Wednesday, 15 December 1999
Dáil Éireann Debate
These amendments seek to broaden the definition of family status in the Bill. Amendment No. 1 represents what we are trying to achieve in other areas of the Bill whereby we are seeking to ensure that its provisions are as broad as possible in terms of the protection it gives to the various groups covered by its provisions against discrimination. We have received representations, particularly from the Irish Council for Civil Liberties, which suggest that there are carers who do not necessarily reside with the person for whom they care. This issue was also brought to my attention by the gay and lesbian community many of whose members provide care but are not resident with the person to whom they give that care. However, this also applies to other categories such as  people with disabilities who are cared for by someone who does not live in the same house.
By deleting the word “resident” and, as proposed by amendment No. 2, deleting the sentence which requires that the primary carer is a resident primary carer if they reside with a person with a disability, we would extend protection to those who give care but do not necessarily live in the same house as the person for whom they care.
Ms Fitzgerald: I am glad to see the Bill on Report Stage in the House as it is an important part of the armoury to deal with discrimination. Amendment No. 1 addresses the fact that the definition of carers is restricted to a parent or a resident primary carer. Why is it necessary to restrict the protection to such a narrow group of carers? Such a narrow focus may discriminate against carers who are not included in the definition in the Bill. The aim of this amendment is to widen the definition of carer to entitle others to the protection of the Bill. Strong representations have been made on this issue by a number of groups, including the Irish Council of Civil Liberties who say the narrow focus may serve to discriminate against co-habitees who take care of their partners, for example, by working outside the home and that it will be detrimental to carers in the lesbian and gay community. Will the Minister consider this? The reason he gave previously for not extending the provision was that it was in line with the definition in the Employment Equality Act. Surely we ought to extend the range of protection wherever possible. It seems reasonable to include primary carers who may not be resident but who should have the protection of the Bill.
Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): Apart from the inclusion of pregnancy, which, for reasons arising from EU case law, is treated as gender discrimination in the Employment Equality Act, the definition of family status is identical to that in the Employment Equality Act. The proposed changes would create an unjustified divergence between the definition in this Bill and that in the Employment Equality Act. If the primary carer did not have to be resident, more than one person could be deemed to be the primary carer of the same person. I cannot, therefore, accept these amendments.
Ms O'Sullivan: That problem could be overcome by designating the primary carer. As regards the Employment Equality Act definition, we are talking about services which are different from employment. The Equal Status Bill could have a different definition because the area it covers concerns other aspects of life apart from employment. We want the definition to be as wide as possible so the Bill can protect as many people as possible. This is a different issue from that dealt with in the Employment Equality Act.
Ms Fitzgerald: The Minister is repeating the argument that the same definition is included in the Employment Equality Act. However, as Deputy O'Sullivan said, this legislation deals with different issues. It should not be outside the bounds of possibility to define a primary carer. Criteria could be included whereby someone could be clearly defined as a primary carer and thus be protected by the Bill. Agreement could be reached in particular cases. Will the Minister consider this?
Mr. O'Donoghue: If a person is in a relationship with and living with a member of the gay and lesbian community, clearly he or she would be deemed to be the primary carer. I do not see why it should apply particularly to members of the gay and lesbian community. The same circumstances could arise as regards heterosexuals. It is not confined to one group. As I have already outlined, there can be only one carer. There must be some definition – resident carer is the term included in the legislation. This is similar to the Employment Equality Act. In those circumstances and for reasons I already outlined on Committee Stage, I am not in a position to accept these amendments.
With regard to Deputy O'Sullivan's suggestion that I provide a mechanism whereby the primary carer would be designated, I think everyone would agree there must be certainty in the legislation and I cannot utilise it in that fashion.
Ms O'Sullivan: I agree with the Minister that this does not apply to the gay and lesbian community more than any other. I said that they made representations to us because they were concerned about this section of the Bill. I accept what the Minister said but that does not deny our argument that some carers will not be included in this Bill because of the narrow definition of family status.
Acting Chairman: Amendment No. 4 is in the name of Deputy O'Sullivan. Amendments Nos. 9, 12 and 73 are related, amendment Nos. 10 and 11 are cognate with No. 9 and amendment No. 27 is an alternative to No. 12. All may be discussed together by agreement. Is that agreed? Agreed.
These amendments in my name and that of Deputy Fitzgerald propose to allow the benefits of the Bill to apply to groups as well as individuals. We had a long debate on this on Committee Stage. The argument was made, to which I still  hold, that there are many cases in which groups are discriminated against. For example, if travellers are refused service in a public house, the discrimination is against the group not a number of individuals. They are discriminated against because they are part of a group. Similarly, this applies if an ethnic group is refused service in a restaurant or refused entry to an educational establishment. In many cases discrimination will be against a group rather than individuals. The Minister indicated that each individual within the group would be free to take an action under the legislation. This seems an impractical way to deal with discrimination against a group. As I said on Committee Stage, it would be more logical for a group to be able to take a case. One could then investigate the discrimination and there would be no repetition of cases, because in effect, each member of the group would take the same action. I do not need to go into more detail on this because it is self-explanatory. In other jurisdictions there is widespread provision for taking group actions. For example, in the US there is detailed legislation, particularly in relation to the rights of people with disabilities, whereby group actions are frequently taken under the American Disabilities Act and other legislation. In so far as I have been able to research it, there is provision for group actions to be taken under this type of legislation.
Ms Fitzgerald: This issue was discussed on Committee Stage. Our argument is that to give the opportunity to a group or organisation to take a case under the legislation would be a strengthening provision. Groups can take cases in other jurisdictions. If an individual is being discriminated against, it is often difficult for that person to initiate a case. I take the Minister's point that the way in which this provision is written into the legislation does not prohibit a group of individuals who belong to a particular organisation from taking a case. He made the point that legally he cannot get a definition for organisation that is meaningful in the context of anti-discrimination. This surprises me. I would have thought this would be possible. However, legal advice seems to suggest otherwise. It is often difficult for individuals to take cases. It would strengthen anti-discrimination law or the Equal Status Act if organisations knew they had the power as organisations to initiate cases on behalf of individuals. Of course, organisations can still support individuals who take cases. However, if an organisation has the legal right to initiate, different sorts of cases will be taken and organisations will initiate action before an individual may do so. It might be easier for organisations to initiate cases as opposed to an individual.
The purpose of the amendments is to give more authority to organisations who work to end discrimination to take cases in their own right. I understand the new Equality Authority has had a huge number of inquiries since it began adver tising the work it does. There is no doubt that once the Equal Status Bill is enacted, covering areas other than employment, there will be a huge number of inquiries covering a wide range of areas. Awareness generally in relation to discrimination is growing. New rights issues dealing with refugees and asylum seekers are emerging and no doubt the Equality Authority will be to the fore on these issues. Given the changing scenario in relation to rights and discrimination, empowering organisations to initiate action under the Bill would be a progressive step despite the Minister's legal advice that organisations cannot be defined legally in a meaningful way. We all know that organisations are meaningful and take meaningful actions. In other countries they initiate anti-discrimination actions, so why not in Ireland?
Mr. Collins: I wish to record my opinion on this matter. Unfortunately, I was not present during the Committee Stage debate. I do not agree with Deputy Fitzgerald that organisations should be given the power to take actions. People are in business to make a livelihood, irrespective of the type of business. Business people do not object to customers entering their premises unless they have good reason to do so. I feel strongly about this issue. If somebody is about to cause trouble, I assure the Deputy the regular customer will be the first to bring the matter to the attention of the owner of the business, regardless of whether it is a licensed premises or whatever. If X number of people enters a premises and the owner is aware that they may cause trouble, that business person should have the right to make a decision on the matter. If one or two people start trouble, naturally the others will join in. An owner of a business who is trying to make a livelihood will not refuse a customer unless he or she believes the person they are refusing may cause trouble. I believe this is the right of the owner of the premises.
Ms Fitzgerald: The point about somebody running a business being able to refuse a customer if they believe they may cause trouble is provided for in other sections of the Bill. This should not be a problem given the way in which the Bill is drafted in that area. This issue is slightly different. For example, we are aware of the difficulties of refugees in accessing services and that asylum seekers are very vulnerable. I am trying to highlight the case of a person who is vulnerable, isolated and marginalised in a new country and who may have language difficulties. If there is injustice or discrimination, an organisation such as the Irish Refugee Council would be in a better position to initiate action on behalf of the individual refugee or asylum seeker given their experience and information in this area. This is what I am referring to rather than somebody entering a pub and causing trouble. On many occasions when a person is discriminated against, it may be difficult  for him or her as an individual to initiate action or to have the relevant information. It would greatly add to the legislation if an organisation which works to represent the interests of individuals could take a case on behalf of an individual. This happens in other jurisdictions. Our law should be inclusive in relation to this issue and should allow organisations to take cases.
Mr. O'Donoghue: As I explained on Committee Stage, the 1997 Bill covered discrimination against organisations as well as individuals. However, when the 1997 Bill was referred to the Supreme Court, opposing counsel criticised the drafting of section 3(1) of the Bill as meaningless, a criticism which was upheld in subsequent legal advice. Since the discriminatory grounds are that one is a man and the other is a women etc., it does not make sense to apply these grounds to organisations. Not only did the inclusion of organisations present a serious drafting problem, it is also arguable that such a provision might be as protective of an all male or racially exclusive organisation as it would be of an organisation representing travellers or racial minorities. For these reasons, the present Bill does not apply to discrimination against organisations but only to discrimination against individuals. I cannot accept amendments that would attempt to reinstate organisations in the definition of discrimination. Under the 1999 Bill it will still be possible for any individual who encounters discrimination as a member, for example, of a traveller organisation, to bring a claim of discrimination on an individual basis. Organisations can resource and assist individuals to take a case but discrimination directed at an organisation cannot be the subject of a complaint.
In summary, every group comprises either men or women in the context of this legislation. If there is discrimination against a group or organisation, it is open to any individual in the group or organisation to take an action by himself or herself. It is open to every member of the group or organisation to take an action. If one person brings an action and succeeds, and if all of the other people were discriminated against in the same fashion, it will be obvious that all of the others have precisely the same case and that they will succeed as well. In addition, it is open to the organisation or group to assist any individual to take a case in order to establish the precedent. On the basis that what we are dealing with here is human beings as members of a group or organisation, I propose to reject the amendments, and for all the other reasons I outlined earlier.
Ms O'Sullivan: Let us take another example of discrimination on the grounds of age. If members of an active retirement group want to book a table for lunch in a restaurant, the owner might take the view that these people would have more time to spend on lunch than the busy young worker, and that he or she might make more money if the tables were kept free for a different  type of person. I would see that as discrimination on the grounds of age against the active retirement group. If the legislation is left as drafted, one of the individuals in the group will have to initiate a complaint rather than the actual group. That is just another example of the point we are trying to make.
In terms of whether one is a man or a woman, it is quite legitimate for some groups to be all male. For example, the Munster rugby team, by definition, is all male but I do not see any reason why they, as a group, could not take a discrimination case if they were kept out of some service. The argument that we are trying to protect all male or all female groups does not necessarily hold up.
Acting Chairman: Amendment No. 5, which arises out of proceedings, is in the name of Deputy Fitzgerald. Amendment No. 6 is an alternative. It is proposed that we discuss amendments Nos. 5 and 6 together, by agreement. Agreed.
The reason I would like to insert “statutory services” is to make clear that the Bill applies to services provided by the Government as well as services provided by others. On Committee Stage, the Minister undertook to get advice from the Attorney General on this matter. It was pointed out on Committee Stage that when the Stephen Lawrence case arose in England, problems in relation to policing, for example, were not covered in legislation, but the Minister told us that he had been assured that could not happen under our law. I would be interested to know if the Minister got legal advice on whether it would be possible to insert wording in the Bill to make it clear that all services provided by the State are covered and that members of the public can take a case under the equal status legislation if the discrimination occurred while they were accessing a service through a State service provider whether in relation to housing, social welfare or education. We have had reports from the Ombudsman on discrimination that can arise in relation to access to services provided by the State. It is important that “service”, as defined, is broadened to make it clear that State provided services are covered in the Bill. We have the phrase “business or trade” and I understand the intention was to include “business of Government”. The Bill was not designed to exclude services provided by the State from the ambit of equal status legislation. The Minister has clarified in the Bill that statu tory services are covered, so it is merely a question of whether the Minister would agree to this amendment. The phrase “generally available to the public” is meant to cover this but why can we not have a tighter definition? The insertion of “statutory or other State services” would ensure the public is aware that the Bill covers those areas.
Ms O'Sullivan: I support the points made by Deputy Fitzgerald, which were also made on Committee Stage. The Minister said that our points were covered in the Bill but I want to highlight the problem that arose in the Stephen Lawrence case. The Macpherson committee investigated this case of a person being abused by the police in Britain. The key outcome of the inquiry was that “the full force of the Race Relations legislation should apply to all police officers, and that Chief Officers of Police should be made vicariously liable for the acts and omissions of their officers relevant to that legislation”. The report further states:
Services provided by public bodies that could be provided by private individuals in the same or a similar manner, must comply with the criteria laid down in the Race Relations Act. In 1997, however, a British court ruled that even in cases where police officers provide services covered by the Race Relations Act, only the police officer concerned could be held liable. For this reason, the Home Office intends to introduce a bill to amend the Race Relations Act, and extend its application unequivocally to all areas of Government and the executive.
That was the experience of the Race Relations Act in Britain. That legislation was comprehensive but it obviously contained certain faults which had to be rectified subsequently and which were highlighted in the Stephen Lawrence case. We tabled these amendments for Report Stage in the hope that the Minister would consider the matter again and ensure there were no loopholes in the legislation in relation to statutory provision.
Mr. O'Donoghue: As I said on Committee Stage, there is no doubt that the equal status legislation will apply to the State. A service is defined in section 2 as a service or facility of any nature which is generally available to the public or a section of the public. This wide definition applies to public services as well as to those provided by the public sector. The application of the legislation to public services is reinforced by the wording of 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 this point.
Clearly, therefore, the Equal Status Bill applies to services provided by the State. My advice is that, following the 1993 Supreme Court judgment in Howard v. the Commissioners of Public  Works, it is not necessary to state in legislation that the State is bound thereby. As has been pointed out, I undertook to go back to the Attorney General's office about the matter, and I am again advised that the Bill, by implication, applies to the State and that it is unnecessary to include an express provision in this regard. I would also point out that neither of the proposed amendments would appear to achieve express application to the State. The term “statutory services” and “statutory provision” would narrow down substantially what is understood by the State. There was a doctrine known as Crown prerogative which held that the State would not be bound by any statute which did not expressly, or by implication, bind it. However, it must be said that the doctrine of Crown prerogative did not survive the 1937 Constitution, though there was a certain amount of uncertainty as to whether that was the case. However, the matter was finally clarified in the landmark Supreme Court decision Howard v. the Commissioners for Public Works. The case was a landmark because it held that the State was bound by the planning Acts and was obliged to apply for planning permission before building an interpretative centre. Deputy O'Sullivan would know about this case as her late and illustrious predecessor was involved, though on a different side of the fence from me.
The scope of the equal status legislation is not confined to those public services which are analogous to those provided in the private sector. Social welfare services, for example, have no counterpart in the marketplace but come within the scope of the Equal Status Bill. Deputies O'Sullivan and Fitzgerald referred to the judgments in the United Kingdom and it is important to address those issues. UK case law restricted the application of anti-discrimination legislation to public services which had a parallel in the marketplace, but I am advised that a similar limitation would not apply in this jurisdiction. The UK judgments were delivered against an entirely different legal and constitutional background from that of our jurisdiction. Furthermore, my understanding is that the UK legislation does not define a service but merely offers examples, while the Equal Status Bill defines a service as a service or facility of any nature.
Section 14 states that actions which are required to be done by or under statute are exempt from the legislation. Thus, for example, distinctions in the tax code based on marital status or in social welfare legislation based on age, such as pensions, will not be regarded as discrimination under this legislation. 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 matter is exempt under section 14, the obligation not to discriminate would 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 access to buildings and information or in advice or other forms of assistance. Not all actions of the State vis-à-vis members of the public can be regarded as services. There is a difference between controlling duties exercised by the State and services provided by the State. I am advised that immigration and citizenship matters, for example, 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 State. Controlling duties in the areas of policing, defence and prisons would likewise not be regarded as services. The service aspect of policing, immigration, defence and prisons will, however, come within the scope of the Bill. 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 policing area, for example, while 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 services within the scope of the equal status legislation. Furthermore, the fact that a controlling duty of the State does not come within the scope of the legislation does not give carte blanche to officials to discriminate in the exercise of such duties. Discrimination or irrationality in the exercise of such controlling duties can be challenged in a High Court constitutional action or in judicial review proceedings.
I am aware that there are groups which are very concerned with whether the State is covered by the legislation. I recently visited a conference organised by Pavee Point and that case was made and reinforced by a delegation from Pavee Point that I met. In order to assuage its fears and those of others, there is no doubt that the State is covered by this legislation – that is the advice I have from the Attorney General. The doctrine of Crown prerogative did not carry over after the 1937 Constitution and the case of Howard v. the Commissioners of Public Works made the position precisely clear. It is important to emphasise that point, though I do not want to labour it.
Ms Fitzgerald: I thank the Minister for that detailed reply, which is useful and necessary. As he said, there was much concern that State services, statutory or otherwise, were not covered in the Bill because they were not explicitly mentioned. It was felt that a case could be made that the Equal Status Bill did not apply to those services, but the Minister made it clear that there is no legal doubt but that State services are covered by the Bill, though it is not explicit. I am surprised that no wording could be found to state this explicitly in the Bill, as that is what led to the  confusion and concern. Obviously the Supreme Court case is critical in this regard. There is no doubt that the Bill applies to State services, which is very important. The distinction drawn by the Minister between the controlling duties the State may provide in relation to immigrants or citizenship will lead to much debate on where a case may be taken and where it may not. We will have to rely on case law to develop to see how this will work. However, I am pleased these amendments have led to the detailed response by the Minister and to clarity on the issue. It would be ridiculous if the Equal Status Bill did not cover services provided by the State, but it should have been stated explicitly in the Bill.
Ms O'Sullivan: I agree it is important to tease out this matter in detail. Will the Minister address the problem that arose in the British legislation? In that case a specific police officer, rather than the police force, was held liable in the Stephen Lawrence case. We need to be sure that a specific civil servant or police officer – whoever is carrying out the duty on behalf of the State – is not held liable, that it would be the State or Department concerned rather than the individual.
Mrs. Barnes: We all appreciate the comprehensive response as this matter is very important. In the context of implementation of the Bill, will the individuals or agencies concerned be aware of the responsibilities in the Bill? Could controlling duties be used as a reason for the agency or officials not to be held responsible? Is there a mechanism through which the statutory services will be made aware of their responsibilities under the Bill?
Mr. O'Donoghue: Regarding Deputy Barnes's question, there is a clear distinction between services and duties and it will not be possible for people to say a service is a duty because that will not wash.
Regarding Deputy O'Sullivan's question about the English judgment and the possibility of a police officer, prison warden or some other person being held liable against the State, the doctrine of the vicarious liability will apply. That means if a person is acting on behalf of the State in the course of his or her duties and does something that is incorrect, the State would have to carry the can. This is explicitly covered in section 42 which states “Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employment, whether or not it was done with the employer's knowledge or approval.”
Acting Chairman (Mr. McGrath): Amendment Nos. 7 arises out of Committee proceedings, amendments Nos. 19, 20 and 43 are related and  cognate and amendments Nos. 45 and 101 are also related and may, therefore, be taken together by agreement.
‘Traveller community' means the community of people who are commonly called Travellers and who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland.”.
My amendments apply to the Employment Equality Act, 1998, and the Equal Status Bill. The use of a capital “T” in the word “travellers” was sought not only by Opposition Deputies but by traveller organisations. I undertook on Committee Stage to give further consideration to this matter and I have brought forward these amendments to meet the points raised.
While it is not strictly necessary and will not have any effect on the level of protection afforded to travellers, I accept the case made by the traveller organisations for the use of a capital “T” in anti-discrimination legislation.
I have given careful thought to how best to define the traveller community. The definition posed, which, as suggested in the Select Committee, is modelled on the Northern Ireland Race Relations Order, 1996, is the most appropriate. It is intended to cover the traditional traveller community, irrespective of place of birth or whether the person concerned currently follows a nomadic way of life. It would not encompass other groups who pursue a nomadic way of life, such as Romany Gypsies or New Age travellers.
Traveller community is defined in the amendment as meaning “. the community of people who are commonly called Travellers and who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland.” I am pleased to bring forward these amendments following the interesting discussion we had on Committee Stage. I hope the Opposition spokespersons will find the definition to their satisfaction.
Acting Chairman: Since, in effect, this is a technical amendment and in the interests of saving time, can we accept that the Minister's amendment is agreed? Does Deputy Fitzgerald wish to speak on it?
Ms Fitzgerald: I welcome the Minister's amendments. On Committee Stage we pointed out that the definition of “traveller” in the legis lation was insufficient to make the Bill workable and that it might not ratify the UN Convention on the elimination of all forms of discrimination. We suggested that the Bill should amend the previous legal definition of traveller in the Housing Act, 1988. Given that there was no definition of traveller as a distinct ethnic group in legislation, we considered it important to introduce one. We had a discussion about the Northern Ireland definition in this regard, which is contained in article 5.2 of the Race Relations Act, 1997.
I hope the inclusion of this definition will ensure better protection for travellers under the legislation. Once a definition is inserted in legislation, certain people are automatically excluded. The strength of this provision and its benefit to the travelling community will depend on the case law that develops. There was some concern in the North about efforts to exclude people from the definition once it was put in place. When a definition such as this is introduced, it strengthens the level of protection, but how it works in practice depends on the emergence of case law. It will be interesting to see the case law that develops in this area.
It is preferable that there should be such a definition in this legislation. This is the first time we have a strong definition of “traveller community” in legislation by which travellers can be identified, both by themselves and by others, as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland. The insertion of this definition was sought by groups working with travellers who deemed it necessary to include it in the legislation.
Ms O'Sullivan: I welcome the Minister's amendments on the use of the capital “T” and the definition of “Traveller community”. I thank him for taking on board the view of Opposition spokespersons and that of the wide variety of traveller groups who contacted us about the legislation. Travellers feel strongly that the name of their group should have a capital “T” in the legislation. I am glad the Minister has taken that on board in his amendment.
Pavee Point was one of the groups that came before the Select Committee on Justice, Equality, Defence and Women's Rights. Its representatives referred specifically to the definition of traveller in the Northern Ireland Race Relations Act and they agreed to send us a copy of it. I am pleased the Minister used that definition in his amendment.
In the context of North-South relations, it is important that both jurisdictions use similar definitions in this type of legislation so that travellers who move from the North to the South or vice versa are covered under the same definition in legislation in the two jurisdictions.
This is a good addition to the Bill. It illustrates the importance of listening to the groups who represent the interests of the traveller community  who know better than any of us how they feel about how they are described.
Mrs. Barnes: Deputy O'Sullivan and the Minister referred to the corresponding legislation in the North. Does the wording “. a nomadic way of life on the island of Ireland.” mean that if a group of travellers are discriminated against in the North and subsequently move to the South, they can seek redress under our legislation to combat that discrimination or must that injustice be addressed under the legislation in the Northern jurisdiction? This matter is of interest, particularly in the context of the cross-Border relationships and institutions which are being established. Would a group wishing to take a case in this jurisdiction in respect of something which occurred in Northern Ireland be allowed to do so?
Mr. Collins: I congratulate the Minister on the definition of the term “traveller” which is contained in amendment No. 7. This is an historic development because it will emphasise to the travelling community the sincerity with which we intend to proceed. However, some people will continue to disagree with the definition because, when they are refused something for specific reasons, certain individuals are inclined to use the travelling community for their own ends, which is wrong. I welcome the amendment.
Mr. O'Donoghue: I thank Deputies for their contributions in respect of these amendments. Deputy Barnes inquired whether the legislation in this jurisdiction would cover discrimination in Northern Ireland. The answer is that it will not because the Republic and the North are two separate jurisdictions. The existence of the cross-Border bodies will not make any difference in this respect. However, if a group of travellers enter the South and are discriminated against, the fact that they do not reside in this jurisdiction would not make any difference in terms of the legislation because they cannot be discriminated against.
This amendment, which we discussed briefly on Committee Stage, was suggested by the Irish Ladies Golfing Union and it relates to the discrimination which continues to exist in certain clubs. If the definition included the term “whether before or after the commencement of this section”, it could deal effectively with discrimination which occurred or will occur before, during or after the passage of the legislation.
There is a concern among women golfers – this could also apply to women who are discriminated against by other clubs – that we should ensure that ongoing discrimination is properly  covered under the legislation. They believe there is a possibility that account will not be taken of past discrimination. I refer, for example, to instances where women were not allowed to hold certain types of membership, particularly full membership, of golf clubs. That discrimination needs to be taken on board in terms of the sanctions set out in the legislation.
Mrs. Barnes: I am sure the Minister, like other Members, has been presented with cogent and well argued reasons from members of the Irish Ladies Golfing Union regarding the difficulty of achieving what the Equal Status Bill is attempting to achieve in respect of full membership and full rights, which women members of golf clubs have been denied for so long. The Employment Equality Act and the Equal Opportunities Act, 1977, contained clauses which allowed, within the terms of those Acts, what would be seen as positive or affirmative action to allow steps to be taken to bring balance to unbalanced, unfair or discriminatory situations.
The members of the Irish Ladies Golfing Union were wondering if we could strengthen the Bill so that influence could be brought to bear in order to insist that, given their long years of associate membership and membership of particular clubs would not, they would not find themselves at the end of a long waiting list to gain full membership or be obliged to pay exorbitant fees. The type of discrimination which did not allow these women to hold full membership continues to work against them. They believe it would take between 50 and 100 years, if not more, to achieve a balance and to obtain the full membership rights which have always been enjoyed by men, unless, as was the case with the employment legislation, some form of positive or affirmative mechanism is included in the Bill. I am anxious to hear the Minister's views on this matter.
Mr. O'Donoghue: I understand that what is intended by Deputy O'Sullivan's amendment – judging by her comments it is also Deputy Barnes' intention – is to ensure that golf clubs take into account the past associate membership of women rather than treating them as if they were becoming members for the first time. This is not, however, what the proposed amendment achieves, nor would it be my intention to legislate against discrimination which existed in the past. The Bill does not have retrospective effect. However, the effect of section 3(1)(f2>a) is that discrimination which occurs after the commencement of the Act but which is based on a ground which existed in the past, regardless of when, will be covered by the Bill. Since associate membership is not a discriminatory ground, Deputy O'Sullivan's amendment does not achieve its intended purpose. I do not see how we can legislate to cover the position of women who have been associate members of golf clubs. Whether charging such persons full fees would constitute  discrimination would depend on the circumstances of the case.
The legislation does not prevent positive action being taken. If, for example, a club wishes to act in a positive fashion, the legislation will not prohibit it from doing so. I hope that offers the Deputy some reassurance. I cannot see how I could legislate to cover the kind of eventuality to which Deputies O'Sullivan and Barnes refer.
Ms O'Sullivan: The difficulty is that when these women would have joined their golf clubs the memberships fees would have been much lower in certain cases than they are at present. I accept that perhaps this applies more to the Dublin area than to other parts of the country. I do not know if the Minister could spell it out any more clearly that it is the intention of the legislation that golf clubs should take full account of the number of years during which people have been members. In effect, many members could only hold associate membership because they were women. Will the Minister indicate his intention that clubs should not introduce enormous entry fees in respect of people who could not become full members in the past?
Mrs. Barnes: I wish to reiterate that a great number of women were not presented with a choice in respect of associate membership. Such membership was the only avenue of entry open to them and it was also an absolute discrimination against them. Not alone did it not allow them full membership, it also denied them voting rights or those rights relating to the operation or funding of their clubs, to which they contributed greatly.
The Employment Equality Act contains a built-in acceptance that, in areas where women, against their will, were heavily discriminated against and where an imbalance was obvious, there could be a directive that this would not be seen as discrimination within the broad terms of the legislation but that it would actively and affirmatively rebalance an ongoing or endemic discrimination, which associate membership has been recognised as being. It was in the context of what was provided in the Employment Equality Act, 1998, that they ask that something similar could be built in.
Ms Fitzgerald: It is not always easy to make up for past discrimination. One often cannot and  people have suffered in many areas because of discrimination. There is an appalling history in golf clubs of exclusion and discrimination and it should never have happened. The Minister stated that positive action is possible and the least one would expect is that the long period of associate membership which women have held at various clubs should be taken into account by them, together with the discrimination they imposed. The clubs argue that women pay lower fees and have special conditions, but women were not allowed to become full members whereas they are now and they face enormous costs. The clubs should not add to previous discrimination by charging exorbitant fees for women to become full members. Basic decency and common sense should be expected from the clubs.
Mr. Collins: I agree with previous speakers. My family is heavily involved in golf. However, discrimination only occurs in certain clubs. I am a member of a club where there is no discrimination. It may not have the same status as others but it has more than those in Limerick and Kerry. However, there is a line of thought among female golfers that while they wish to become full members, they do not want to pay the full fees. They must resolve that issue, but when the Bill is enacted they will become full members. I do not envisage them being charged the full fees. I would hate to be the club captain or secretary who charges full fees to women.
Mrs. Barnes: Is the Minister aware that certain clubs, which may be small in number but loom large in terms of the psyche of the nation, of which women are associate members do not allow them into certain areas of the clubs, such as bars etc? I find that apartheid to be so extraordinarily offensive that something should be done about it in order to prevent it from continuing.
This underlines my earlier point that there is nothing to prevent clubs from taking positive action, such as that mentioned by Members opposite. While I cannot deal in the legislation with the issue of what fees should be paid by  female members of golf clubs, my recommendation is that golf clubs might take the opportunity of discussing the matter and how it might be best resolved with the Equality Authority and I hope that happens. With regard to golf generally, there is no danger of me being discriminated against because on the few occasions when I tried to play the game I lost the ball and I do not believe in troubling St. Anthony too often.
Ms O'Sullivan: It is a shame that the Minister has not had the opportunity to play more often given all the fine golf courses in Kerry. I do not play and I have never lost a ball because I never tried to hit one. The problem in this area is that there is an entrenched culture in certain golf clubs which will be difficult to eradicate. This legislation will go some way towards that. My amendment would have forced them to go a little further. If we could retain the sanction of removing Government grants and so on from them, that would strengthen the legislation further. It is a culture that has no place in the modern world and the sooner golf clubs realise that the better. It has been removed from most other leisure activities but, sadly, it remains in certain areas. The gentlemen concerned must enter the modern world and the new millennium quickly.
These amendments deal with indirect discrimination. The clause to which I refer seems to just limit such discrimination to the providers of services as opposed to the original definition in the 1997 Bill which was wider and included, for example, clubs, education, accommodation and other areas covered by other Parts of the Bill. I seek to restore that wider scope.
Ms Fitzgerald: This relates to the definition of “indirect discrimination”, which was much stronger in the 1997 Bill. It has been narrowed in this legislation and deals only with indirect discrimination with regard to services. I prefer the inclusion of the 1997 definition, which included clubs, education, accommodation etc. It would strengthen the definition. My amendment proposes that one of the grounds should be refusing  or failing to do all that is reasonable to prevent indirect discrimination from occurring in a club. That obligation should be placed on providers of services. They should make every effort and ensure that there is no indirect discrimination.
Mr. O'Donoghue: The amendments are unnecessary. Under section 4(6), as amended by the select committee, the concept of reasonable accommodation for the needs of people with disabilities extends to all the areas covered by the Bill, including registered clubs. Due to the cross reference to section 4(6) in section 3(1)(f2>c)(ii), the concept of indirect discrimination applies to all these areas also. The amendments are unnecessary.
Ms O'Sullivan: Why did the Minister include the phrase “by the provider of a service” if the other cross references make indirect discrimination broader than only the providers of a service? Why was the phrase included?
Ms O'Sullivan: If the Minister is assuring me that there is no devious reason for the inclusion of the phrase, I must accept that the legislation covers indirect discrimination in the wider context. I will withdraw the amendment.
This amendment would not make sense without the addition also of amendment No. 15 which is directly related. The amendments would allow indirect discrimination to cover a case where a minority group can comply with a condition but only by suffering a detriment. They may be able to comply with a condition as set out in the Bill but I want to ensure that, in complying with it, they would not suffer a detriment.
Their ability to comply should not be the only criterion because they could suffer as a result of complying with a condition and this should be covered in the Bill. This amendment was requested by the Irish Ladies Golfing Union because of their detailed experience with regard to conditions with which they can comply but which cause them some pain. The purpose of the amendment is to address that aspect.
Mr. O'Donoghue: I cannot accept the amendments. The definition of indirect discrimination is equivalent to that in the 1997 Bill and follows generally accepted international norms for defining indirect discrimination. The amendment would, when considered in conjunction with section 3(1)(f2>c)(iii), introduce considerable uncertainty into the definition. If a person cannot comply with a condition, it is possible to establish whether a particular category of person suffers disproportionately from the requirement.
However, if, as the Deputy suggests in the amendment, the degree of compliance with the requirement is taken into account, it becomes extraordinarily difficult to determine whether the requirement has a disproportionately adverse effect on a particular category. This is a repeat of the Committee Stage amendment with which I dealt in great detail in explaining the position. However, if I did not do so then, I hope I have given sufficient detail now.
Amendment No. 17 states, “In page 8, line 13, to delete “reasonable” and substitute “necessary”. The section deals with circumstances in which discrimination shall be taken to occur. It defines indirect discrimination and the amendments call for a change in the test as set out in the Bill. The test is whether the obligation is reasonable rather than requiring that there should be justified and objective grounds unrelated to the person's sex or marital status.
The amendment suggests that it should be changed to read that the obligation to comply with the condition cannot be objectively justified as being reasonable in all the circumstances of the case. I also suggest in amendment No. 17 that the word “necessary” should be substituted for “reasonable”. The amendments would strengthen the provision and objectify the position. Subjectivity is built into the measure as it stands and the amendments would make it stronger. The Irish Council for Civil Liberties suggested that this amendment would strengthen the Bill. It considers that the inclusion of the phrase “objectively justified” is important in terms of case law in the future.
Mr. O'Donoghue: As I said on Committee Stage, the test is similar to the wording of section 31(1)(f2>d) of the Employment Equality Act, 1998, which deals with indirect discrimination on grounds other than gender. It is also unchanged  from the Equal Status Bill, 1997. I do not consider that it is appropriate to amend this provision in the way suggested by Deputy Fitzgerald as it would create an unnecessary departure from the provisions of section 31 of the Employment Equality Act.
It will be a matter for the Director of Equality Investigations to decide whether the conditions in question have a discriminatory effect which cannot be justified as being reasonable in all the circumstances of the case. It is not a matter for subjective judgment and it is not, therefore, necessary to say that the justification is objective.
Acting Chairman: Amendment No. 18 arises from Committee Stage proceedings. Amendments Nos. 22 to 26, inclusive and 102 are related to amendment No. 18 and all may be discussed together. Is that agreed? Agreed.
The purpose of the amendment is to add linguistic group to the ground of race, which includes whether a person is of a different race, colour, nationality or ethnic or national origin. The amendment was suggested by the Refugee Council in response to the experience of many people who have come to this country in recent years and who are of a different race, colour, nationality or ethnic or national origin. Linguistic group is a significant aspect in terms of where they feel they may be subject to discrimination. Many languages are spoken by people who are currently on this island and the Refugee Council feels strongly that these should be covered in equal status legislation.
Although I may refer to them later, the subject of the other amendments was considered in detail on Committee Stage. These include the trade union membership ground and the homelessness ground, which was suggested by the Coolock Law Centre because of the problem of discrimination with regard to housing. If people are in receipt of rent allowance, landlords do not want to accommodate them. This issue has only arisen in recent years, particularly since the obligation on private landlords to register with local authorities. Many of them do not like this requirement and they do not want to accept people with a rent allowance because it would identify them as landlords. No legislation should provide cover for such activity. This is an opportunity to ensure this type of discrimination cannot be practised and that there is legislation under which people can take action if subjected to such discrimination.
Amendments Nos. 24 and 25 relate to discriminatory grounds of refugee and asylum seeker. They were tabled as one amendment for Committee Stage which read: “that one is a refugee or an  asylum seeker.”. In response to the Minister on Committee Stage we have submitted them as two separate amendments. We are of the strong view that we should take account of the growing number of people coming to Ireland seeking refugee status. We have separated the two areas – the refugee and the asylum seeker – on the basis that the Minister indicated there might be some confusion if we put the two areas in the one amendment. We must ensure there is no discrimination in either category in regard to access to services. There is some evidence in the media and from discussions with individuals that there may be discrimination with regard to the provision of services. We want to ensure there are no grounds for such discrimination, that it is covered by the legislation and that these people can go to the Equality Authority, if discriminated against in regard to access.
There is a growing tendency for people to behave in a way that might be interpreted as racist where they are denying access to a service on grounds of race, asylum seeking or refugee. These grounds are inter-related. It is important that the legislation defines exactly where discrimination will not be tolerated and it should not be tolerated under any of these grounds. We are seeking to include these extra grounds in addition to the nine already in the legislation. The experience this year indicates that these amendments are necessary.
I support amendment No. 26 dealing with a political group or ideology, in the name of Deputy Fitzgerald. Our amendment No. 102 deals with membership of trade unions, a matter on which we have spoken on Committee Stage. As a member of the Labour Party I feel strongly that a person should not be discriminated against because he or she happens to be a member of a trade union.
Ms Fitzgerald: If the Minister read The Irish Times this morning he would have seen an article about a woman who is a lecturer in Cork who said: “I thank God I drive to work because to walk on the streets of this country as a black person is a nightmare”. It is clear there are racist attitudes and that many people experience discrimination because of their colour and race. We live in a society that is changing fast and we have to deal with new issues of integration, refugees and asylum seekers, all of which pose new challenges.
In the amendments which Deputy O'Sullivan and I have tabled we are seeking to extend the grounds covered by the Bill. Everyone in the House welcomes the extension and the nine different grounds covered, but they are not comprehensive. I assume the Department will initiate the review, which I hope will be comprehensive, in three years and five years and that the grounds will be extended because they are not comprehensive at this stage. The Minister has said this is not the time to introduce new amendments and that they require complex consideration. One  area where we consider it should be extended is in regard to trade union membership. The ICTU would consider this an extremely important issue for trade union members who may still be discriminated against because of their membership of a trade union. Obviously this is much broader than the concept of unfair dismissal. We are also talking about the possibility that, because one is a member of a trade union, it would discriminate against people in regard to access to employment opportunities. It seems reasonable that there should be a constitutional protection in relation to this issue.
Deputy O'Sullivan has given a number of examples on social welfare grounds particularly in the area of accommodation which is becoming an issue. We have separated the amendments which seek to provide protection for refugees and asylum seekers. While there would be some coverage under the Bill on grounds of race or ethnicity, it is clear that if a protection is built in for the person, a refugee or an asylum seeker, there would be more comprehensive protection based on their legal status.
We have already had an interesting explanation from the Minister on the duties of the State and how one has to distinguish between the duties of the State, the obligations in regard to custom duties or immigration and the services supplied. When Deputy O'Sullivan and I tabled these amendments on Committee Stage we were talking about the services as they are meant to apply to refugees and asylum seekers and were not trying to change immigration policy. The Minister commented in detail on our proposal and, I think, misunderstood it. He seemed to suggest that in terms of legal rights we were trying to open the floodgates. That was not the intention. The intention was to ensure that refugees and asylum seekers would have the most comprehensive cover possible in regard to discrimination, that they would be able to go to the Equality Authority and have the same protections relevant to their status and whatever services they are entitled to in either category – as a refugee or as an asylum seeker – without discrimination by those delivering the services, the State or anybody else. We have tabled the amendment as two separate categories, refugee and asylum seeker.
The Minister's points about immigration and the huge demand on services do not hold up in relation to this Bill. This is about giving a more comprehensive service to refugees and asylum seekers. There may be discrimination on grounds of legal status which should not happen. The people in this category should have access to the Equality Authority as it develops. Grounds of political opinion have been sought by the Irish Council of Civil Liberties which felt it was reasonable to include this in equal status legislation. The European Convention on Human Rights guarantees protection from discrimination on these grounds as well as on other grounds, for example, political or other opinions, social origin, property,  birth or other status. It is important to note this in the context of the North-South discussions and in the context of bringing in new human rights legislation. Our legislation should aspire to come as close as possible to the European Convention on Human Rights. It also brings Irish equality legislation into line with the Good Friday Agreement. The stronger the protection we can give, through amending the grounds, the closer we will be to the European Convention on Human Rights and to other human rights legislation that it is intended to enact.
We are seeking to extend the category of persons who can seek comprehensive support from an equality authority. It means that people will have more protection from discrimination. I appreciate that to introduce an amendment of this nature at this stage one must tease out the implications of it and there is a deal of work involved in doing that. It is important that this legislation be put on the Statute Book. We do not want another delay of six years. This legislation should have been on the Statute Book ten or 15 years ago and it has been a long and tedious process to get to this point. I welcome the legislation and I congratulate the Minister for introducing it and steering it through the Houses.
The Equality Authority is working well in its initial stages. If we can extend the grounds and provide broader coverage, we will get much more comprehensive legislation. In a changing society, where issues of immigration and the rights of refugees and asylum seekers are to the fore and where there is concrete evidence of racism emerging and of particular difficulties which those groups are experiencing, it is important that they are covered as comprehensively as possible in equal status legislation.
Mrs. T. Ahearn: I consider this section the cornerstone of the Bill because we are defining where discrimination under the Bill, when enacted, will have taken place. We must be cautious and careful with this section. I would prefer if we erred on the side of being overly inclusive rather than having omissions. If there are omissions, experience shows that discrimination can then take place because it will not come under the legislation. Therefore, under no circumstances should we leave out definitions which we feel should be included. I congratulate Deputies Fitzgerald and O'Sullivan for trying to include these different categories.
Recommendations have come from many interest groups from which I have received much correspondence. These groups have put a great deal of thought into the Bill and we should listen carefully to their submissions.
It is unwise to refer back to the 1997 Bill because society has changed more in the past two years than over the past decade. That is why the Minister should accept amendment No. 18, which proposes to insert the words “or they are of a different linguistic group”. Society is becoming more multi-cultural. Whereas it was unheard of  before when one walked the streets of any town or city, we now hear languages which in past we would have to go to London to hear. It is important to include this amendment in the Bill and under no circumstances to allow discrimination, which we know could arise, to be covered by the Bill.
Amendment No. 23 in the name of Deputy O'Sullivan refers to those who are in receipt of social welfare support for rental of properties. Those of us involved in local authorities would be ignoring reality if we did not accept that such people are discriminated against at present. People who are on the waiting list for local authority houses and are in receipt of social welfare rental support find it far more difficult to find accommodation and to get landlords who will accept them than those who are in employment and are paying from their own resources. This will be an ongoing problem because there is a housing crisis. It is important that amendment No. 23 is included in the Bill.
I ask the Minister to err on the side of greater definition rather than on the side of omission. It will take too long before the Bill, when enacted, is reviewed and what we know today should be included.
Mrs. Barnes: Circumstances on all levels have changed extraordinarily since the introduction of the first Equal Status Bill. Perhaps it is appropriate that the Bill is being taken now. We can strengthen it in ways which deal with circumstances which we had not anticipated would occur so quickly.
People who have come to Ireland seeking refugee and immigrant status remind us of the huge amount of work on education and leadership that must be done. This is why I honour this and the other House. Legislation is the cornerstone of justice and the behaviour following from that. That is why our role, as legislators, is so important. Without the foundation stone of legislation, we do not have the capacity and influence to bring about the change in attitudes and behaviour which has happened so dramatically in other areas of equality during the past 25 years.
The attitudes to women at work and to equality of pay and opportunity would never have changed and the change would not have accepted if the legislation was not put in place and the Employment Equality Agency and other agencies did not exist to win, sometimes slowly and with struggle, what was won. The important thing is that, in doing so, the legislation has changed attitudes and made a fairer and more just society.
The next hurdle to be taken is in regard to present circumstances. I am optimistic because the legislation was introduced in its integrity and with the will of the Minister, which is apparent. We are setting down another foundation stone for the next challenge ahead, which is a multi-cultural, pluralist society.
I welcome amendment No. 18, which has to do  with different linguistic groups. Indeed, while sitting here I have been wondering if we could introduce an amendment about accents in the Irish context, because there are times when people – not Kerry people, I hasten to add – living in certain areas are discriminated against because of their accent and address. However, I will not table such an amendment today.
I welcome the amendment in the names of Deputies O'Sullivan and Fitzgerald which has to do with the trade union membership ground. With the changing economy, the great work on social partnership and the aggressive nature of economic productivity the rights of trade union membership must be protected. We have to make sure that discrimination cannot occur with regard to working conditions or accommodation due a person's trade union membership. The welfare ground has been mentioned and both the Acting Chairman, Deputy McGrath, and the Minister for Justice, Equality and Law Reform are well aware of the kind of discrimination that not only occurs but also is exacerbated by the current housing crisis.
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