I move amendment No. 12:
In page 7, subsection (1)(b), line 38, to delete "this Part" and substitute "Part II".
SECTION 3.
Amendment agreed to.
Amendment No. 14 is an alternative is to amendment No.13 and both may be discussed together.
I move amendment No. 13:
In page 7, subsection (1) (b) (ii), lines 43 and 44, to delete "as being reasonable in all the circumstances of the case" and substitute "by objective factors unrelated to the category of persons involved".
In amendment No. 14 changing the word "reasonable" to "possible" makes it more difficult to wriggle off the hook. As regards the word "reasonable", if CIE has a fleet of 500 buses it could say it is "reasonable" that it will not be able to make them accessible. This makes it easy for them to opt out. The word "possible" should be inserted. For example, as regards accessibility to buildings, if the word "possible" is inserted, a bar, nightclub or entertainment complex owner would have to argue it was impossible rather than reasonable.
The amendments proposed by Deputy Keogh, Deputy Flood and Deputy McDaid would substitute the test of justification for reasonableness and the definition of indirect discrimination. While I appreciate the motivation behind these amendments I regret I cannot accept them.
This is the test which is applied to the non-gender categories in the Employment Equality Bill and I have decided to apply it to all categories in the Equal Status Bill, given that we are breaking new ground here. On the face of it, the test of reasonable is more favourable to a respondent than that of justification. As I explained to the committee when we discussed section 31 of the Employment Equality Bill where we were dealing with predominantly minority groups, reasonableness seemed the appropriate test.
The distinction in the Employment Equality Bill between the gender and non-gender categories based on the fact that EU law applies to the first but not to the second is generally absent in this Bill. Therefore, I did not consider it appropriate to draw the distinction here but rather to apply the reasonable test in all cases. The test is reasonable in all the circumstances of the case. One has to strike a balance between the position of the applicant and that of the respondent. The first and most balanced test is that of reasonableness. There may be good reasonable grounds in all the circumstances why something should or could be done. To expect something to be done because it is possible could have disastrous consequences in some other aspect of activity. It may be possible in this instance but the consequences could be drastic in another area.
All factors have to be taken into account and reasonableness is a fair test. The converse of whether something is reasonable is that it is unreasonable. It is hard to quarrel with the expression "reasonableness". It makes an effort to take a balanced view of what would be important conflicting rights between an applicant and a respondent. The responsibility is there, but that is the basis.
The word "reasonable" could be subject to abuse. It allows an unnecessary opt out.
It is not an opt out. It is not a question that they would be able to say "I am not doing this because it is unreasonable". At the end of the day, whether it is reasonable in all the circumstances would be determined by the equality officer. It is not the respondent who will determine that.
If the word "possible" was used, it could short-circuit having to go to the authority. Taking the example of accessibility to a building, a contractor could say it is not reasonable to expect him to provide access. If the word "possible" was inserted he should do so. The Minister is allowing an opt out that will be used against those with disabilities.
I do not accept it is an opt out. It is a ground which a respondent may raise. To take Deputy McDaid's example of CIE making buses accessible, it is possible for CIE to do it, but the consequences to the service of CIE could be overwhelming in other areas. Whether it is reasonable to expect them to do it, taking all circumstances into account, would have to be determined by the equality officer on the basis of a complaint. It would not be fair to a respondent to put the obligation on a higher or more stringent basis than reasonableness taking all factors into account. There could be extraneous factors which could have unforeseen circumstances.
Does the Minister agree with the contention that this test on reasonableness is less strict than necessary?
Yes. It could be compulsory but it would be unfair and inappropriate to do that. One has to think of the position of the respondent as well as the applicant. This legislation will primarily benefit the applicant. However, this does not mean one can ride roughshod over the legitimate claims of the respondent. The equality officer will decide whether claims are legitimate on the basis of reasonableness. What could be fairer than this? It would be tilting the pendulum too far against the respondent for the test to be based on something other than reasonableness. I do not agree it is an opt out. The independent arbitration of the equality officer will decide whether that has been complied with. On balance, it is fair.
Amendment, by leave, withdrawn.
Amendment No.14 not moved.
Amendment Nos. 15 and 16 are related and may be discussed together.
I move amendment No. 15:
In page 8, subsection (2)(i), line 19, to delete "travelling community" and substitute "Traveller community."
The emerging thinking from the travelling community that the manner in which traveller and community are joined together is important for future references to the travelling community. We have tended to refer to the community as the "travelling community". The traveller organisations think we should use the term "traveller community." I hope there is no difficulty with this.
I support that. It is in line with our thinking and with other references. It is not a major issue but for the dignity of those involved, if that is their preferred way of being referred to, I would ask the Minister to accept it.
The expression "travelling community" is the one used in both the Employment Equality Bill and the Equal Status Bill. That expression has the approval of the parliamentary draftsman. There is nothing wrong with the expression "traveller community" as an alternative but I see no reason or necessity to adopt it. We need to be consistent with the Employment Equality Bill where "travelling community" is used. It is not a matter of major concern.
Can the Minister not be reasonable? It would not take a great deal to change the wording of the Employment Equality Bill.
It would take a great deal because it has already gone through the Seanad. Were it not for that I would seriously consider it. Since the Bill has gone back to the Dáil with Seanad amendments it is not possible to do that. It does not warrant it anyway. It is not a major matter. I accept there is no great problem with "traveller community" either.
Amendment, by leave, withdrawn.
Amendment No. 16 not moved.
Amendments Nos. 17 and 18 are related and may be discussed together.
I move amendment No. 17:
In page 8, subsection (2), between lines 32 and 33, to insert the following:
"(k) that one has a particular political opinion or belief and the other does not (‘the political opinion ground');".
This amendment extends the provisions or areas under which discrimination occurs to include the political opinion ground. It is bizarre because in discussing this Bill I feel as if we have already discussed much of it. As the Minister is aware we discussed this at length under the Employment Equality Bill. The point has been made that the European Convention on Human Rights guarantees protection from discrimination on this ground as well. Is there a huge problem in having some differentiation between this Bill and the Employment Equality Bill? Does the Minister feel we are constrained? Will we find that unless it comes within the Employment Equality Bill, we will not have the ability to amend this Bill to widen its remit?
I would not put it as strongly as that. I would not say there is an absolute necessity for these descriptions to be on all fours in every respect. Where a divergence occurs between employment issues and supply of goods and services issues there perhaps could be — and if one were to analyse it I would say there probably is — a divergence there. As Deputies know, we discussed this at great length in the Dáil and in the Seanad in particular. Without going over all that ground again in detail, in the Seanad I reached with Senators on all sides a reasonable compromise. That is reflected here by my amendment No. 19 which provides that:
The Minister [myself or whoever that may be in future] shall, not later than two years after the commencement of this section, review the operation of this Act to assess whether there is a need to add to the discriminatory grounds specified in subsection (2).
That was the compromise arrived at on the Employment Equality Bill following similar amendments in the Seanad. Senators generally accepted that was an improvement and an indicator that the nine grounds we have are not necessarily comprehensive or final but are to be watched at all times. They accepted the point that we are breaking an enormous amount of new ground here with the nine grounds. One could add more and more. One could think of other grounds apart from the two specified here, for which one could make a good case. Let us see how we operate on such a wide new spectrum. I have tabled a specific amendment No. 19 which provides that the Minister will keep these grounds under review over a two year span, and would see then what further grounds, if any, would be required.
Given our circumstances and the difficulties in Northern Ireland, amendment No. 17 is pertinent to this island. I know we had a long discussion on it and I will not get bogged down in it once more, but it is something that should be addressed.
It may well be addressed. As a matter of principle I cannot say that I have any major objection to it. When you deal with the possibility of having any new additional ground it requires careful examination, thought and care because there are always exceptions that need to be provided for. If Deputies look at the grounds they will see there are necessary exceptions that must be there. One cannot just add grounds with gay abandon; they must be analysed and thought through carefully. The two years I have provided for in amendment No. 19 will give that reasonable time span to see how it is going.
Amendment, by leave, withdrawn.
Amendment No. 18 not moved.
I move amendment No. 19:
In page 8, between lines 35 and 36, to insert the following subsection:
"(4) The Minister shall, not later than two years after the commencement of this section, review the operation of this Act to assess whether there is a need to add to the discriminatory grounds specified in subsection (2).".
This amendment provides for the two year review.
Amendment agreed to.
Question proposed: "That section 3, as amended, stand part of the Bill."
Victimisation is treated differently in the Employment Equality Bill and the Equal Status Bill. In this Bill it is a ground of discrimination while in the other Bill it is treated separately. This is purely a difference in drafting styles and has no substantive effect. However, there are also differences of detail in the two provisions — section 3(2)(j) of this Bill and section 39(2) of the Employment Equality Bill as passed by Dáil Éireann. I am considering the alignment of the two definitions and I may be proposing an amendment on Report Stage. I am signalling that at this point for the record.
Question put and agreed to.