Equal Status Bill, 1999: Report Stage (Resumed).

Wednesday, 2 February 2000

Dáil Eireann Debate
Vol. 513 No. 4

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An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  We resume on amendment No. 25 which has already been discussed with amendment No. 18.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  I move amendment No. 25:

In page 9, between lines 7 and 8, to insert the following:

“(k) that one is an asylum seeker and the other is not (in this Act referred to as the 'asylum seeker ground').”.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  We are not discussing this amendment now. Amendment No. 25 has already been discussed with amendment No. 18.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): Information on John O'Donoghue  Zoom on John O'Donoghue  My understanding is that it would not be in accordance with Dáil procedures to reopen the debate on amendment No. 25.

Amendment put and declared lost.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  I move amendment No. 26:

In page 9, between lines 7 and 8, to insert the following:

“(k) that one is affiliated to a political group or ideology and the other is not (the ‘political affiliation ground').”.

Amendment put and declared lost.

Amendment No. 27 not moved.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  I move amendment No. 28:

In page 9, between lines 15 and 16, to insert the following:

“(5) The Minister shall not later than five 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).”.

[939] We had quite a full discussion on this earlier. The intention of this amendment is to ensure that after the two year review there would be a five year review which would specifically assess whether there was a need to add to the grounds in the Bill.

The Minister has already given a fairly clear indication that the grounds will be reviewed after two years, at which stage we can judge whether a further review is necessary. I tabled the amendment to ensure continuous review, which is important in this area of legislation. We have seen, since the introduction of the Bill, how critical it is to include issues concerning refugees and asylum seekers, for example, in this type of legislation. That has become even more apparent in the past few months. I wanted to ensure there would be continuous review but I take the points made by the Minister in his original response. Will he reassure the House that the grounds will be reviewed?

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I assure Deputy Fitzgerald that the intention is that after a period of two years there will be a review in accordance with section 3(4) of the Act. This will examine the grounds to assess the need for additional discriminatory grounds. There is a similar requirement in the Employment Equality Act which was passed last year. The possibility of a further review after that two year review can be considered when the two year review is completed.

Amendment, by leave, withdrawn.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Amendments Nos. 29 and 30 are out of order.

Amendments Nos. 29 and 30 not moved.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Amendment No. 34 is related to amendment No. 31 and both may be discussed together.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  I move amendment No. 31:

In page 10, line 4, before “an” to insert “except for the purposes of subsection (2),”.

This amendment and amendment No. 34, which was tabled by Deputy Fitzgerald, are of similar intent, which is to ensure that educational establishments will not be able to refuse a person with a disability his or her lawful entitlement to an appropriate education on the basis that the cost would be more than “nominal”, which is the wording used in this Bill and the Employment Equality Act. We do not agree with the use of the phrase “a cost other than a nominal cost” but, unfortunately, our specific amendments on that matter have been ruled out of order because they would involve a cost to the Exchequer.

This amendment relates to educational establishments. As there is already a constitutional right to education, the references to “a cost other than a nominal cost” should not be used in [940] relation to educational establishments. In other words, we want it clearly stated that a person with a disability is entitled to an education in this State. The definition of “educational establishment” includes all establishments up to third level. Under the Constitution, a person with a disability is clearly entitled to an education. There have been a number of court cases in this regard, one of which is ongoing.

This is a very important measure, particularly in light of a report published before Christmas called “Towards Equal Citizenship”, which monitored the implementation of the report of the Commission on the Status of People with Disabilities. I was horrified to read the Department of Finance has rejected proposals for social and health rights for people with disabilities. That is another issue and does not relate to educational establishments; however, it is a clear indication of a real resistance to the rights of people with disabilities being properly enshrined in legislation. We want to ensure their right to an education is not in any way diluted by the cost to an educational establishment. The phrase “a cost other than a nominal cost” is written into this Bill. This is a very important amendment and we feel very strongly about it.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  Our previous discussion on this amendment illustrates the real gap in protection for the disabled. If the Minister does not accept this amendment there will be no statutory onus on private institutions which receive large amounts of money from the State to make provision in their establishments for young people with special disabilities. They might do so themselves, but it appears the State is not going to oblige them to do so in its equal status legislation. Effectively, there is no statutory protection for anyone with a disability attending a private school. There is no guarantee that the facilities and resources that might be needed will be put in place. That was implied by our previous discussion on this.

I want the Minister to address this. Does he accept we are relying on the goodwill and ethos of such schools? Of course, it is to be hoped that most private schools will respond and take every necessary step. However, it seems a shame they are not included in this equal status legislation to ensure that happens. I understand this arises out of the advice on the constitutional position. However, it seems strange there is no obligation on a school receiving large amounts of money from the State to take the necessary action to provide reasonable accommodation for the needs of people with disabilities. I would like some reassurance from the Minister about how people in this situation will be protected if this amendment is not accepted. Will he clarify the interaction between this Bill and the Education Act, in terms of access to education for all our citizens?

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I inserted section 4(5) on Committee Stage to lay to rest any uncertainty [941] about the relationship between the nominal cost threshold in this Bill and the provisions of the Education Act, 1998. As I explained then, the provisions of the Equal Status Bill were developed in close consultation with the Department of Education and Science and do not in any way dilute the provisions of the Education Act, 1998, dealing with disabilities, to which Deputy Fitzgerald referred. However, to allay fears which had arisen, I inserted section 4(5) which ensures the equal status legislation cannot be interpreted as being prejudicial to the provisions of the Education Act.

I cannot see what purpose is served by the Deputies' amendments. Deputy O'Sullivan's amendment would render the Bill constitutionally vulnerable since it would put an open-ended obligation on educational establishments, most of which are privately owned, to make reasonable accommodation for the needs of people with disabilities, irrespective of the cost involved or the extent of State subvention.

Section 7(2)(a) of the Education Act gives the Minister for Education and Science certain functions in relation to funding, including the funding of support services for students who have a disability. Section 9(a) requires schools to use their available resources to ensure that the educational needs of all students, including those with a disability, are identified and provided for.

Section 15(2)(g) requires a board of management to use the resources provided to the school from moneys provided by the Oireachtas to make reasonable provisions and accommodation for students with a disability or other special education needs, including, where necessary, alteration of buildings and provision of appropriate equipment.

It will be noted that section 15(2)(g) of the Education Act, which was framed to take account of the Supreme Court finding on the Employment Equality Bill, 1996, states that the reasonable provision and accommodation for students with disabilities is to be done from resources provided to the school from moneys provided by the Oireachtas. It thus avoids any implication that school authorities must use their own resources for this purpose. The wording of the Equal Status Bill is thus consistent with the requirements of the Education Act, 1998, and does not dilute it in any way.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  The problem I still have is that there is no obligation, as far as I can tell, on the school to apply for or seek resources from the State to facilitate the education of a person with a disability. If I have a child with a disability, live in a particular area and want my child to go to the local school, what obligation is there on the local school to take my child? What obligation is there on that school to apply to the Department of Education and Science for the relevant funding which might be needed because of the specific disability my child might have? I am still not clear that the educational rights of a child with a dis[942] ability are protected under this or the education legislation.

This equal status legislation is supposed to protect the rights of the relevant groups, one of which is obviously people with a disability. I still do not believe there is an obligation to ensure the rights of that child to an education are protected. Will the Minister clarify the issue I raise? It is very important issue, particularly in the light of the type of responses we have got recently as regards the rights of people with disabilities. For example, the disabilities Bill which was to be published this year will not be published until 2001. I mention also the response to the report to which I referred earlier in the debate.

We need a guarantee that the right of a person with a disability to an appropriate education is vindicated. We also need to ensure that educational establishments cannot simply say that maybe the person has a right but that they do not have to fulfil that right. It is a real fear that we may appear to be giving people rights but, in fact, we are not.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  Is there not a large gap and a contradiction between what the Education Act states – I accept it states that there is an obligation on schools to look after the needs of those with a disability – and bringing in equal status legislation which does not address all schools? The Minister gave an example in a previous debate on this Bill. He said a privately owned third level college, which is not well off, would have great difficulty providing the facilities required and reasonable accommodation for the disabled. The Minister said that could drive colleges to the wall.

Surely as a Government and State, we should lay down in statute minimum criteria which ensure access to private third level colleges or private schools for the disabled. Even if it is contained in the Education Act, should we not, when we introduce equal status legislation – one of the groups it is specifically meant to address is the disabled – reinforce that in this legislation? If we cannot do that in our legislation, do we not have a very serious problem?

From a constitutional point of view, we cannot even say to a private third level college, which will deal with young people and which young people will want to attend, that it must provide accommodation for disabled students and that that is part of the type of service we expect it to provide in Ireland in the 21st century. It illustrates the point Deputy O'Sullivan has often made that we need this constitutional amendment on disability if we cannot, in equal status legislation, lay down minimum and reasonable standards for those with a disability who would attend educational establishments which happen to be private.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  Deputy O'Sullivan and Deputy Fitzgerald have made a reasonable case but what they are saying is what was, in the final [943] analysis, considered by the Supreme Court when it discussed the Employment Equality Bill. I indicated to this House on a number of occasions that the Employment Equality Bill was considered in its entirety by the Supreme Court but that the Equal Status Bill was not.

There was a similar provision regarding reasonable accommodation in the Equal Status Bill to that in the Employment Equality Bill. The position is that the Supreme Court, as we know, held the reasonable accommodation provision in the Employment Equality Bill to be unconstitutional having regard to the right to private property under the 1937 Constitution. It followed that the reasonable accommodation provision, which was included in the Equal Status Bill, must be unconstitutional as well. In those circumstances, there was an obligation on the Government to amend the Equal Status Bill to ensure, in so far as we could, that the legislation was within constitutional parameters. There is no doubt that if it had been left as it was, it would have been outside the constitutional parameters because the Supreme Court had decided so in the Employment Equality Bill case.

In those circumstances, the legislation was amended. I do not believe we serve any purpose by confusing the right to an education on the one hand with the issue of reasonable accommodation or nominal cost accommodation on the other. [944] Under our legislation every person has the right to an education and it is the function and duty of the State to provide that education. The issue of what type of accommodation should be provided is one which was circumscribed in the context of the Employment Equality Bill by the Supreme Court and this legislation follows that path. I do not believe we had any other choice.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  Again I refer to the fact that education is a constitutional right, so it is different from other services in that regard. As regards my amendment No. 30, which was disallowed, I would reject the exact wording which is used and say that the question of nominal cost is wording which I would prefer not to see in the legislation. Specifically where it relates to education there is a difference. We should ensure that nominal cost aspect of the legislation does not deprive a person with a disability of educational opportunities in an area which is close to their home. There are important aspects as regards the life of a person with a disability. For example, travelling a distance may not be as much of an obstacle for a person who does not have a disability. It is important we push the boat out as far as we can, despite the constitutional constraints, by ensuring that this legislation is as strong as possible as regards the rights of people with a disability. This amendment would strengthen those rights without being challenged constitutionally.

Amendment put.

Barrett, Seán.
Bell, Michael.
Belton, Louis.
Boylan, Andrew.
Bradford, Paul.
Broughan, Thomas.
Bruton, John.
Bruton, Richard.
Burke, Ulick.
Carey, Donal.
Clune, Deirdre.
Connaughton, Paul.
Crawford, Seymour.
Currie, Austin.
D'Arcy, Michael.
Deasy, Austin.
Deenihan, Jimmy.
Dukes, Alan.
Durkan, Bernard.
Enright, Thomas.
Farrelly, John.
Finucane, Michael.
Fitzgerald, Frances.
Flanagan, Charles.
Gilmore, Éamon.
Gormley, John.
Gregory, Tony.
Hayes, Brian.
Higgins, Jim.
Higgins, Joe.
Higgins, Michael.
Hogan, Philip.
Howlin, Brendan.
Kenny, Enda.
McCormack, Pádraic.
McDowell, Derek.
McGahon, Brendan.
McGinley, Dinny.
McGrath, Paul.
McManus, Liz.
Mitchell, Gay.
Mitchell, Olivia.
Naughten, Denis.
Neville, Dan.
Noonan, Michael.
O'Keeffe, Jim.
O'Shea, Brian.
O'Sullivan, Jan.
Owen, Nora.
Penrose, William.
Quinn, Ruairí.
Rabbitte, Pat.
Reynolds, Gerard.
Ring, Michael.
Ryan, Seán.
Sargent, Trevor.
Sheehan, Patrick.
Shortall, Róisín.
Stagg, Emmet.
Stanton, David.
Timmins, Billy.
Upton, Mary.
Yates, Ivan.
[945]

Ahern, Bertie.
Ahern, Dermot.
Ahern, Michael.
Ahern, Noel.
Andrews, David.
Ardagh, Seán.
Blaney, Harry.
Brady, Johnny.
Brady, Martin.
Brennan, Séamus.
Briscoe, Ben.
Browne, John (Wexford).
Byrne, Hugh.
Callely, Ivor.
Carey, Pat.
Collins, Michael.
Cooper-Flynn, Beverley.
Cowen, Brian.
Cullen, Martin.
Daly, Brendan.
Dempsey, Noel.
Dennehy, John.
Doherty, Seán.
Ellis, John.
Fahey, Frank.
Fleming, Seán.
Flood, Chris.
Fox, Mildred.
Gildea, Thomas.
Hanafin, Mary.
Harney, Mary.
Haughey, Seán.
Healy-Rae, Jackie.
Jacob, Joe.
Keaveney, Cecilia.
[946] Kelleher, Billy.
Kenneally, Brendan.
Killeen, Tony.
Kirk, Séamus.
Kitt, Michael.
Kitt, Tom.
Lenihan, Conor.
McCreevy, Charlie.
McDaid, James.
McGennis, Marian.
McGuinness, John.
Martin, Micheál.
Molloy, Robert.
Moloney, John.
Moynihan, Donal.
Moynihan, Michael.
Ó Cuív, Éamon.
O'Dea, Willie.
O'Donoghue, John.
O'Hanlon, Rory.
O'Keeffe, Batt.
O'Keeffe, Ned.
O'Rourke, Mary.
Power, Seán.
Roche, Dick.
Ryan, Eoin.
Smith, Brendan.
Smith, Michael.
Treacy, Noel.
Wade, Eddie.
Wallace, Dan.
Wallace, Mary.
Walsh, Joe.
Woods, Michael.
Wright, G. V.

Amendment declared lost.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  I move amendment No. 32:

In page 10, between lines 8 and 9, to insert the following:

“(g) a club for the purposes of section 8,”.

Amendment put and declared lost.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Amendment No. 33 is out of order.

Amendment No. 33 not moved.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  I move amendment No. 34:

In page 10, between lines 13 and 14, to insert the following:

“(6) An educational organisation or institution shall not be allowed to rely on subsection (2) to lessen the rights of individuals who have a disability or who have special educational needs as provided for in the Education Act, 1998.”.

Amendment put and declared lost.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  I move amendment No. 35:

In page 10, between lines 13 and 14, to insert the following:

5.–“A public authority shall within 6 months from the passing of this Act submit to the Authority a scheme which shall show how the public authority proposes to fulfil the duties imposed by this Act.”.

I proposed this amendment on Committee Stage and there was some discussion on the matter. I accept some of the points made by the Minister but I still believe that this would constitute a proactive measure to ensure that public authorities would adopt a positive stance with regard to this legislation and would make the effort at an early stage to set out how they would implement the provisions of the Equal Status Bill. On Committee Stage the Minister suggested that the term “public authority” might be difficult to define and that it might be difficult to decide which authorities would be included under such a definition. I accept this point but it is not an insurmountable obstacle. The positive aspects of this measure would be that there would not be any lethargy on the part of bodies to ensure that they think about this legislation and do their best to ensure that it operates within their organisations. Health and safety, anti-bullying measures and working time applies more to the employment equality legislation. In all of these matters, some bodies are slower than others in implementing the laws. In many places, for example, health and safety regu[947] lations or other measures like that are not really considered at all until somebody draws attention to it. The purpose of this amendment is to encourage bodies to be proactive rather than wait until somebody tells them they have to implement this legislation.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I am not convinced of the benefits of this amendment. As I explained on Committee Stage, this Bill covers nine grounds with many exemptions across diverse areas of service provision both in the private and public sectors. It is not clear why this obligation should apply only to public authorities, or why a scheme submitted only six months after the passing of the Act, irrespective of when it is commenced, could contain useful material on the practical application of the Act as opposed to broad aspirational statements. In any event, Departments and other public bodies are committed through customer service plans to equality of opportunity. There are also extensive functions given to the authority relating to codes of practice and equality reviews. These functions, and in particular the authority's power to conduct equality reviews of bodies with more than 50 staff, have the potential to prompt practical anti-discrimination policies and measures in public authorities. Furthermore, there is not a comparable requirement on public bodies in matters to which the Equality Employment Act, 1998, applies.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  I remind the Minister that when we had the hearings on this Bill in committee, quite a number of groups recommended that this sort of positive action, and positive encouragement should be built into the legislation. It was hoped to encourage the spirit as well as the letter of the law and that people would get moving on it very quickly. It was seen as a good incentive to have this in the legislation. It would mean that within a very short period we would have something meaningful for people. In that spirit, it is a good amendment and it would give credibility to the legislation if one had this obligation on authorities. I realise it is yet another obligation on them but equally this is the sort of measure we should consider more and more when proposing legislation.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  I will not press this amendment but I ask the Minister, and the authority to do everything possible and positive in terms of encouraging a very early response from public authorities, to their duties under this legislation. Some kind of lead should be given and bodies should be proactive rather than waiting until somebody decides he has a case. That is the spirit of the amendment. I will not press it.

Amendment, by leave, withdrawn.[948]

Acting Chairman (Mr. Briscoe): Information on Ben Briscoe  Zoom on Ben Briscoe  Amendment No. 36 in the name of Deputy O'Sullivan arises out of committee proceedings.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  I move amendment No. 36:

In page 10, to delete lines 34 and 35.

This amendment relates mainly to insurance and it proposes to delete “actuarial or statistical data obtained from a source on which it is reasonable to rely,”. We had some debate on Committee Stage about this. I would like to ensure that insurance companies do not have a free hand in terms of deciding what data is reasonably sourced and what is not, on which they make decisions relating to how they treat their customers. This is a valid point because the insurance company may decide that something is reasonable in terms of data, but it may not be reliable at all. It has been pointed out before that some of this actuarial and statistical data is not accurate and that therefore it should not be in the legislation as something that insurance companies can use, in effect, to make it more difficult for their customers to obtain insurance at a reasonable cost.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  As I explained on Committee Stage, it is not the function of the Equal Status Bill to radically change the way in which the insurance industry operates. This amendment would fundamentally alter the way in which the financial services industry operates underwriting insurance, extending loans and so on. Insurance companies discriminate on various grounds based on actuarial or statistical data and they are allowed to do so in other jurisdictions. The Equal Status Bill will provide protection because the insurance companies and so on would have to justify the different treatments by demonstrating that they are based on reasonably reliable data whereas, at present, insurance companies do not have to provide such justification. To alleviate any worries that Deputy O'Sullivan might have, I advise her that the commissioner will decide what is reasonable in this context.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  If the Minister does not accept the amendment, will he clarify a matter relating to the insurance companies? He referred to reasonably reliable data – who will that be presented to, and how often will it be presented? In what way will that operate? I presume it means that there will be greater transparency in why insurance companies set certain rates, whether it is for women drivers or male drivers. That is a very welcome provision for everyone.

Acting Chairman:  The Minister has two minutes. Did Deputy O'Sullivan wish to make a contribution?

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  No.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  To reply to Deputy Fitzgerald's question, the position would be that a complaint would be made in the usual way, and then [949] it would be a matter for the director to decide whether the data being applied were reasonable. The complaint would be upheld if it was deemed that they were not reasonable. This will be determined in a very open, transparent and fair manner. I assure Deputies Fitzgerald and O'Sullivan that the provisions of this legislation will have a beneficial effect from the moment the Bill becomes operational and that this much is certain. That is as practical an example as one can give of how effective it will be.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  I will not press this amendment either, but in these areas there should be as much public knowledge and information given as possible relating to the scope of this legislation because many people would not realise that if they considered that the statistical or actuarial information used by an insurance was being used to discriminate against them, they could go to the equality authority on that matter. Maybe that is the point to be made but I will not press the amendment.

Amendment, by leave, withdrawn.

Acting Chairman:  Amendment No. 37 in the name of Deputy O'Sullivan arises out of the committee proceedings.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  I move amendment No. 37:

In page 10, line 38, before “and” to insert the following:

“but does not include information gathered from genetic testing,”.

I pointed out on Committee Stage that this amendment was proposed for the previous Equal Status Bill proposed by Deputy Jim McDaid, who would have more professional knowledge than many of us concerning genetic testing. In part of the Minister's reply, he stated that Irish insurance companies have yet to decide their stance on genetic testing. It is a matter of concern. Results of genetic tests should not play a part in terms of insurance companies making decisions with regard to their clients or their prospective clients. Will the Minister again consider the points I made on Committee Stage, which I have repeated on Report Stage.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I appreciate that the use of genetic data for insurance purposes is a sensitive issue. This is a new and developing field. While I recognise there are concerns about the issue of genetic testing, the Equal Status Bill is not the appropriate vehicle to resolve these issues. Since I am not the supervisory authority for the insurance industry, it is not my function to establish standards for the use of genetic data for insurance purposes. I understand the Irish Insurance Federation is currently reviewing the issue with a view to establishing best practice taking account of developments in other countries. [950] A code of practice is being finalised on the use of genetic tests in life assurance.

As far as the Equal Status Bill is concerned, material obtained from genetic testing falls to be treated with other data which insurance companies can use to justify different treatment. It has to be data on which it is reasonable to rely and the difference of treatment has to be reasonable, having regard to the data or other relevant factors. The Equal Status Bill, therefore, cuts down on the opportunity to discriminate. I would also point out that insurance contracts require the disclosure of all material facts for the application, whether the insurance company asks for it or not. An insurance company could hardly be prevented from taking into account a genetic test which indicated an increased risk. I cannot, therefore, accept this amendment.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  This is a new issue which is not covered by legislation. We will have to introduce legislation on it. I referred to the transparency of insurance companies – it is likely that someone will face increased charges, whether with a health insurer or insurance company because information on a genetic test they have taken has been made available. It would be hard to expect the information to be withheld from an insurance company – they will have access to it. From the citizens' point of view, public awareness is important. Information should be given by insurance companies so that people in this position know they are protected by this Bill if they feel data is being used in an inappropriate way. It is possible such information could be used inappropriately by an insurance company and the person involved could suffer discrimination as a result.

This is cutting edge technology and new facets are constantly emerging. There are implications in terms of contact with insurance companies and ensuring the provisions of this Bill are publicised so the public is aware it is protected on this issue which is not really covered by legislation.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  On Committee Stage the Minister said insurance contracts required the disclosure of all material information, whether or not the insurance company require it on the application form. Perhaps this issue should be debated fully in another forum. There are serious concerns about exactly what one must disclose to an insurance company and what is relevant. These issues cannot be appropriately addressed today but I put down these amendments to ensure public debate.

Amendment, by leave, withdrawn.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  I move amendment No. 38:

In page 10, line 41, before “differences” to insert “reasonable”.

This amendment proposes to ensure that religious bodies are not given a carte blanche[951] exemption from the provisions of this Bill. My amendment suggests the inclusion of “reasonable” which was in the original Bill and provided that exemptions on religious denominational grounds would be excluded from this part of the Bill. Those exemptions should be on reasonable grounds and should not be a blanket exclusion.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  For reasons I gave on Committee Stage, I cannot accept this amendment. It would allow the Director of Equality Investigations or the courts to decide whether something provided for a religious purpose is reasonable. This would be tantamount to State interference with the freedom of religious denominations which would be constitutionally suspect. The director could, of course, decide whether something is being provided for a religious purpose but once that has been established it cannot be a matter for the director to decide that the terms in which it is being provided are unreasonable.

Acting Chairman:  Does the Deputy wish to press the amendment?

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  No, because I can see my argument has not made a great impression on the Minister. However, I believe the inclusion of “reasonable” does not interfere with the freedom of religious denominations. There is nothing wrong with the State insisting that exemptions in that regard be reasonable.

Amendment, by leave, withdrawn.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  I move amendment No. 39:

In page 11, between lines 32 and 33, to insert the following:

“(3) Subsection (2)(d) is without prejudice to any requirement regarding community rating imposed on health insurers in the State.”.

This issue was debated in relation to several areas on Committee Stage. The Minister indicated there would be no interference with community rating imposed on health insurers. However, it would be useful to state this specifically in the legislation to ensure there is no doubt. It will not do any harm to include it and perhaps the Minister will explain why he feels it is still unnecessary.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I understand the Deputy's concern in ensuring the Bill is not detrimental to community rating. I do not consider, however, that such an amendment is necessary. Section 7 of the Health Insurance Act, 1994, provides that premiums payable under health insurance contracts cannot be varied by reference to the age, sex or sexual orientation or the suffering or prospective suffering of a person from a chronic disease, illness or other medical condition.

[952] The prohibition on age discrimination contained in section 7 of the Health Insurance Act, 1994, will not be affected by section 5(2)(e) of the Bill. Although the Bill exempts certain differences of treatment of insurance from being regarded as discrimination under that legislation, it does not sanction age discrimination in private health insurance and contravention of the Health Insurance Act, 1994. The Equal Status Bill does not confer any new rights on insurers and, therefore, I cannot accept the amendment.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  The amendment was suggested to us by the Irish Congress of Trade Unions – an august body which wants to protect peoples' rights. I do not think it is unreasonable but I will not press it on the basis that the Minister has assured me the matter is covered in other legislation.

Amendment, by leave, withdrawn.

Acting Chairman:  Amendment No. 40 is consequential on amendment No. 41 and amendment No. 42 is related to amendment No. 41. Amendments Nos. 40, 41 and 42 may be discussed together. Is that agreed? Agreed.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 40:

In page 11, line 34, to delete “or” where it secondly occurs.

Deputy Fitzgerald's amendment has a similar aim to mine, namely to give added protection against discrimination in this area. The Deputy raised this point on Committee Stage and I said I would consider it. I have done so and my proposed form of words has been settled by the parliamentary draftsman. I believe the Deputy will accept that my amendment fully meets the point at issue and I thank her for bringing it to my attention.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  I thank the Minister for putting down the amendment which gives more protection in the provision of accommodation.

Amendment agreed to.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 41:

In page 11, between lines 34 and 35, to insert the following:

“(b) terminating any tenancy or other interest in premises, or”.

Amendment agreed to.

Amendment No. 42 not moved.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 43:

In page 12, line 40, to delete “traveller” and substitute “Traveller”.

[953] Amendment agreed to.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  I move amendment No. 44:

In page 12, line 40, after “community” to insert “to the extent that is reasonably necessary”.

The meaning of the amendment is obvious, it gives leeway and asks for slightly more objective criteria to be built in.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  Since Committee Stage I have had an opportunity to consider this amendment in consultation with the Department of the Environment and Local Government. I am advised that the local authorities and approved voluntary housing organisations, as social housing landlords, require flexibility in allocating dwellings to ensure purpose built and designed and designated dwellings, for example, elderly persons dwellings, dwellings purpose built or modified to facilitate disabled occupants, accommodation for members of the travelling community, etc., continue to be used for their original purpose and to ensure an appropriate social mix in housing estates.

There are circumstances where flexibility is required, family size being one such circumstance, because statutory schemes of letting priorities afford additional priority to larger families on the basis of family status. In order to promote an appropriate social mix, local authorities and voluntary bodies have to ensure there is a spread of different family types in a particular estate and it would not be reasonable to allocate supported or purpose built elderly person's accommodation to families.

If this amendment was adopted, it could result in housing estates being tenanted without regard for the wider social consequences. Housing authorities have been subjected to criticism in the past that inflexible letting practices resulted in concentrations of disadvantaged families in particular estates. Providing for a social mix may not be considered necessary as part of the wording of Deputy Fitzgerald's amendment. It is very important, however, for the quality of life of tenants and in the context of other, wider social implications.

The local authorities are not without checks and balances to ensure they deal fairly with people. Administrative decisions made by the authorities in the allocation of housing are subject to the investigation by the Ombudsman. The Ombudsman's guide to standards of best practice provides that dealing impartially with people includes avoiding bias because of a person's colour, sex, marital status, ethnic origin, culture, language, religion, sexual orientation, attitude, reputation or because of who or what they know. It also provides that dealing impartially with people includes ensuring services provided in a scheme of priorities for the allocation of social housing are open and transparent.

[954] In those circumstances it is not considered appropriate to accept the amendment.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  I thank the Minister for the information he has given. It clarifies the position.

Amendment, by leave, withdrawn.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  I move amendment No. 45:

In page 12, between lines 40 and 41, to insert the following:

“(6) Section 13 of the Housing Act, 1988, is hereby amended by the substitution of the following subsection for subsection (1):

‘(1) This section applies to members of the “Traveller community” which is defined for these purposes as the community of people commonly so called who are 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 Minister accepted the definition of “Traveller community” given in amendment No. 45 in a debate on an earlier amendment.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  We accepted that the travelling community should be defined in the legislation, an argument put forward by Deputy Fitzgerald. We then went to the parliamentary draftsman who inserted a definition which she found acceptable.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  The issue was dealt with and we accepted the Minister's proposals.

Amendment, by leave, withdrawn.

Acting Chairman:  Amendment No. 46 arises from Committee proceedings. Amendment No. 47 is related and amendments Nos. 48 and 49 are alternatives to amendment No. 47. The amendments will be taken together by agreement.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 46:

In page 13, line 30, before “where” to insert “without prejudice to section 3 of the Refugee Act, 1996,”.

Deputy Fitzgerald tabled amendments on Committee Stage which aimed to align treatment of refugees with EU nationals as defined in section 6(3)(d) of the Equal Status Bill. I said I would look sympathetically at this on Report Stage. Persons who are granted refugee status here are entitled to the same rights to education, health, housing, etc., as Irish citizens. Section 3 of the Refugee Act, 1996, although not yet in force, states this. It is administrative practice. By virtue of my amendment, the exemptions for differences of treatment for EU nationals at section 7(3)(d) of the Equal Status Bill and section 12(7) of the Employment Equality Act are without prejudice to section (3) of the Refugee Act. I expect the [955] Refugee Act to be brought into effect in the coming months.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  Does the Minister accept that we specifically need to include that refugees will have protection under this Bill? The Minister is linking it to an Act which is not yet in force.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I have indicated on a number of occasions that I want to introduce the Refugee Act, 1996. I have advertised for a commissioner and it is also the intention to appoint an appeals commissioner. Until such time as they are appointed, it is not possible to implement the Refugee Act, 1996, in its entirety. Those portions of the Act dealing, inter alia, with the Dublin Convention, refoulement and so on have been introduced. The substantive provisions, however, have not yet been introduced in so far as they relate to the commissioner's functions.

Section 3 of the Refugee Act will set out that a refugee in relation to whom a declaration is in force will be entitled to the same rights and privileges as those conferred by law on persons generally who are not Irish citizens.

Deputy Fitzgerald tabled amendments on Committee Stage in relation to this legislation which sought to align the treatment of refugees with EU nationals in regard to the Equal Status Bill. I said that I would look at that and I intend to achieve it by inserting without prejudice section 3 of the Refugee Act, 1996, which will come into force in a matter of months.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  There could, however, be a position whereby the Equal Status Bill would be passed by the House but the Refugee Act would not be in place and the protection will not apply until the provisions in the Refugee Act are introduced. This illustrates the urgency of bringing the Refugee Act into place.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  It is my intention to introduce the Refugee Act quickly. I anticipate that the Refugee Act will be operational in its entirety before this legislation. However, I cannot guarantee that because litigation is ongoing but I am confident that I should be in a position to do that.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  I accept that the Minister has moved and I welcome that. I would like him to make it clear, although he cannot give a guarantee that this section of the Refugee Act will be in force by the time the Equal Status Bill becomes law, that refugees will not be treated differently or charged more by educational establishments or other institutions. We must be sure that will be in the Refugee Act when implemented and that such institutions will not be able to use this clause. Will the Minister assure us that refugees will not be charged higher fees?

My amendment seeks to delete lines 33 to 39. I am trying to safeguard the rights not just of refugees but all non-EU nationals who may be [956] charged higher fees simply because they are non-EU nationals. I would like the Minister to address that issue as it is discriminatory and unfair.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  People who achieve refugee status in this jurisdiction are not discriminated against either administratively or by legislation. That will be reinforced when the Refugee Act, 1996, is implemented, though that is not to say there is any prejudice against refugees now. To my knowledge, there is not any such prejudice. We are dealing with people who have achieved refugee status. There are no circumstances under which I could open the borders of either the State or educational or other institutions to any person who arrives in the State. It cannot happen. That is a Utopian aspiration. I know that may not find favour in some quarters but most pragmatists will accept that is the position. There is little I can do to explain it other than to say it is not something that could be countenanced because we could not afford it. We neither have the space nor the resources. People who acquire refugee status will receive the same rights, services and so on as citizens. To suggest that it is unfair that those who do not achieve such status and are non-nationals do not receive the same services as refugees or citizens is fanciful. I believe my view is shared by the vast majority of those in this jurisdiction. However, I wish to emphasise that those who achieve refugee status will have the same rights as everyone else.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  I do not understand why the Minister is driven on every occasion to repeat this speech on open door policy, suggesting that everyone is in favour of it when what we are trying to do is build in protections for those who receive refugee status and guarantee that they will not be discriminated against. The Minister will agree that there is probably as much an educational issue as a legislative one in this section. I thank him for the move he has made. It is important that information is given and that there is this protection. It is also important that the provisions apply to those who have acquired refugee status. As far as the issues we are discussing under this Bill are concerned, we want to send out a loud and clear message that those granted refugee status should not be treated any differently from Irish citizens.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  The reason I felt obliged to make that speech is that one of the amendments tabled would have the effect of providing that we would have free education for anyone in the world.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  I should not give the Minister an opportunity to go on again.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  That would be the effect if we delete the lines suggested from section 7(3)(d). I am not suggesting that is some grand plot or design. It may have been an oversight but [957] that would be the effect of it. I do not think the speech I made today was as good as on other days.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  It was more moderate today.

Amendment agreed to.

Amendment No. 47 not moved.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  I move amendment No. 48:

In page 13, between lines 33 and 34, to insert the following:

“(I)fees for admission or attendance by persons with refugee status and those without,”.

It is clear from what the Minister said that refugees will not be treated differently from Irish citizens in terms of access to services, including educational services. On that basis amendment No. 48 is not necessary and I withdraw it.

Amendment, by leave, withdrawn.

Amendment No. 49 not moved.

Acting Chairman:  Amendment No. 50 is in the names of Deputies O'Sullivan and Fitzgerald. As amendment No. 51 is an alternative both will be taken together, by agreement.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  I move amendment No. 50:

In page 14, to delete lines 14 to 18.

This brings us back to the question of educational establishments and students with disabilities. We discussed some of the points on an earlier amendment but this provision is more offensive. The subsection states:

(b) to the extent that compliance with any of its provisions in relation to a student with a disability would, by virtue of the disability, make impossible, or have a seriously detrimental effect on, the provision by an educational establishment of its services to other students.

This was not in the Equal Status Bill, 1997. It means that an educational establishment does not have to provide for a student with a disability if it considers it might have a seriously detrimental effect on the educational provision for other students. This would be open to abuse by such establishments. They could say they could not accommodate students in a wheelchair or those with hearing difficulties and so on because of the effect it would have on other students. I do not believe an educational establishment should have that power. I accept there is some justification for “impossible” but “seriously detrimental effect” could be widely abused. There are sufficient safeguards for educational establishments with regard to how open their doors are to students with disabilities. Every possible effort should be made to ensure such students have access to educational establishments.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  This amendment follows on [958] from that on education. It is clear that the interpretation means it is still a case of property before people's rights. I argued on Committee Stage that some objective criteria should be built into the Bill in terms of when a school should assess the level of impact on meeting the needs of a disabled person. The language used in the Bill is not tight enough. It would be better to include the phrase “objective criteria”. That would encourage schools which exclude someone because they feel their disability would have a major impact on the school to give more reasons for their decision. It is not acceptable that schools should be allowed to do this.

To go back to my earlier point, the Dáil should lay down standards for schools to provide for the needs of people with disabilities. This should be provided for to a stronger degree than is provided for in the Education Bill. This should also be covered by the equal status legislation. A lot of public money is going into private institutions, yet there is no onus on them to fully meet the needs of the disabled. Why should this requirement not be included in the equal status legislation? Perhaps the Minister would take a chance in terms of the Supreme Court and give a wider interpretation of the matter. I appreciate that one does not want to delay the passage of the Bill but it seems extraordinary that the Dáil cannot pass legislation which will provide that institutions and schools, including private schools, must accommodate those who are disabled. It should be made very clear that this must be done.

There is a lot of protection built into the legislation. The Minister said previously he did not think schools would do this lightly. Parents have experienced cases where schools have felt that because children had a particular disability, whether autism, a behavioural disorder or some type of hyperactivity, they could not cope with them in the school. This may be the case if extra resources are not in place. If stronger legislation was in place, there would be an onus on the schools to consider the resources they would need to incorporate people with disabilities. This would strengthen the legislation. However, I appreciate that a constitutional issue might arise, but I believe by any reasonable test this House should be able to lay down statutory standards which should apply in all circumstances in relation to disability. We should not legislate for this sort of exclusion. The school will have to show evidence to the director that there is a basis under section 7(4) for its decision not to admit students. However, it would be better if there was a positive atmosphere from the beginning and if there was a statutory obligation on schools to provide for disabled pupils whatever facilities are necessary without the limitation provided for in the legislation relating to cost and so on.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I explained in some detail on Committee Stage the reasons underlying the wording of section 7(4)(b). It provides that educational establishments are not obliged to admit students with a disability if so doing would make it impossible or would have a seriously detrimental effect on the provision of their services to other students. This exemption was included fol[959] lowing legal advice about the open-ended nature of the obligations under the 1997 Bill, which could negate other pupils' constitutional right to education. There is a balance to be struck in this regard. I stress that the wording of this subsection was formulated in consultation with the Department of Education and Science and involves a strict test.

I envisage that section 7(4)(b) will not be availed of lightly. The exclusion of a person by a school on foot of this provision must meet a very strict test, namely, that the person's disability must make impossible or have a seriously detrimental effect on the school's provision of its services to other students. What we have in mind is a child whose disability is such that his or her admission would seriously disrupt or negate the education of other pupils. It is not intended to cover cases where it would inconvenience the school to have a pupil with a disability nor are the perceptions or attitudes of other pupils or their parents relevant. The criteria are extremely strict and the exemption can be invoked only in limited circumstances. Where a school has availed of this provision, it will be open to the person to seek redress under the Equal Status Act by submitting the case to the Director of Equality Investigations. The school will have to provide satisfactory evidence to the director that there is a basis under section 7(4) for its decision not to admit the student. In other words, where an educational establishment seeks to avail of such an exemption, it will be a matter for that establishment, not the complainant, to show that the exemption applies. Since the school will have to persuade the Director of Equality Investigations that it meets the test in section 7(4)(b), I do not regard it as necessary to qualify this section by reference to “objective criteria”.

I wish to make it clear that I am not balancing the right of a person, to use Deputy Fitzgerald's words, against the rights of property. It is a question of trying to balance the rights of one individual with the rights of other individuals. The Deputy will accept that if the student concerned, when admitted to the school, negated the educational position of other students, it would be reasonable in those circumstances for the school to be in a position to refuse admission. It will be accepted that if the person's disability makes it impossible or would have a seriously detrimental effect on the school's provision of its services to other students arising out of the admission, it would be reasonable in such circumstances for the school to refuse to accommodate the child. I stress that the test is very strict. It will be a matter for the school to establish that the criteria are met and not, for example, a matter for the complainant to establish. I am satisfied, having discussed the matter at various levels, that the legislation is as tight as possible in this respect.

Earlier there was a vote on an amendment which, if passed would have been held to be unconstitutional for the simple reason that it was held to be unconstitutional previously. If I were to proceed with the legislation without taking into account the rights of all the other pupils in the [960] class concerned, the probability is that my seeking to ensure that a child is accommodated by the school, despite the fact that the child concerned would make it impossible for the other children to get a proper education or would have a seriously detrimental effect on their education, would result in the Supreme Court ultimately holding that the legislation is unconstitutional. I sympathise with the Deputies in terms of these difficult cases. I also deeply sympathise with parents who find themselves in that situation. However, I have tried to tighten the legislation as much as possible to ensure that a child is not excluded unless the reasons are cogent, while at the same time trying to ensure other pupils in the class do not have their education seriously undermined or negated.

Acting Chairman (Mr. Kirk): Information on Seamus Kirk  Zoom on Seamus Kirk  There has been some modification to Standing Orders in relation to Report Stage debates in recent times. Members who move an amendment can effectively speak three times, initially when the amendment is moved, a short contribution of two minutes and then to conclude the debate. We tend on Report Stage to drift a bit from those modifications. I, therefore, remind the House of the new arrangements.

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  It is important to spell out clearly the intention in the legislation because this could be read in a variety of ways. I take the Minister's point about the rights of other pupils to education and their not being unduly disrupted because of the needs of one child. However, what does the Minister suggest a school should do if it is not accessible to a child in a wheelchair? If the lack of ramps is used as grounds to exclude a child and various changes would be necessary to enable the child to attend, does the Minister consider that, under the Bill as it stands, the school would be able to make a case for excluding the child?

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  I accept the Minister is constrained by the Constitution, but the parents of children with disabilities always have to fight for their rights and take cases. People believed, following the court cases which parents won and the subsequent Education Act, that the fighting was over and that their rights would be provided for in legislation. However, every time we discuss legislation which is supposed to give rights to people with disabilities, we are constrained by the Constitution to the extent that people have to fight every step of the way. The more I consider the Bill, the more I see a need to amend the Constitution.

To what extent does the Education Act affect the Bill, which will be the primary legislation in terms of the rights of people with disabilities to an appropriate education? As I said on Committee Stage, when a child applies to attend a school and is turned down, he or she must then take a case to the equality director. If another school turns down that child, the same process will apply. Such children have to go around in circles to find schools [961] to accommodate their needs. They could have lost a year's education by the time their cases have been heard and they find a school which decides the rights of other pupils will not be significantly interfered with because a person with a disability is receiving an education.

Is there any way such children can be protected from the need to fight every time for their basic right to an education? It appears this will happen despite the best will in the world and the Minister's point that it is up to the educational establishment to prove the rights of other students would not be safeguarded. It appears, unlike other children, a child with a disability cannot automatically go to a school and receive an education, which is his or her right. What are the Minister's views on this aspect?

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  Many of the questions raised impinge on the Education Act which comes within the remit of the Minister for Education and Science. It must be made clear that a child with a serious disability might, for example, be reasonably accommodated in a particular class of a particular school, but not in another class. He or she could be accommodated in one school but not in another, depending on the type of services provided. The Education Act deals with the fundamental right of a child to be educated.

I accept, in respect of a child with a grave disability, it can be difficult to ensure he or she finds an appropriate place. However, the thrust of the Bill is to make the path much easier for people with disabilities, irrespective of the gravity of their disabilities. Although I accept they are interlinked, we must not confuse the issue of the right to an education with the concept of reasonable accommodation. It would be accepted that a State run school should have a ramp for wheelchairs. However, if it was a privately run school, it would also be reasonable to expect it to have a ramp provided it had the funding to build one. This relates to the funding provided by the Department of Education and Science for the provision of facilities for people with disabilities.

I explained that the Supreme Court in its wisdom decided the reasonable accommodation provision under the Employment Equality Bill was unconstitutional and that, in those circumstances, while it did not consider this matter specifically, the same provision in the Equal Status Bill was, as a logical consequence, also unconstitutional. It must be clear that there is then a difficulty about this matter. It is not the intention of this legislation to enshrine in our law a position where educational establishments will be able, for frivolous reasons, to refuse an education to a child with a disability. That is not the case. The grounds are strictly set out and they are stringent and tight.

Depending on the educational establishment one attends, there is a probability that what might be seriously detrimental or negate the educational opportunities of other children in one school might not apply in another school or even in different classes in the same school. It depends [962] on the type of services available within the class or classes or the school or schools. This is apparent.

The right to an education is fundamental and I am trying to ensure, in so far as it is possible, that pupils with disabilities will not be discriminated against. This must be clear. However, there are constitutional constraints in relation to how far I can go. I stress that the objective of this legislation is to try to ensure, in so far as we reasonably can, that people with disabilities will obtain an education and that provision will be made for them.

Ms O'Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  I appreciate the constraints on the Minister and that he is trying to safeguard the right to an education of people with disabilities in so far as he can do so. However, in practice, the person with a disability will have to find an appropriate place of education. In fighting for his or her constitutional right, such a person may lose a year's education. The inclusion of the section will make it more difficult for students with disabilities to access their rights.

The right of schools to provide an appropriate education to different types of students is already covered in legislation on education. There are various examples in practice. The inclusion of this section creates an unnecessary obstacle to students with disabilities and I intend to press the amendment.

Acting Chairman:  I am not supposed to allow the Minister to reply. The amendment has been discussed at length but I will allow the Minister to make a brief response if he wishes to conclude the debate on the issue.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I thank the Acting Chairman. Deputy O'Sullivan is being unduly pessimistic. The Education Act provides that a child is entitled to an education and that educational establishments should make provision for children with disabilities subject to the availability of finance. This measure greatly strengthens the position of disabled children. It does so because it obliges the educational establishment concerned to accept the child unless to do so would make it impossible or seriously detrimental for other children to receive an adequate education. That provision does not exist in Irish law at present. What we are doing is removing the possibility of people being discriminated against on frivolous grounds by inserting strict criteria into the legislation.

If there is a very severely handicapped child whose parents wish him or her to obtain an education, it must be clear to everybody that the probability is that it would not be possible, for example, in many instances for the local national school to give that child an adequate education without seriously disrupting or making it impossible for the other children to get an education. It might well be the case that there would be other educational establishments which might cater more specifically for that child and the child [963] would obviously be accepted. If, on the other hand, the handicap was mild the probability is that children would not be adversely affected to the extent that their education opportunities would be negated or that there would be serious detrimental consequences for their education. In those circumstances the child would be admitted.

I am trying to balance the rights of all children [964] in as equal a fashion as possible. It would be wrong to suggest this legislation seeks to hinder a disabled child from getting an education. Far from it. We are removing fundamental obstacles so far as we can.

Question put: “That the words proposed to be deleted stand.”

Ahern, Bertie.
Ahern, Dermot.
Ahern, Michael.
Ahern, Noel.
Andrews, David.
Ardagh, Seán.
Blaney, Harry.
Brady, Johnny.
Brady, Martin.
Brennan, Séamus.
Briscoe, Ben.
Browne, John (Wexford).
Byrne, Hugh.
Callely, Ivor.
Carey, Pat.
Collins, Michael.
Cooper-Flynn, Beverley.
Cowen, Brian.
Cullen, Martin.
Daly, Brendan.
Dempsey, Noel.
Dennehy, John.
Doherty, Seán.
Ellis, John.
Fahey, Frank.
Fleming, Seán.
Flood, Chris.
Fox, Mildred.
Gildea, Thomas.
Hanafin, Mary.
Harney, Mary.
Haughey, Seán.
Healy-Rae, Jackie.
Jacob, Joe.
Keaveney, Cecilia.
Kelleher, Billy.
Kenneally, Brendan.
Killeen, Tony.
Kirk, Séamus.
Kitt, Michael.
Kitt, Tom.
Lenihan, Conor.
McCreevy, Charlie.
McDaid, James.
McGennis, Marian.
McGuinness, John.
Martin, Micheál.
Molloy, Robert.
Moloney, John.
Moynihan, Donal.
Moynihan, Michael.
Ó Cuív, Éamon.
O'Dea, Willie.
O'Donoghue, John.
O'Hanlon, Rory.
O'Keeffe, Batt.
O'Keeffe, Ned.
O'Rourke, Mary.
Power, Seán.
Roche, Dick.
Ryan, Eoin.
Smith, Brendan.
Smith, Michael.
Treacy, Noel.
Wade, Eddie.
Wallace, Dan.
Wallace, Mary.
Walsh, Joe.
Woods, Michael.
Wright, G. V.

Barrett, Seán.
Bell, Michael.
Belton, Louis.
Boylan, Andrew.
Bradford, Paul.
Broughan, Thomas.
Bruton, John.
Bruton, Richard.
Burke, Ulick.
Carey, Donal.
Clune, Deirdre.
Connaughton, Paul.
Crawford, Seymour.
Creed, Michael.
Currie, Austin.
D'Arcy, Michael.
Deasy, Austin.
Deenihan, Jimmy.
Dukes, Alan.
Durkan, Bernard.
Enright, Thomas.
Finucane, Michael.
Fitzgerald, Frances.
Gilmore, Éamon.
Gormley, John.
Gregory, Tony.
Hayes, Brian.
Higgins, Jim.
Higgins, Joe.
Higgins, Michael.
Hogan, Philip.
Howlin, Brendan.
McCormack, Pádraic.
McGahon, Brendan.
McGinley, Dinny.
McGrath, Paul.
McManus, Liz.
Mitchell, Gay.
Mitchell, Olivia.
Naughten, Denis.
Neville, Dan.
Noonan, Michael.
O'Keeffe, Jim.
O'Shea, Brian. [965]

O'Sullivan, Jan.
Owen, Nora.
Penrose, William.
Quinn, Ruairí.
Rabbitte, Pat.
Reynolds, Gerard.
Ring, Michael.
Ryan, Seán.
[966] Sargent, Trevor.
Sheehan, Patrick.
Shortall, Róisín.
Stagg, Emmet.
Stanton, David.
Timmins, Billy.
Upton, Mary.
Yates, Ivan.

Question declared carried.

Amendment declared lost.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.


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