I move amendment No. 29:
In page 9, lines 18 to 23, to delete subsection (2).
SECTION 5.
Amendment agreed to.
Amendments Nos. 30 and 31 not moved.
I move amendment No. 32:
In page 9, subsection (3)(e)(i)(I), line 40, after "rely" to insert "but not information gathered from genetic testing".
There is no public awareness of what I, as a doctor, know to be the enormous implications of recent developments in genetics. Insurers will want access to that information and insurance companies will be inclined to cherry pick its customers if we allow recent developments to proceed. That is why I seek to include the words "but not information gathered from genetic testing". I have also raised this in the Dáil for those specific reasons. This is not the Star Wars issue which people make out. I am calling, as I have in the past, for a public debate on this issue because scientific technology is so far advanced that the general public is unaware of the point it has reached and we are unaware of what is possible.
In the interim, we should take into consideration this specific point because the Association of British Insurers has announced recently that it will not use genetic testing on mortgages of less than £100,000 for the next two years. Where would one buy a house for less than £100,000? When one takes into consideration that the ABI includes 440 companies and most of the companies operating in this country are under the ABI umbrella, we should be sending out a signal, which already forms part of the law in some US states, to recognise this specific point because insurance companies will be able to cherry pick. If we do not do something about it we could create an uninsurable underclass.
I can see the basis for Deputy McDaid's concern in this area. However, at present people can be discriminated against based on genetic tests and they have no legal protection. This Bill provides protection because the insurance company will have to justify any difference in treatment; they do not have to do so now.
I cannot accept this amendment. It is not clear why information obtained from genetic testing should not be included in the data which insurance companies can use to justify different treatment. It must be data on which it is reasonable to rely — that is provided for in the section — and the difference in treatment must be reasonable having regard to the data or other relevant factors.
As I understand the position, insurance companies in Ireland have yet to decide their stance on genetic testing. Apparently, insurance companies in Britain do not ask prospective customers to take a genetic test but ask to see the results of any tests which have been taken. Presumably they are concerned that some information would be available to the customer which would not be available to them in assessing the risk. This does not appear unreasonable although I appreciate the point that it might discourage people from undergoing genetic tests.
Another point I would make in this context is that insurance contracts require the disclosure of all material information whether the insurance company asks for it on its application form. It is arguable that a person should disclose the results of genetic tests to an insurance company when applying for cover, if they have such results. It would be highly artificial and illogical in those circumstances to prevent the company from taking the results of the test into account in setting the terms on which it will give insurance cover provided always, of course, that it is reasonable, having regard to the data or other relevant factors, to rely on it.
Did the Minister say he is permitting insurance companies to use genetic testing?
That suggests that I am providing an obligation on a person to take a genetic test.
Does the Minister think it is feasible that they should be allowed to use genetic testing?
No. I am saying that if there are genetic tests available which are relevant to the insurance quotation, it is reasonable that the insurance company should be permitted to take those factors into account.
Let us take a purely hypothetical example. If there was a certain category of people which genetic tests show have a mortality age which is 20 years less than everybody else and it comes to taking out a life assurance policy, one could not in all reason expect an insurance company, which is a business organisation, to quote the same terms for a person whose actuarial data, based on genetic testing and other factors, shows there is a probability that this person's life expectancy is 20 years less than somebody else because that is the basis on which premium rates are calculated. Any insurance company alleging such a thing would have to establish it and show that it was, in the words of the section, based on actuarial statistical data obtained from a source on which it is reasonable to rely and that it is a relevant underwriting and commercial factor in giving the insurance quotation.
The Minister is denying the community rating principle of insurance companies. This example has been legislated against already in 11 US states. The problem has arisen and if the Minister is going to address it in an open ended fashion, he is denying community rating which insurance companies have provided to date. I would argue that we can go so far nowadays as to predict heart disease which may be three or four times more common based on genetic material. This is not proper and it does not give the right basis for the decisions of insurance companies. It will be abused. From what the Minister said, he is denying community rating and this has been a problem in the US and it will become more of a problem, particularly if, as in the UK, it is not addressed in legislation. The insurance companies are obviously testing the waters because most of the companies operating in Ireland are under the ABI umbrella. The Minister is opening up that option and that is a serious situation.
Community rating does not apply to insurance generally; this Bill does not affect the community rating status of health insurance here, for example. Community rating could mean various things in various circumstances. Community rating does not mean that every person is entitled to get an insurance policy on exactly the same basis as everybody else. For example, I am 65 years old. If I apply to take out a life policy under which £100,000 would be paid to my widow when I died, I cannot expect to get a quote for such a policy on the same basis as Deputy Flood, who is many years younger. He would get far cheaper life cover.
Agreed.
By the same token if, in case of two people of the same age, it was established from evidence to the satisfaction of the director of equality investigations that one had a life expectancy of 40 years and the other's was 20 years, one cannot expect an insurance company to give a community rating to both because the risk is different and insurance companies operate on the basis of risk.
The Minister advocates cherry picking and an uninsurable underclass if he allows genetic testing.
The Bill does not state that a person is obligated to be genetically tested. If a genetic test exists which is proven to the satisfaction of the director to be a risk factor that is relevant to an insurance company in calculating what risk it is taking on, it may take that into account in the same way as it takes a person's medical history, age or various other factors into account when it calculates an individual's premium. If there is relevant evidence from any source, I do not see how it can be excluded. However, Deputy McDaid feels strongly about the issue and I will consider it between now and Report Stage.
It is a dangerous step and there has not been enough debate and we are unaware of the current position in this area.
Protections are included in the section. Proper actuarial or statistical data have to be used, it has to be proven to the satisfaction of the director, obtained from a source on which it is reasonable to rely or other relevant underwriting or commercial factors and is reasonable having regard to that data or other relevant factors. The director may say there is actuarial or statistical data on which it is reasonable to rely but having regard to the data it is not relevant and he or she will uphold the applicant's claim.
The Minister said he will look at it again. The use of genetic tests for discriminative selection is ethically wrong and he is opening up a new horizon in insurance.
Amendment, by leave, withdrawn.
I move amendment No. 33:
In page 10, subsection (3), to delete lines 1 to 3.
I propose to delete paragraph (f) in page 10. It is unnecessary to have this exception given the existence of paragraph (n) dealing with property or services only suitable to the needs of certain persons and section 17(3) which exempts different treatment in the exercise of clinical judgment.
Amendment agreed to.
Amendments Nos. 35, 36, 37, 43, 45, 47, 49, 57, 59, and 60 are related to amendment No. 34. Amendment No. 44 is an alternative to amendment No. 43, amendment No. 46 is an alternative to amendment No. 45, amendment No. 48 is an alternative to amendment No. 47, amendment No. 58 is an alternative to amendment No. 57 and amendment No. 61 is an alternative to amendment No. 60. It is proposed to take amendments Nos. 34 to 37, inclusive, amendments Nos. 43 to 49, inclusive, and amendments Nos. 57 to 61, inclusive, together by agreement.
I move amendment No. 34:
In page 10, subsection (3)(h), line 8, after "disability ground" to insert ", Traveller community ground".
We have been lobbied on this issue particularly by Pavee Point which says traveller organisations have promoted and supported traveller only football teams and traveller only sporting events, such as handball tournaments, which are an important means of affirming confidence, pride, identity and new relationships within the traveller community. It is of great concern that this important work may be prohibited by this Bill. In amendment No. 36 that argument relates to traveller only arts festivals as a way of affirming and developing cultural expression within the traveller community and traveller identity and culture.
I cannot accept these amendments. The proposed addition of the traveller community ground to the grounds listed in section 5(3)(h) is said to be intended to cover traveller football teams, handball tournaments, etc. A similar argument is made for amendments Nos. 60 and 61 in regard to sports facilities and registry of clubs under section 10. These exceptions, as they are worded at present, are designed to cover common sense differences of treatment in sporting matters. Many sports require particular physical attributes and, therefore, have to be organised on a separate basis for different genders, ages or with reference to disability.
Use of nationality or national origin in sporting matters is long standing. The travelling community does not come within these considerations. The difference between travellers and the settled community is not of the order of national differences. Paragraph (j) of the same subsection has an exception for differences in treatment to promote the special interests of persons and section 15(b)(i) allows measures to promote more equal opportunity for persons who are disadvantaged. It is possible travellers' football teams would come within these provisions but this would have to be determined by the director. An unregistered travellers' football club might well not be a body which deals with the public or a section of the public under section 5(1) and would not be affected by the Bill.
I do not agree with references to amendments which would extend the exception in section 5(3)(k) to cover the travelling community. Travellers' arts festivals are the reason for proposing the extension of this exemption but this provision refers to a separate issue, namely, where a person of a particular race is needed for a dramatic part. Paragraph (j) of the same subsection and section 15(b)(i) are suited to covering the situation to the extent that the conditions specified in those provisions are fulfilled. Exemptions in the Bill must have fairness as their basis. We cannot arbitrarily give a category an exemption.
Amendments Nos. 43 to 49 propose the inclusion of the travelling community among the exempted categories in section 7(3)(c)(ii). The fear is that special schools for travellers will be outlawed. This is not my intention and having considered the matter I am satisfied these schools are protected under section 15(b)(i). On the other hand, that provision would not safeguard the school's catering for persons of a particular nationality or national origin and, hence, the need for section 7(3)(c)(ii).
Amendments Nos. 57 to 59 provide that registered clubs be confined to travellers. I am not persuaded on the merit of this. Registered clubs are clubs which are authorised to sell intoxicating drink. If there is to be different treatment in this area on the basis of whether one is a traveller, there is a big danger that proponents of discrimination against travellers in pubs will use the same argument for the continuation of such discrimination. This consideration does not arise in relation to the groups in section 10(1)(a) at present. It illustrates the point about the additional grounds and the complexities of the exceptions which arise.
The representative organisations are concerned that a travellers' football, hurling or soccer team called Travellers' United, or whatever, could run into problems under this legislation. The traveller community is a specific minority which strenuously argues that it would like to preserve and protect its culture and identity. This is one of the ways they go about that. It allows social interaction among travellers. They are concerned this could be problem. There is a travellers' boxing club in the halting site in Brookfield in Tallaght, which is an outlet for traveller children. There is a neighbouring boxing club which looks after other needs. I do not think there is any specific difficulty between the two clubs but——
Section 15 states:
Nothing in this Act shall be construed as prohibiting. . . preferential treatment or the taking of positive measures which are bona fide intended to. . . cater to the special needs of persons who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs.
It may well be covered by that. However, if one adopts the principle of having pubs for travellers only, for example, that lends credence to those who want to exclude travellers from pubs which they say, on an apartheid basis, should be only for the settled community.
The Minister tends to be fairly precise in his language, which is part of his tradition. He used the phrase "may well be covered" which worries me a little.
As I do not want to be accused at a later stage of misleading anybody; I am cautious in the language I use. Perhaps I am being a little over-cautious in putting it like that.
Amendment, by leave, withdrawn.
Amendments Nos. 35 to 37, inclusive, not moved.
I move amendment No. 38:
In page 10, lines 39 to 50, to delete subsection (4).
Amendment agreed to.
Section 5, as amended, agreed to.