the Minister said in the Dáil, this is a ground breaking approach to equal status legislation and compliments the Employment Equality Act. The greatest challenge to the Bill is the readiness of society to accept change. Local authorities now provide the necessary access for those with physical disabilities. Most local authority buildings cater for those with physical disabilities. Co-action has several branches in west Cork and there are integrated development groups which monitor discrimination against certain sections of society. Almost ten years ago most employers were asked to employ wheelchair personnel on a temporary basis to give them training and work experience and it has worked well.

Senator Connor referred to widespread discrimination against refugees and people of different religions and races, be they black, Africans or east European. This legislation will make a full impact only when society accepts change and becomes more broad minded and tolerant in its approach to other religions and races, including Travellers. If society does not accept this there will be a struggle because, regardless of what the law says, enforcement will be difficult. That is the biggest challenge we face. A parallel can be drawn with speed limits. People in towns and villages may erect speed limit signs and ramps, but if the attitude of society does not change no amount of legislation or community effort will prevent speeding because it would be impossible to place Garda officers at every corner and junction.

Society must come to terms with change. I was my party spokesman on justice when the then Minister, Máire Geoghegan-Quinn, introduced legislation to decriminalise homosexual acts between consenting adults. That legislation was a huge step forward. While disheartening remarks were made on it from some parts of the House, it has been broadly accepted. Similarly, if society accepts there are problems in the areas covered by this legislation and we move with the times, then its provisions will be successfully implemented.

The Employment Equality Act provides for the appointment of employment equality officers. This Bill contains measures to penalise those who fail to comply with its provisions. While legislation can be placed on the Statute Book, we must also educate our young people and encourage society to think beyond the narrow parameters of the past.

This is an important Bill and I am sure it will be broadly supported by all sides of the House. I welcome its provisions. It is such a ground breaking measure that it will take a considerable time to debate it fully. I thank the Minister for introducing it and I wish it success. I am sure there will be broad contributions by many Members and that amendments will be proposed on the later Stages. The legislation has already been tested before the Supreme Court, which imposed some restrictions, and it returns to the House in amended form. It is a welcome step forward. I compliment the Minister and his officials and I also compliment those involved in preparing the original 1997 Bill.

The legislation brings into force provisions that have been enacted in other EU countries. We are the last to act in this regard. I wish the Bill a speedy passage through the House.

I call Senator Norris. I understand Senator Norris and Senator Henry wish to share time. Is that agreed? Agreed.

I welcome the Bill. When I entered this House in 1987 such a Bill would have been unthinkable. That shows how much we have moved since then. Much has been said about the earlier Bill, which has now been cured of its constitutional defects, and I do not intend to rehearse too much of that. The Bill is welcome, but Senator O'Donovan has wisely said that while one may legislate, legislation merely forms a headline. People's attitudes and frames of mind need to be looked at and attacked.

With regard to the question of disability, it is regrettable that when the Bill was before the other House CIE commissioned 150 buses that were not wheelchair accessible. For a public agency to do something like that sends a very poor signal. However, as that moment has passed there is not much point in going back over it. Nevertheless, we must ensure that it never happens again because it is such a slap in the face for the Oireachtas.

I am disappointed that the definition of "disability" has not been changed, although strong reservations were expressed about it, especially with regard to the use of words such as "malfunction", "malformation" and so on, so that we are left with a medical definition of "disability" which appears to place people, even linguistically, at a certain disadvantage. Perhaps the Minister will look at that again.

Section 15 provides that a proprietor of a public house has the right to discriminate if he or she feels that other customers will be offended. That is a dangerous road to go down because it goes close to the idea of guilt by attainder. There need not be sufficient cause for offence. The proprietor may act on an instinct that his customers may not like, say, people with red hair and so will not allow any to enter the premises. That is wrong.

I am not against discrimination. It is foolish for people of a liberal persuasion like me to say we are against discrimination. We are not. We discriminate every day and for very good reason. When I ran a discotheque geared to raising money for a political cause in which I believe, we did not discriminate on any other basis except behaviour. We did not discriminate on appear ance, class, race, sex or even sexuality. We were so broad minded that we let heterosexuals in to dance. I though that was wonderful. However, we ruthlessly discriminated on the basis of behaviour if we felt that behaviour was anti-social, dangerous, threatening or placing our customers at a disadvantage. I make no apology for that – it is always reasonable.

However, I do not like the idea of discrimination at second remove. It is wrong to refuse to admit somebody to a premises on that basis. I speak with authority here because I suffered from that. I was in a pub in South Anne Street 25 years ago with a friend, a lovely person and fairly flamboyant. The barman refused me a drink. I asked why and was told it was because I was with this person. I said I did not allow barmen to choose my friends for me. I presented my card and said I would return at 11 o'clock the next morning and told the person concerned to have the owner present. When I returned I told the owner I would object to his licence or he could give me an apology and a drink. He did so and I told him it was the last drink I would have in his pub. I have not been in it to this day.

My point is that I have the right to object. We are not giving anybody a great benefit when we provide that if people in golf clubs are discriminated against they have the right to object to the licence. Of course they have. Everybody has that right. We are not giving anybody anything new in that. Any member of the public can object to a licence. Golf clubs and other clubs should be put on notice that they are not permitted by law to discriminate in this fashion.

I do not suffer from the affliction known as golf and I give thanks to God every morning that I am not a golfer, but there are people who suffer from it and I pity them. Some of them are married to each other – that is even worse. Take the case of a women married to a golf addict who does not like the treatment she is getting and decides to object. Can one imagine the marital harmony that will create in the home? Clubs should not be allowed to discriminate at all.

I have raised the thorny issue of marriage. I am very grateful to Senator O'Donovan for being so sensitive to the issue of sexuality and sexual orientation. It is refreshing that these phrases are inserted naturally in legislation without the blinking of an eye, given the battles we had in the past to have them included. There is no facility for gay people to marry or to have their relationships recognised. Therefore, they are at a disadvantage. In his speech in the Dáil – he repeated it in this House – the Minister said that the comprehensive definition of disability services in section 2 includes services and facilities of any nature, including access to and use of any place, banking or insurance services, facilities for entertainment, recreation or refreshment, cultural activities, transport or travel and professional trades services, and does not include services provided under contract of service, services not generally available to the public, services generally covered by the Employment Equality Act etc. I assume this could be construed as saying that the provision of a marriage licence through a registry office is a service under the terms of the Bill. If that is so, the Bill permits people to seek a marriage licence from a registry office, and the registry office would be breaking the law if it did not provide one. One could argue that marriage is a facility for entertainment, recreation or refreshment and that it would be illegal to discriminate against gay people who apply for a marriage licence. I am glad to see my colleagues smiling, but there is a serious point.

I am glad Senator O'Donovan raised the issue of housing. Gay people are treated as single and because of that are at the bottom of the pile in terms of housing and cannot get local authority housing whatever their financial situation. This is a great pity.

I would like to know whether the issues I raise are contemplated in the Bill. If not, is the Minister serious – I think he is – when he says discrimination occurs when a person is treated less favourably than another person is, has been or would be treated, or where a person is treated less favourably because of his or her association with the person to whom the discrimination grounds apply, or where a requirement to comply with a condition has a disproportionately adverse effect on a particular category of persons and this requirement cannot be justified as being reasonable in all circumstances? I think we are making a very good case for recognition of gay relationships. I believe it may be a case of what is called in the Roman Catholic Church "indirect cause" or "multiple effect", namely, that it provides for something not explicitly stated. It would be lovely if this Roman Catholic theological notion sanctioned the recognition of relationships. That day will have to come. Recently it came in France, and recognition already exists in Holland, Denmark and many other countries. It is not an extravagant or absurd demand, it is simply at the core of the Bill, that is, the requirement to be treated as ordinary and equal citizens.

I well remember the day Senator O'Donovan spoke about when Máire Geoghegan-Quinn, a member of the Government party and a splendid Minister, introduced legislation decriminalising homosexuality. I remember there were some mean-minded attempts to create a discriminatory age of consent. I was so heartened when she said she would need good and cogent reasons in order to discriminate against a citizen of the State and that no such reasons had been provided by the other side of the House. This is a very good approach. The treatment of gay relationships, with very clear and practical consequences, is highly discriminatory and has to do with the perceived status of gay people and their capacity to form relationships.

I have already mentioned buses, and I know that some taxis have been specially adapted, with licences given at a reduced cost. Some taximen very honourably use the licences while others do not, which is very regrettable. I thought it was absurd and rather offensive for a public official to complain about the hygiene of taximen. In defence of taximen, recently I saw a taximan on O'Connell Street, in an old taxi which was not adapted, assisting a disabled person into his taxi, carefully folding the wheelchair and trying to put it into the boot of quite an old car. I stopped my car and said, "Well done, I am proud of you as a citizen of Dublin for doing so".

That is unique.

It is not entirely unique. It was an awkward thing for the taximan to do given the ancient car he had.

From the way the Senator spoke we thought he put the old woman in the boot.

No, it was not Dr. Henry – the Senator is the old woman in the shoe.

It is excellent that there is provision for an equality authority and I am glad there is provision for funding. However, from the beginning there should be clearly defined lines of contact with all the specific organisations concerned, including women's organisations, organisations for the disabled and those representing gay people and Travellers. It is only with that kind of liaison that we will learn what is happening at the cutting edge and that the agency will fulfil its proper function.

I welcome the Bill, although I have some reservations about parts of it. I had the great satisfaction of seeing the last Bill struck down by the Supreme Court. Senator O'Toole and I were quite convinced that it would be declared unconstitutional. It was not declared unconstitutional on the grounds we suggested, but I am sure if the Supreme Court had looked more closely at the provisions to which we objected, it would have thought the same.

I take on board the points made by Senator Connor about racism. It is unfortunate the Bill is so urgently needed in this context. When we had no foreigners here we were extremely non-racist, but now that we have a considerable number of people of other races in the country we get reports almost on a daily basis of people being harassed or in other ways discriminated against, which is most regrettable. Some people have come here as refugees or asylum seekers, and one must admit that despite the best efforts of many people in the health boards, they are getting the fuzzy end of the lollipop in many cases as they have difficulty in securing accommodation and are harassed in the street and life in general is not very easy for them.

Recently I heard a women on the radio whom I thought was very honest when she said that a few years ago if she met a black man on the street she thought he was a doctor, but now she thinks he is a refugee and her attitude towards him is totally different. Of course the person could be a refugee doctor, and I assure the House there are some in the city.

To my sorrow I have met some children of programme refugees who have told me they feel very much discriminated against. It is very sad that we brought them here, offered them a home and yet our behaviour towards them is apparently not as welcoming as it should be. A surprising number of these people in their 20s are not employed and they feel it is because of their race.

A third group which should be paid special attention are children from South America, the Far East and Africa adopted by Irish couples. We must be aware that these children could easily be the victims of racism. Recently I had an extraordinary experience when speaking at a school celebration. The school's headmaster made an excellent speech in which he referred to young people growing up with integrity and treating people properly. I continued in this vein and spoke about treating people in a decent manner. I thought it had gone down well but at tea afterwards a man approached me and said that it was all very well to say that people should be treated equally and that they are all the same, but that I should have said that Romanians were not the same and did not have a work ethic. I cannot imagine anyone in their right mind expecting somebody to announce at a school, which could have adopted Romanian children on its roll, that all people are equal but one group should be singled out. I was absolutely stunned that anybody could even think like that. We are not doing enough to try to combat racism in Ireland and more could be done in schools.

The Bill could encourage a more proactive approach to defeating discrimination. Many of its provisions require complaints to be made and it would be nice if a provision to promote equal treatment were included. Senator Connor referred to the non-inclusion of statutory bodies. That is unfortunate and I wish planning authorities were included. I live in Dublin's south inner city and already there is segregation in some areas. For example, Romanian people mainly reside on certain streets while Nigerians predominate on others. Planning authorities could quite easily get a notion that it is best to keep people segregated. Segregation was used successfully in many other countries to discriminate against certain people and I am concerned about that. Differences could develop in schools and all of us are aware of the horrible developments in other countries as a result of segregation.

With the best will in the world, immigration officials are the same as us and if we are inclined to be racist I cannot say whether they might not be. A young woman of my acquaintance has a child who is not quite as fair as her and when the child was returning from a visit to its father in London, it had a very difficult time at immigration. Such small incidents makes one realise that we have a long way to go to be as tolerant as we should be.

I will conclude by referring to sexual harassment and golf clubs. I am glad section 11(5) has been included because it can be difficult sometimes to definitively say certain behaviour is sexual as opposed to being physical abuse. This seems to be covered in the legislation and it can be discussed further on Committee Stage. Section 11(5) states: "Harassment takes place where a person subjects another person ("the victim") to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her." It is good that such a strong subsection is included because referring only to sexual abuse and not physical ill-treatment sometimes ignores an area which is extremely distressing to the victim, but it may be difficult to prove if only sexual abuse is covered. The Minister will be aware of our efforts to have physical ill-treatment included in another Bill.

Golf clubs are extraordinarily foolish to discriminate in the manner that they do. I had the good fortune to be one of the first two women members of the University and Kildare Street Club. The late Ms Grace Carroll and I behaved so well that within a year or two the club desperately sought other women members. I was constantly asked whether I could find more women members because we behaved well and paid our bills. Golf clubs would be well advised to think of their pockets and consider how useful it would be to have well behaved women members who pay their bills. It is such a pity as many organisations have realised that people can be admitted as members on an equal basis.

Like Senator Norris, I have the good fortune not to play golf as I believe in the old adage that it spoils a good walk. I have great sympathy for women who work all week and are good golfers but cannot play at weekends. It is a pity that people are excluded on such a childish basis. I hope the boards of golf clubs will come to their senses. Senator O'Donovan stated that laws can be changed but not people's attitudes. If the Fitzwilliam Lawn Tennis Club can change its attitude, any club can.

I participated in a debate on the original Bill in the Dáil on 27 February 1997. At the time, while I welcomed the Bill and all of us recognised its necessity, I was pessimistic and said that it had been rushed because the then Minister, who had done a good job, wanted to get it through the Houses of the Oireachtas before the pending general election and, therefore, there were flaws. I stated:

. . . we are allowing some elements to fall between the cracks. It would appear that some of their implications have not been given sufficient thought.

I questioned some provisions which might have been unconstitutional, but I did not realise that I was prophetic. However, the then Minister accepted amendments which improved the legislation. The Minister has accepted amendments to the current Bill in the Dáil but it has been proved that if legislation is rushed, it is often flawed. Despite the fact that there has been a long delay, this legislation was worth waiting for.

It was also quite extraordinary that in 1997 the emphasis was very much on the Travellers versus vintners issue and it was perceived that undue emphasis was placed on that in the consultations and subsequent debate on the legislation. Fortunately, the emphasis has moved from that issue to discrimination against people with disabilities, which was my main focus. It has been recognised that Ireland must fulfil its international obligations and issues must be addressed, including human rights, under the terms of the Good Friday Agreement.

However, because of the change in our society we are even more conscious of the discrimination against our immigrant population. The Equal Status Bill, 1997, was introduced shortly after a book had been published by Fr. McGréil entitled Prejudice in Ireland Revisited. It illustrated the degree of prejudice that existed in society. If he were to rewrite that book now the emphasis would be different. We do not want or need intolerance and discrimination in our society. This legislation, in tandem with the Employment Equality Bill, 1999, must be a mainstay in ensuring that intolerance is eliminated.

I agree with colleagues who stated the legislation is fine but attitudes are the problem. I frequently hark back to the fact that the enactment of much of the legislation relating to women's rights would have taken much longer were it not for Ireland's membership of the EU. Some of it might never have been introduced. There is a big gap between introducing and enforcing legislation and changing attitudes, which is a major challenge.

I regret that some of the provisions of the Bill were not acceptable to the Supreme Court. The Minister mentioned the main changes that were made. The 1997 Bill required service providers to make reasonable accommodation, including the provision of special treatment or facilities for people with disabilities, unless such reasonable accommodation would give rise to undue difficulty. Unfortunately, that was found to be unconstitutional and now the obligation to make reasonable accommodation is subject to a nominal cost threshold. I regret that.

I would like to focus on the issue of people with a disability, although other colleagues mentioned areas such as transport and so on. I am delighted to hear that Senator Norris saw one incident of a taxi driver helping a person with a disability. I have experience of this issue because my mother was and my father is confined to a wheelchair or, as people with a disability prefer to say, he is a wheelchair user. Trying to get my father anywhere is a nightmare if we cannot transport him in our own car. Despite the many licences that are available, it is very difficult to get a suitable taxi for a person with a disability. I have personal experience of ringing six companies to get a taxi that would take a wheelchair. The whole process, which was extremely frustrating, took most of the day and was very demeaning for my father. It totally disrupted our family life for that day and that is grossly unfair.

There is an excellent Cheshire Home facility in Monkstown, in my Dún Laoghaire constituency. I have seen active discrimination against its residents, who are very independent people. They have been discriminated against in pubs and shops and I am aware of the huge difficulties they face in terms of mobility. The problem of wheelchair access to restaurants, pubs and so on must be addressed, and it is so easy to get around these issues.

This is real "mother-in-law research" but these are the issues that affect people with a disability. A friend of mine who is confined to a wheelchair wanted to go out for an evening's entertainment with the family. They eventually found a restaurant that had wheelchair accessibility only to discover that the toilets were two floors up. That is utterly ludicrous. How could somebody in a wheelchair possibly manage such nonsense? That is something that should be outlawed because it is utterly disgraceful.

On the issue of access to transport, quite apart from taxis, the buses have been mentioned already, and I do not want to rehearse the issue. A person with a disability finds the use of public transport virtually impossible – that goes for trains, buses, taxis, etc. I hope that when the Bill is enacted, it will be enforced. I accept Senator Henry's point about the individual having to make a complaint. I would prefer if we were more proactive, to use that appalling word, in ensuring that facilities are available for people with a disability.

In 1997 I referred to the development plans for county councils and the reason it should be essential that all the elements that would make life easier for people with a disability should be contained in them. The 1992 building regulations allow for this but they are not enforced. We may enact laws but if we do not enforce them we are insulting people with a disability. This legislation was not enacted because it was rejected by the Supreme Court, but everybody knows the difficulties that have to be addressed. Nevertheless, there has not been the preparation that should have been made over the past three years. That is disgraceful and I blame local authorities in that they are not sufficiently aware of these difficulties. I am not convinced that all local authorities live up to their obligations in that regard, despite opinion to the contrary.

In 1997, I said that this was colloquially known as the Travellers versus the vintners Bill. We have moved on from that but we continue to see a great deal of discrimination against travelling people. I am glad that they have evolved groups within their own ranks such as Pavee Point and they are now aware of their rights and their responsibilities. Unfortunately, there has been bad publicity surrounding rows at weddings, etc., but we must not generalise in that regard. We must be aware of the rights of travellers as well as other groups to the provision of services as stated in the Bill.

I want to touch on the issue of golf clubs. I would prefer to see some penalty other than a licence not being renewed, although that hits clubs where it hurts – in their pockets. We have come a long way on this issue. When I was a member of the women's rights committee in 1991, we wrote to all the golf clubs. A considerable proportion of them did not even bother to reply, after all, we were only the women's rights committee of the Oireachtas. Times have changed since then and clubs now realise that a sanction can be imposed and their attitude will be different. As Senator Norris pointed out, however, one could always challenge the renewal of a licence. I am sorry that a more draconian sanction cannot be imposed. Perhaps that is because I felt so annoyed at the golf clubs ignoring an official committee of the Oireachtas.

The stories of discrimination against women in golf clubs are legion. I have had only a brief flirtation with golf but I am aware of incidents of discrimination from friends of mine, particularly those who live in the country. A friend of mine who was out at work all day discovered that the local golf club did not allow women to play golf after 5 o'clock in the evening during the summer because the men would be coming home from work and would want to play. I think that rule has changed in that particular golf club and, I hope, in every golf club, but it was a long time coming. For many clubs, it was the threat of legislation such as this and the availability of sanctions that made them act. Unfortunately, unless there is a threat of sanction under legislation, it is difficult to change actions, never mind attitudes. I hope we will not see many clubs having their licences revoked as a result of discrimination.

I am not 100% sure about the provisions in the Bill in relation to sexual harassment. I had reservations about them in 1997 and they have been changed slightly. However, I still have difficulty with the concept of the reasonable person and the definition of sexual harassment and harassment generally. I am open to correction on this and I hope the Minister will refer to it when he replies to the debate.

There was a reference earlier to accommodation. Senator O'Donovan mentioned the motion being brought before Cork County Council next Monday in relation to couples who do not fall within a neat category for local authority housing purposes. I am proud that my party colleague is putting the motion forward. It will be interesting to see the reaction to it. The fact that there is a great openness to accepting the motion indicates that there is a great deal more openness than previously. However, it will be interesting to see if there is a backlash against it. The jury is out on it at present.

There is a sense of déjà vu about the provisions of the Bill, which I support. I wish some elements were a little stronger but I am aware of the constraints which have been put upon the Minister, particularly in the context of the Supreme Court's findings. My wish is that society would have attitudes that are ahead of legislation and that legislation would try to catch up with them rather than the other way around. I hope society will develop a tolerance for all elements within it and an openness to change in the future.

Mr. Ryan

Ar dtús báire cuirim fáilte roimh an Aire. Tá a lán ama caite agam féin agus aigesean le chéile le déanaí agus tá sé in ndán dó rud éigin eile a dhéanamh agus ansin a éalú as an Teach seo chomh tapaidh agus ab'fhéidir leis. Caithfidh mé fáilte a chur roimh atá sa Bhille, áfach. Mar a dúirt an Seanadóir Keogh, b'fhéidir go mbeadh duine ag súil le níos mó ann ach tá fáilte roimh an mhéid atá ann. One cannot but welcome this legislation. I do not mean to cavil but to sound a wake up call to everybody in the political system by pointing out that conventions such as the UN Convention on the Elimination of All Forms of Racial Discrimination, which dates from 1968, should not have to wait so long to be ratified by the State. It would be interesting to get a list of the international conventions we have signed, the dates we signed them and when it is proposed to ratify them. We appear to be a little slow in this regard although a few Bills have come before the House.

It would be equivalent to the priest at Mass denouncing to the congregation those who do not go to mass for me to criticise this Minister for the fact that other conventions have not been ratified when he is doing the job in this legislation. However, there is a problem in legislative structures when a convention is left unratified for 32 years and a reservation is entered with regard to another convention on the rights of women. This does not speak well for us. Neither House of the Oireachtas was so busy in the past that it could not have ratified them and it is well past time that it was done.

In an ideal world, legislation such as this would not be required. In a world full of tolerance and with the values advocated and articulated by the speakers in this debate, people would not discriminate against other people on spurious grounds which have nothing to do with any objective reality either threatening, offensive or to do with something about which people deserve to be made feel lesser members of society. The truth is, however, that every ground listed in the legis lation is a ground on which, in some way great or small, more often great than small, citizens of Ireland have been discriminated against in the provision of various services and in access to those services.

All sorts of agencies and, to some extent until recently, the State were far from being models of tolerance – that must be said. I was not a Member of the Seanad when a previous Minister for Justice, Máire Geoghegan-Quinn, courageously ploughed a furrow on the issue of homosexual law reform. That moved Ireland from being perceived as extremely illiberal to being to the forefront of sensible, practical, liberal common sense. I have no patience with excesses of liberalism any more than with any other type of excess. However, what was done in that case and the subsequent succession of legislative measures, which have copperfastened various minority groups' rights not to have people incited to hate them, are building blocks in the recognition that we are a diverse society.

We are obviously diverse in terms of gender and we are now diverse in terms of unorthodox family structures. Many of us might find many of the unorthodox family structures a little regrettable and we might wonder about the well-being of children living in them. However, they exist and society must recognise them. We have to live with the society we have. Many of the changes in our society are the negative consequences of many of the good things that happened in that society.

This country has a better record with regard to discrimination against people on the ground of religion than many cardinals of liberal Ireland would have us believe. It was not a country in which it was impossible to grow up as a member of a minority religion. One would sometimes have the impression that until about 1964 this country was the European equivalent of Saudi Arabia or Iran or somewhere similar. It is not and never was.

It was a country which, in the profoundly illiberal 1930s, put in place a Constitution which vigorously asserted freedom of speech, freedom of religion and freedom of conscience. It was qualified to a degree but not to a degree to which anybody could object. We should not in this context, therefore, flagellate ourselves too much. Given our relatively new independent status and what that entailed, and given the climate in Europe in the 1930s, the 1937 Constitution is a remarkably liberal document. I would be less than enthusiastic about a new one which would emanate from existing State organisations. I would not be as convinced as many others that a new Constitution would contain within it the capacity the old Constitution contained for the citizen to defend himself or herself against the State.

That is why it is regrettable that an otherwise progressive, forward-looking and liberal document was peculiarly interpreted – I use the word advisedly – by their lordships in the Supreme Court. The use of the right to property as a justification for striking down progressive, sensible legislation, which was essentially the grounds used, was a profound mistake on the part of the Supreme Court. We must pass this legislation to ratify certain international conventions, but as I have said on previous occasions, the remedy in the longer term is to restore a proper balance which defines the common good in such a way that it includes the good of those who are disabled and so that the rights of property may be constrained. I would be concerned that the requirement for taxi drivers in Dublin, however reluctant they appear to be to provide the service, to purchase wheelchair accessible taxis would result in some smart alec pursuing the matter to the Supreme Court on these constitutional grounds and their lordships, who fortunately are a much changed bunch now and on balance for the better, are coming to the same conclusion.

I am also concerned about planning regulations and the planning process. The Simon Community, an organisation with which I am involved, went through the planning process and came into conflict with people developing a hotel on a neighbouring site. Objections to planning permission were raised on the grounds that the provision of services for the homeless next door to a hotel would undermine the capacity of the hotel to do its business. If the logic of how this legislation's predecessor was found to be unconstitutional and how the employment equality legislation was similarly struck down were to be extended a fraction of a millimetre further, one could enter extremely difficult territory concerning the location of services for any group, such as Travellers or a social club for gay men or women, because of the argument that the provision of those services and the insistence of the State in allowing them to be provided in a certain place would arguably cause a collapse or a fall in the value of surrounding property. The solution to copperfasten against that is a constitutional amendment to make it clear that the common good provision of our Constitution extends to the protection and assertion of the rights of people who are disabled. I invite the Minister to consider that in the medium term.

Much of what I wanted to say has already been said and I do not want to repeat myself excessively. While Senator Keogh is perhaps correct about the wording of the sections on harassment, people in charge, especially of educational and other establishments, would want to be alerted to the scale of their responsibilities under the Bill and that it is their obligation to ensure that all reasonable steps are taken to avoid sexual harassment occurring. This would especially be the case for anyone working in third level education. Any one working in second level education who becomes involved in what would be classified as sexual harassment is involved in something much more offensive – sexual assault on children who are mostly underage. In third level education, where the students are adults, the issue of sexual harassment is a matter of genuine concern. In some areas, especially the areas of science and technology with which I am familiar, women are relatively new participants and many working in those areas could do with significant education and guidance from their employers and management about the new realities of the correct way.

The phrase "politically correct" has been devalued but there is a logic to it. There is a correct way to talk about and treat people. One of the things which has grown from this understanding of correctness, even political correctness, is the unacceptability of what used to be regarded, in male circles especially, as a reasonable bit of fun. A great deal of what is now clearly classified as sexual harassment was treated by many men, some considerably younger than me as well as most of those who would have been older, as harmless fun. What would have been treated as such by an employer vis-à-vis a female employee is now to be made illegal. That is correct and we owe it to employers to remind them not only what they must not do but also that they must take reasonable steps to ensure that their employees do not do it either. That is something which would need to be hammered out in great detail.

I am glad discriminatory clubs will suffer some penalties. I have never understood this peculiar attitude and the logic or rationale behind it is beyond me. I have this vision of men almost in a state of refugee status seeking refuge from half the human race and claiming some type of constitutional or legal right to do so in conditions of their own choosing.

While I welcome the Bill, I have a few questions which the Minister might address. We discussed one of these during the debate on the Employment Equality Act and I am still not entirely persuaded. It is: "As between . . . . . two persons, the discriminatory grounds . . . . . are . . . . . that they are of different sexual orientation". As my holy mother, the Church, would say, there is a difference between having a sexual orientation and being sexually active as a homosexual. There is nothing in the Bill or in the Employment Equality Act which would copperfasten the right of a homosexual couple to live together and have a sexual relationship. We are simply saying that the orientation cannot be discriminated against. It is perfectly reasonable to argue that what is being said is that, as long as a person is celibate, they cannot be discriminated against. I do not believe that is the intention, nor that it would fulfil our obligations under various international conventions, but that is what the wording means. I cannot be discriminated against on the grounds of my marital or family status, but a gay person cannot be discriminated against on the grounds of orientation. Nowhere does it say that they cannot be discriminated against on the grounds of their activity.

I am not talking about a high camp Quentin Crisp lookalike providing entertainment but about the late couple who provided this country with such wonderful theatrical entertainment at a time when most people would not pronounce the word homosexual, let alone admit that we were turning into national heroes two men who were openly and actively gay. I am not persuaded that this legislation will protect such a couple from discrimination because it is based on their orientation, not their activity. The orientation, as the Catholic Church will say, is not objectionable. It is to the physical expression of that orientation that most Christian churches, particularly the Catholic Church, object. We do not protect people from discrimination in this legislation if that discrimination is based on the physical expression of their homosexual orientation. I have been concerned about that since the Employment Equality Act was passed in this House.

I am not sure what section 3(3) means. It states: "Treating a person who has not attained the age of 18 years less favourably or more favourably than another, whatever that other person's age, shall not be regarded as discrimination on the age ground." You have to read it a few times to figure out what it means. I am sure the Minister has read it many times and knows what it means. Perhaps he could give us examples of what it is meant to protect us from because obviously there is a reason for it. Sometimes it would be wrong to discriminate between people who are under 18 years of age and those who are over 18. However, the phraseology is wider than that. It appears that one could discriminate between two 17 year olds or between an 18 year old and a 17 year old.

Section 5(2)(g) refers to “differences in the treatment of persons on the gender ground where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender”. One can understand this in places such as public toilets, swimming pools or dressing rooms. However, the language could be more precise. Section 5(2)(i) refers to “differences in the treatment of persons on the gender, age or disability ground or on the ground of race, reasonably required for reasons of authenticity, aesthetics, tradition or custom in connection with a dramatic performance or other entertainment”. I know what is intended but it should be made more explicit that this applies to people participating in the performance, not to people attending the performance.

Perhaps the Minister could clarify the position where an employee is directed to discriminate. What is the employee's legal obligation? Should he refuse to carry out that instruction or should he carry it out and let the employer take the blame? Will the employee be protected?

Since sections of this Bill enable us to ratify a convention which is 32 years old, why is it not possible to indicate that it will be ratified within a short period of its enactment? Section 48 states that this Act shall come into operation on such day as may be fixed by order made by the Minister, and different days may be so fixed for different provisions and for different purposes. We should have included a reference in the Bill that the convention will be ratified within a short period of its enactment.

I thank the Minister for bringing forward this legislation. I recall the legislation first introduced in 1997 which was found to be unconstitutional. I applaud the Minister for his efforts in bringing this Bill to the stage we are at today because it would have been easy to set it aside. The Bill seeks to prevent discrimination under a wide range of headings outside the employment area. I will concentrate my remarks on the area of disability.

Legislation is only as good as our ability to implement and monitor it, particularly when people may choose to ignore it. Many Governments made promises and commitments to remove discrimination from our society. However, many of them fell short of what is reasonable and acceptable in a civilised society. People with disabilities have recently complained to us about the lack of commitment they feel we have shown in this regard. They feel we have failed to effect the necessary changes to ensure accessibility at all levels and proper integration to society. We are all aware of the protests by disabled people at the gates of Leinster House. They have found their voice and they will not go away.

It is important that we use language which reflects the rights of people with disabilities so they are treated as full citizens and included in all aspects of society. In order to achieve this, we must include them in the decision-making process. I applaud the Minister for setting up the disability authority. For the first time people with disabilities will be able to speak for themselves at a body which is sponsored by the Government. I am sure that people with disabilities are delighted to be able to express themselves at this forum.

Access is the gateway to full participation for people with disabilities. This does not only mean access to buildings, parks and beaches but to the right to travel freely, to education and housing and to live independently if someone so wishes. The frustration and anger felt by people with disabilities as a result of inaccessible buildings was evident from the submissions made to the Commission on the Status of People with Disabilities in 1997. The introduction in 1991 of the building regulations with a section on access for people with disabilities, which referred to new buildings and significant changes to old buildings, raised the hopes and expectations of people with dis abilities. Unfortunately, those hopes gave way to a weary resignation when they did not materialise.

Despite strong pressure, the pace of change has been extremely slow but this is not the fault of a particular Government. It is a matter of changing attitudes and opinions on how we should go about it and how swiftly we should move on. The approach was not aimed at establishing an enabling environment. It was done in a piecemeal fashion and we made special provision for special cases. The words "reasonable provision" were used and could have been interpreted to suggest that it was reasonable to deny access rather than allow or give access. The wording was too ambiguous and it left too much room for the building regulators and designers to place their own limits on a situation as they saw fit.

The Minister mentioned transport. Providing transport that would be more accessible is not of interest only to people with disabilities. It is of interest to a number of people, particularly the elderly and women shopping with children and trying to get on or off buses with prams. Ireland falls well behind our European counterparts in terms of accessible transport. I will not labour the point that was raised by Senator Norris and others in relation to the 150 buses. I did that on the Order of Business some time ago. Nor will I labour the point made by Senator Finneran last week on the Order of Business about the disabled person travelling by train in the guard's van. That is degrading and unacceptable. The more speed we introduce into this issue the better.

Transport is a key issue to people with disabilities because they want to integrate into society. Without transport, accessibility to education and all the other elements we have talked about cannot be achieved. In the past we have heard the argument about the cost of adapting rolling-stock but that is no longer a reasonable argument. I know this is not the Minister's bailiwick. It reflects on all Departments that have a commitment to financing the various areas that need to be financed to address this matter. If we stand back from the issue on the basis that we cannot afford it – and I know it is a costly thing to put right – we will never get it done.

Section 4(2) frightens me somewhat. The Minister referred to it in his speech where he stated that he is constitutionally bound on it. It states:

A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, . . . .

Is "nominal cost" defined or can people use their own definition of it?

The Commission on the Status of People with Disabilities made recommendations on transportation. It referred to purchases of new and older public transport vehicles, including those ordered by private operators, and suggested that they should be accessible as and from 1 January 1997. Three years later that has not become a reality. I am not sure that transport providers are aware that their licences could be revoked if they do not adhere to that recommendation. I do not believe the law is there to be invoked.

The number of people with disabilities in education is estimated to be 5% of the school going population. That figure is open to question because the information available may not be accurate. It is the policy of the Department of Education and Science to educate as many children with disabilities as possible in mainstream schools. That is a welcome development in recent years. In bringing about that kind of integration we must have the resources to go with it. I know the position and it has improved. I know of a young girl who was allowed into a secondary school a few years ago but the resources to facilitate her did not exist. She had to rely on the good nature of her friends to do something as personal as toileting her. That is not acceptable and I know that facilities have greatly improved.

Independence is an important aspiration for all of us but it is more important for people with disabilities. It could be defined as dignified self-determination, with or without the help of others. Technology and telecommunications can play a major role in helping people with disabilities to secure equal status. We should be able to assist in that regard. We can assist people with hearing impairments to communicate. We can help people with visual problems to read and use computers. We can also help people who are physically impaired to live independently if we have commitment, resources and goodwill.

Technology is available now but the problem is to get the resources to bring it to people in the community. We have achieved that in some respects because we have relied on European schemes. Unfortunately, they are set over two or three years and then a vacuum develops. Something that has been created and is of benefit to people with disabilities falls down because the resources are not there at domestic level.

We should continue to do all in our power to highlight the needs of the disabled. The Minister has endeavoured to bring about a better quality of life for people with disabilities. We only have to look at the legislation that he has brought through this House in the past two years to be convinced of that. I look forward to the passage of this Bill through the Seanad and to continuing improvements for people with disabilities and the marginalised in our society.

Like previous speakers, I welcome the Minister to the House. I am glad to have the opportunity to comment on this complex legislation. Members have said that the Bill is long overdue. However, due to its complexity everyone wanted to ensure that it was right. I compliment the Department of Justice, Equality and Law Reform on its input. Not long ago it was accused of not being a friend of the public but in response the Minister cited several pieces of legislation that had been introduced. This Bill is another typical example of the Department and the Minister coming up trumps.

I support the provisions of this far reaching measure which has the potential to affect many areas of Irish life. It replaces the Equal Status Bill, 1997, which the Supreme Court found unconstitutional. The thrust of this measure is the same as the 1997 Bill but it has been appropriately amended to meet the requirements of the Supreme Court.

The Bill represents a commitment to the implementation of the Good Friday Agreement. It is necessary to enable Ireland to ratify the UN convention on the elimination of all forms of racial discrimination and to lift our reserve on the UN convention on the elimination on all forms of discrimination against women. The Bill provides for the promotion of equality and the prohibition of discrimination, harassment and irate behaviour in non-employment areas and for remedies and enforcement measures. It complements the Employment Equality Act, 1998, which outlaws discrimination in all areas relevant to employment. The specific grounds on which it prohibits discrimination are gender, marital and family status, sexual orientation, religion, age, disability and race, including colour, nationality, ethnic and national origin and membership of the Traveller community. The Bill outlaws direct and indirect discrimination on these grounds regarding the provision of goods and services, accommodation, disposal of premises and education. All services generally available to the public are covered, including facilities for refreshments and entertainment, credit facilities and transport services.

Complaints of discrimination, other than discrimination by registered clubs, may be referred to the Office of the Director of Equality Investigations, established under the Employment Equality Act, 1998. The director, having investigated the case, can award compensation of up to £5,000 and/or require the taking of a specific course of action. Decisions of the director on equal status cases may be appealed to the Circuit Court. Cases involving registered clubs will be heard by the District Court, with an appeal to the Circuit Court. Under the Bill, the remit of the Equality Authority will also include equal status matters.

Section 3 defines discrimination for the purpose of the Bill. Discrimination shall be taken to occur where on any of the grounds that exists at present or previously existed but no longer exists or which may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated. Discrimination also takes place where the requirement to comply with a condition has a substantially more adverse effect on a category of persons than on others and the obligation to comply with that condition cannot be justified as being reasonable in all the circumstances of the case.

Section 5 prohibits discrimination in the dispos ing of goods or the provision of a service. It is irrelevant whether the goods or service are provided for payment or only to a section of the public. There are exemptions for the disposal of goods by will or gift and for differences of treatment in certain circumstances in particular areas, such as insurance, adopting, fostering, sporting events and entertainment and where privacy is a factor.

Section 6 prohibits discrimination in land dispositions, provision of accommodation and services and amenities related to accommodation.

Section 7 prohibits discrimination by educational establishments against students in relation to admission, access to courses and facilities. Primary and post-primary schools will not be regarded as being discriminatory simply because they are single gender and a seminary may restrict admission to students of only one gender or religious belief. Differences of treatment by third level institutions as between EU nationals and students from third countries are exempt. An educational establishment may limit the access of a student with a disability if the student's disability is such that it would make impossible or be seriously detrimental to the education of other students.

Section 8 outlines the criteria and process by which a club is determined to be a discriminating club. A club is considered to be a discriminating club if it discriminates against a member or applicant for membership. Any person, including the Equality Authority, may seek a determination of the District Court that a club is a discriminating club. Such an application may be dismissed by the District Court if it is brought in bad faith or is frivolous, vexatious or trivial. The determination may be appealed to the Circuit Court within 42 days.

Section 9 provides that in certain circumstances a club is not considered to be a discriminating club. A club whose principal purpose is to cater for persons of a particular religion, age, nationality or ethnic or national origin and which refuses membership to a person who does not belong to the relevant category is not considered discriminating. A club is not considered discriminating if it confines access to a membership benefit or privilege to persons of a particular gender or age group, provided that it would not be practicable to do otherwise and provided that the same or equivalent benefits are provided separately to those excluded.

I broadly agree with the provisions of section 10, which provides that a certificate of registration under the Registration of Clubs Acts, 1904 to 1995, which would permit the sale of intoxicating liquor will not be granted to or renewed for a discriminating club. Common sense would have to prevail in this area. Recently in my county the proprietors of licensed premises have had extreme difficulty in having their licences renewed owing to lack of common sense and their refusal to serve certain persons. The condition on any publican's licence states that he is obliged to keep maintain a good house at all times. That is one law and we cannot have another law that will directly contradict it. If a publican honestly believes that a client, whether from the settled community or the Traveller community, is likely to misbehave, cause disturbance or cause financial loss, it should be in his own hands and he should be entitled to refuse and give such a reason for it. Some of the recent decisions taken in the court did not acknowledge the common sense that should prevail.

The Minister referred to this issue on Second Stage in the Dáil and stated:

In the past there were some misconceptions about the effect of the Bill on commercial interests. This Bill will prohibit discrimination on specified grounds only. It will not require traders to admit all-comers nor will it prevent business people from refusing service to someone because of bad behaviour or lack of hygiene. It will not give any protection whatsoever to trouble-makers or anti-social elements.

This is very important and I welcome it because it has allayed many of the fears of publicans and confirmed that the common sense approach should prevail. I would not criticise any decision taken by the courts but that approach will have to prevail if people are to be allowed to run their businesses properly.

Sexual harassment is covered by section 11. A person in authority in an educational establishment, a person providing services or accommodation or disposing of goods or premises is prohibited from sexually harassing or harassing a student or customer, as the case may be. Sexual harassment is defined as an unwelcome act of physical intimacy and unwelcome requests for sexual favours or an unwelcome act or conduct with sexual connotations.

Section 12 makes it an offence to publish or display an advertisement which indicates an intention to engage in prohibited conduct. Section 16 specifies that certain actions are non-discriminatory.

A reasonable part of the Bill deals with enforcement. The Employment Equality Act, 1998, provides for the establishment of the Equality Authority and the Office of the Director of Equality Investigations and for their respective functions in employment equality.

Under section 21, a person who claims that prohibited conduct under the Bill has been directed against any person may refer the case to the director. No claim will be investigated unless the complainant gives the respondent an initial notification in writing within two months of the alleged act of discrimination and the respondent fails to reply to the satisfaction of the complainant. That is very fair and gives both sides an equal opportunity and equal status. The director may dismiss the claim if the complainant does not have sufficient interest in the claim or the claim has been made in bad faith, is frivolous, vexatious or trivial. There are claims made in many walks of life which are in bad faith, frivolous, vexatious or trivial but there are also genuine ones.

Sections 26 to 31 deal with the investigation by the director. The types of redress which the director may order are one or both of the following: an order for compensation or an order that persons as specified in the order should take a specific course of action. The director may go to the Circuit Court to seek information to take a specific course of action. Part IV of the Bill outlines the initial functions conferred on the Equality Authority.

I fully support the legislation which is enshrined in the Good Friday Agreement and the principles of common sense. We want to build a society that respects the differences of others. Discrimination must be eliminated. The Amsterdam Treaty gives the European Union greater powers in combating discrimination in society. The European Union should take the necessary measures to achieve these important policy objectives.

I thank all those who contributed to this interesting debate including Senators Connor, O'Donovan, Norris, Henry, Keogh, Ryan, Kett and Cregan. Senator Connor referred to the question of whether this legislation would apply to the State. This has exercised my mind and the minds of our officials. We are advised that following the 1993 Supreme Court judgment in the case of Howard v. the Commissioners for Public Works it is no longer either necessary or desirable to state in legislation that the State is bound by it. Apparently the doctrine of crown prerogative, whereby the State would not be bound by any statute which does not include it expressly or by implication, did not actually survive the Constitution of 1937. There was uncertainty about that until the Howard v. the Commissioners for Public Works case, but in that landmark decision it was established that whether a statute expressly or by implication bound the State or not, the State was still bound. That is why in that case, the Senator will recall, it was held that the State was obliged to apply for planning permission to build the famous interpretative centre at Mullaghmore. It is no longer necessary to state explicitly in legislation that the State is bound by that legislation. It never was necessary to do so but there was a great deal of uncertainty about the actual position. I appreciate Senator Connor's wish to raise this matter.

Senator Connor also inquired whether the legislation will apply to the public service. Service is defined in section 2 as "a service or facility of any nature which is available to the public generally or a section of the public". This wide definition of service applies to public services as well as those provided by the private sector. The application of the legislation to public services is unquestionable. That is reinforced by section 5(1) which provides that it is irrelevant whether the services are provided for "consideration or otherwise". The reference to the State in section 14(a)(iii) also underlines that point.

It is clear that the Equal Status Bill applies to services provided by the State. This matter which was raised by Senator Connor has exercised my mind and those of my officials and it was raised with us by interested groups on a number of occasions. However, there is no question that the State and the services it provides are bound by the legislation.

The scope of the equal status legislation is not confined to those public services which are analogous to those provided in the private sector. For example, social welfare services have no counterpart in the marketplace but they come within the scope of the Equal Status Bill. I am aware that United Kingdom case law restricted the application of anti-discrimination legislation to public services which actually have a parallel in the marketplace. However, I am strongly advised that a similar limitation would not apply in this jurisdiction. The UK judgments were delivered against an entirely different legal and constitutional background. In addition, the United Kingdom legislation does not define a service but merely offers examples thereof, whereas the Equal Status Bill defines a service as "a service or facility of any nature".

Under section 14, actions which are required to be done by or under statute are exempt from the legislation. Distinctions in the tax code based on marital status or in social welfare legislation based on age – for example, pensions – will not be regarded as discrimination under the Equal Status Bill. I stress that this exemption applies only to actions which are mandatory under the relevant statute and not to the discretionary actions of statutory bodies or public officials.

Lest there be doubt, even where a particular matter is exempt under section 14 the obligation not to discriminate will apply to the interaction between officials and the public in the delivery of the relevant statutory function. For example, the fact that the requirements of the tax code are exempt does not allow Revenue officials to discriminate in granting access to buildings and information or in providing advice or other forms of assistance.

Senators Connor and O'Donovan referred to immigration. Not all actions of the State vis-à-vis members of the public can be regarded as services. There is a distinction between controlling the duties exercised by the State and the services it provides. I am advised that immigration and citizenship matters are not services within the meaning of the Equal Status Bill but rather an expression of the State's duty as a sovereign power to control who it admits to the country. Controlling duties in the area of policing, defence and prisons would, likewise, not be regarded as services. The service aspects of policing, immigration, defence and prisons will, however, come within the scope of the legislation. For example, while a decision to grant a visa would not be covered by the Equal Status Bill, the interaction between officials and the visa applicant and collateral services and facilities such as access to buildings and information would come within the scope of the legislation.

In the area of policing where, for example, riot control or apprehending a criminal gang could not be regarded as services, information and assistance provided by gardaí, including responding to reported crimes, would be regarded as a service within the scope of the equal status legislation. Furthermore, the fact that the controlling duty of the State does not come within the scope of the equal status legislation does not give carte blanche to officials to discriminate in the exercise of such duties. Discrimination or irrationality in the exercise of controlling duties can be challenged in a High Court constitutional action or in judicial review proceedings.

Senators Connor and O'Donovan also referred to section 15, which was intended to reassure vintners and other commercial interests that the Bill would not oblige them to admit troublemakers or prevent the normal operation of their businesses. The safeguards in section 15 do not actually interfere with the Bill's central thrust which is to outlaw discrimination. Section 15(1) can be invoked only in limited circumstances. There must be a substantial risk of criminal or disorderly behaviour. A key feature of section 15 is that any difference of treatment must be on grounds other than discriminatory grounds. For example, someone cannot refuse to serve a Traveller because he or she happens to believe that Travellers are inclined to cause trouble. Such behaviour will not be allowed.

Section 15 is not intended as some form of escape hatch to allow people who want to discriminate to do so. I assure Members that is not the intention. Section 15 is a necessary safeguard to meet the concerns of vintners and other commercial interests, which it does successfully. However, I stress that it will not be an escape hatch for people who want to discriminate.

Senator Norris referred to the definition of disability, which was extensively discussed during the debate on and the passage of the Employment Equality Bill in 1996 and 1998. The definition in the Equal Status Bill is the same as that which appears in the Employment Equality Act, 1998. That, in turn, is modelled on Australian legislation and is intended to be as wide as possible and to protect as many people as is practicable from discrimination on the grounds of disability. Other definitions of disability are used for different and other purposes – for example, for eligibility for adapting a car. We have tried to define disability as best we could. Any change would have the effect of limiting the provisions and the protections provided for in the legislation.

Senator Henry queried the role of the Equality Authority and referred to a need to promote equality. The latter is one of the key functions of the Equality Authority under section 39 of the Employment Equality Act, 1998.

Senator Connor referred to the work of the National Consultative Committee on Racism and Interculturalism which was originally established during the European Year against Racism. I share his concern that a small minority of people can exhibit racist tendencies in our society. In that context, given the fact that asylum seekers are entering the country, I felt it important that the National Consultative Committee on Racism and Interculturalism should not cease its work when the European Year against Racism ended. I continued the work of the committee and provided extra funding for it. I am concerned it should continue with its excellent work.

Senator Keogh expressed concern about the issue of women golfers and offered several examples of discrimination. There is no doubt there has been discrimination against women golfers. A few clubs do not allow women to be members, which is hard to believe in 2000. Other clubs allow women to be associate members only. That means they have limited playing time and usually cannot play at weekends. They cannot vote and, therefore, cannot have a real say in decisions affecting members such as fees, playing times and so on. These rules appear to assume women do not work and should play midweek rather than at weekends. This patriarchal view of women is entirely unacceptable.

This legislation will eliminate discrimination on grounds of gender in regard to the delivery of services. We can take it, therefore, that the gender issue will be resolved. However, there are other issues attendant upon the changes which must be addressed, not least of which is the issue of voting rights. As I said, we are giving deep consideration to that matter. Everyone will accept that, irrespective of one's gender, one should have the option of deciding whether to be a full member. Voting rights should then be dealt with logically in terms of associate members, members for certain lengths of time and so on, always remembering that what is sauce for the goose is sauce for the gander. In other words, we must ensure there is equality of opportunity and services for all concerned. As I said in the Dáil, we have been discussing some of these matters with the Attorney General. I hope to reach my final conclusions soon, certainly before this Bill is passed by the House.

Senator Ryan expressed concern about the meaning of section 3(3). It means that someone under 18 years cannot claim discrimination on the ground of age. Equally, someone over 18 years cannot claim discrimination on age grounds based on a comparison with someone under 18 years. For example, a person over 18 years will not be entitled to demand to be charged the same bus fare as someone under 18 years. That is reasonable. Otherwise, we would reach the stage where we would meet ourselves coming back. The Bill provides that children under 18 years can claim discrimination on all other grounds, such as race and disability. In other words, the Bill protects children in regard to all the other grounds.

Senator Ryan mentioned the UN convention of 1966 and wondered if it could operate immediately. Ratification of that convention will not be possible until this Bill is fully in operation and people can avail of their rights under it. Therefore, an early operation date solely stating that ratification can take place would serve no purpose. I would have to reject any such amendment.

Senator Kett, whose contribution dealt mainly with disabilities, wondered about the issue of nominal cost and was concerned it is not defined in the Bill or the Employment Equality Act. I accept he has a point. The only logical answer is that the issue of nominal costs may vary, according to the nature of the service and the circumstances of the service provider. In other words, what might be regarded as a nominal cost for a service provider with a large turnover might not be a nominal cost for a small business. For example, a person with a very large turnover and a person with a small business both giving £10 to charity are not in an equivalent position. The amount is the same but the effect on income is different. The director of equality investigations will decide whether a cost is nominal.

I trust I have dealt with all the concerns raised. Senator Cregan, who was the last speaker, raised the issue of the right of vintners and other service providers to refuse service. I have dealt with section 15. I hope I have dealt comprehensively with Senators' queries. I thank them for their informative and interesting contributions. I look forward to Committee Stage, when we will have an opportunity to discuss Senators' amendments.

Question put and agreed to.

An Leas-Chathaoirleach

When is it proposed to take Committee Stage?

It is proposed to take Committee Stage on Wednesday, 8 March 2000.

Committee Stage ordered for Wednesday, 8 March 2000.
Sitting suspended at 5.48 p.m. and resumed at 6 p.m.