The Select Committee met at 11 a.m.

Members Present (Deputies):

*In the absence of Deputies T. Ahearn, S. Ardagh and M. Barnes respectively.

+ In the absence of Deputies F. Fitzgerald, B. Howlin, M. McGennis and J. Perry, respectively, for part of meeting.

Deputy Ryan in the Chair.

Chairman: I welcome the Minister and his officials.

Equal Status Bill, 1999: Committee Stage.

Section 1 agreed.

SECTION 2.

Chairman: Amendments Nos. 1, 2 and 3 are related and may be taken together.

Ms O'Sullivan: I move amendment No. 1:

In page 6, subsection (1), line 13, to delete "resident".

I wish to raise a general point about the Minister's amendments which were circulated yesterday morning. This allowed us very little time to deal with substantial changes to section 21. I submitted amendments late last night to section 21 which I understand will be circulated today. Will the amendments be considered.

Chairman: Yes, they will.

Ms O'Sullivan: Amendments Nos. 1 and 2 relate to the definition of the words "family status". I am concerned about that the word "resident" which is included in paragraph (b) as well as in the subsection I propose to delete in amendment No. 2. It was brought to our attention by the Irish Council for Civil Liberties that the definition which includes "resident" in relation to family status is rather narrow. They are concerned that there may be situations where a care giver might not be resident but should be included in the definition of "family status". They also pointed out that while in gay and lesbian relationships the care giver might not necessarily be resident, they would be giving the necessary care. Therefore, they are anxious that the definition of "family status" should not include the obligation to reside with the person being cared for.

Ms Fitzgerald: I welcome the fact that the Bill is in committee. However, despite our economic progress, there is a lot of discrimination which must be addressed. I hope we can make the Bill as strong as possible. I welcome the Minister's amendments but I would have liked more time to consider them.

This issue hinges on the definition of "carers" being 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 serve to discriminate against certain people who are carers but who are not catered for in the definition in the Bill. Obviously the aim of the amendments is to broaden out carers who would be protected under the scope of the Bill.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): The definition of "family status" was altered from that in the Equal Status Bill, 1997, specifically to align it closely with that of the Employment Equality Act, 1988. Apart from the inclusion of "pregnancy", for reasons arising from EU case law history to general discrimination under the Employment Equality Act, the wording is identical to that in the Employment Equality Act. The proposed changes would create an unwarranted divergence between the definition in this Bill and that of the Employment Equality Act. If the primary carer did not have to be resident, as proposed in Deputy O'Sullivan's amendment, more than one person could be deemed to be the primary carer of the same person. In that context, it is not apparent to me how this amendment applies only to people who are gay or lesbian. The situation is that a person could be a primary carer, have a different sexual orientation and not be resident. Irrespective of the sexual orientation of the individual, the fact that the person would not be resident would lead to a situation whereby a number of people could be deemed to be the primary carer. Clearly this would not be desirable.

Regarding Deputy Fitzgerald's amendment, I appreciate the motivation underlying it but it seems that this would actually confuse the definition. In those circumstances, I cannot accept the amendments.

Ms O'Sullivan: I was not saying that it would only apply to those in the gay and lesbian community. The representations made to us suggest that it would be of particular concern to people in that community. I understand the Minister's point that more than one person should not be defined as the primary carer. Could there be some other wording so that that one person would not necessarily have to be resident? It is the residency aspect that concerns me.

Ms Fitzgerald: There would be many people in a situation of primary caring and it would be easy enough to work out that they were the primary carer even though they were not resident with the person they were looking after. I would like the Bill to cover these people.

Mr. O'Donoghue: The difficulty is that I would end up with a number of primary carers in at least some instances. This would cause a divergence between the equal status legislation and the employment equality legislation. I must stress that I do not want to deviate from the Employment Equality Act which was considered by the Supreme Court. Members will recall that the Equal Status Bill was also before the Supreme Court but only the Employment Equality Act, in all its respects and complexities, was considered by the Supreme Court. There were consequential matters which were clear to us as being unconstitutional in the Equal Status Bill following the judgment of the Supreme Court in regard to all the contents of the Employment Equality Bill. All the contents of the Equal Status Bill were not considered. We know that this definition did not meet with any adverse comment from the Supreme Court. I am anxious to ensure that legislation such as this, dealing with equality in the provision of services, should, in so far as is possible, run parallel to the provisions in the Employment Equality Act which deal with equality in employment.

Ms Fitzgerald: It may be that there is more scope there than we are allowing for. Given that this Bill was not examined in detail by the Supreme Court while the other Bill was, to some degree we are operating in the dark in relation to the constitutionality or otherwise of the Bill. It would be preferable to make the Bill as inclusive as possible, given the problems that exist and the background against which it is being introduced. I appreciate the point the Minister is making but I do not think it should be beyond the realms of possibility to have a definition of a primary carer that would satisfy the requirements we are putting forward.

Mr. O'Donoghue: It is a bit like the rule primus inter pares. The reality is that we cannot have several primaries, unlike elections in the United States, we can have only one primary carer here. To narrow the definition and give a degree of certitude, I have said it will be the resident primary carer. I am anxious that the legislation follows the regulations in the Employment Equality Act. We will have to agree to disagree.

Ms O'Sullivan: Will the Minister consider this before Report Stage to see if there is a form of words which would accommodate his view and ours, that there would not be more than one primary carer, but that person would not necessarily have to be resident?

Mr. O'Donoghue: I will look at everything, but I am doubtful about it.

Ms Fitzgerald: The Minister had an opportunity to discuss this with the Carers Association, an expert group in the area which could come up a definition of primary care.

Mr. O'Donoghue: I assure the Deputy that I met groups in connection with this legislation in the past two years and officials in my Department, over a more protracted period of time, have consulted interested groups about the legislation. There was a high level of consultation before the final drafting of legislation. The legislation also went to the Supreme Court along with Employment Equality Act, although it was not considered in detail there.

The phrase "resident primary carer" closely follows the wording in the Employment Equality Act which did not find unfavourable comment in the Supreme Court. That indicates to me that the court will not be unimpressed by the language.

Amendment, by leave, withdrawn.

Amendments Nos. 2 and 3 not moved.

Chairman: Amendments Nos. 11, 14 and 91 are related to amendment No. 4, amendments Nos. 12 and 13 are cognate to amendment No. 11 and amendment No. 28 is an alternative to amendment No. 14. Amendments Nos. 4, 11 to 14, inclusive, 28 and 91 will be taken together by agreement.

Ms O'Sullivan: I move amendment No. 4:

In page 6, subsection (1), line 30, after "it" to insert "or in relation to persons against whom prohibited conduct is or has been directed".

This would restore a provision that existed in the 1997 Bill which was not proceeded with because of the Supreme Court interpretation. That provision included persons in organisations while the Minister's Bill includes organisations only in so far as the obligations of the Bill go. I want to ensure that the benefits of the Bill apply to organisations as well as its obligations. If an organisation is being discriminated against, I want to ensure the benefits of the Bill apply to the full organisation not just to the individual. I accept that is included in terms of the obligations but I am concerned that it is not included in terms of the benefits. That was an aspect of the original Bill and there is no reason it should be watered down.

Ms Fitzgerald: In cases of discrimination it can be difficult for the individual to take a case. The solution to this was contained in the 1997 Bill. The amendments would ensure that an organisation would have as much protection under the Bill as an individual.

Mr. O'Donoghue: I understand why Deputies wish to make these amendments to extend the prohibition on discrimination to organisations and groups as well as to individuals. Under the 1997 Bill, it was intended that an organisation which was discriminated against because of the nature of its membership, for example an organisation representing racial minorities or the travelling community, could bring a claim based on this. When the 1997 Bill was referred to the Supreme Court, opposing counsel cited the drafting of section 3(1) of the 1997 Bill as meaningless, a criticism which was upheld in our subsequent legal advice. Since the discriminatory grounds are that one is a man and the other is a woman, it does not make sense to apply these grounds to organisations. Not only did the inclusion of organisations present difficulties in drafting, it is arguable that such a provision as contained in the 1997 Bill might be as protective of an all male or racially exclusive organisation as it would be of an organisation representing the travelling community or racial minorities.

For these two 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 1999 Bill in the clause setting out the definition of discrimination. Under this Bill, however, it will still be possible for an individual who encounters discrimination, for example, as a member of an organisation for ethnic minorities, to bring a claim of discrimination on an individual basis. The issue of representation of individuals by organisations in cases before the director is an entirely separate matter which I will deal with when considering a later amendment.

Ms O'Sullivan: If an organisation if being discriminated against, how can it use the provisions of this Bill to address that discrimination?

Mr. O'Donoghue: The point raised in the court was that the definition was meaningless. It reminds me of a discussion I had with Senator Norris in the Seanad about the issue of marital status. Irrespective of one's sexual orientation, one is either a man or a woman. By logical extension, one is an individual and, therefore, while a person may be a member of an organisation, he or she remains a man, woman or individual. In those circumstances, if the organisation is being discriminated against, since the organisation is comprised of men or women, any man or woman in the organisation can go to court on the grounds that he or she is being discriminated against when the organisation is being discriminated against. It is logical. In those circumstances, it was held that the definition in the previous legislation was meaningless.

Ms Fitzgerald: There is a difference between and individual being discriminated against and an organisation feeling that there is discrimination against it as a group per se. One would expect legislation of this sort to allow a group to take a case if it felt it was being discriminated against. I would be concerned if the net effect of amending the Bill would give protection to groups which were discriminatory but the other provisions of the Bill should ensure that would not happen.

It can be difficult for an individual who is being discriminated against to take a case because of the resultant pressure. Often individuals need the support of organisations. I do not say the Bill will stop individuals getting this support but a provision which would allow a group or organisation to take a case would strengthen the Bill. It would allow for cases arising on an initiative other than an individual one. If the proposed provision were in the Bill it would strengthen groups and organisations. A statutory provision which gave them the opportunity to take up an issue of discrimination would give them much more hope in dealing with it.

Mr. O'Donoghue: I said earlier that the Supreme Court had considered this legislation. It was, in fact, the Employment Equality Bill which was considered. The issue of organisations was cited by opposing counsel, as I said earlier. The conclusion drawn, and which the Government's legal advice upheld, was that an organisation was a meaningless phrase. A person who is a member of such an organisation has the right, if the organisation is being discriminated against, to bring an action in his or her own right because the individual is a member of the organisation which is being discriminated against. Section 3(2) sets out the discriminatory grounds. One of these is the gender ground which arises if one person involved is male and the other female. The other grounds are set out seriatim. There is no disadvantage accruing to any member of an organisation by leaving the definition stand and I have outlined the reason for that. If I were to put in a provision relating to organisations at this point, my advice is that this would present extreme drafting difficulties, would be meaningless and might be as protective of an all-male or racially exclusive organisations as of an organisation representing travellers or another minority. I have a difficulty with regard to the proposition being put forward.

It was necessary to redraft the legislation to meet the new position and we dropped the term "organisaton". There was a time when my officials and I would have argued the case being made by the Deputies but experience and hard learning has taught us differently. That is why there has been an about-turn and I admit that is the position. I empathise with what the Deputies propose but experience and advice indicate that it would not be the best way to proceed now.

Ms O'Sullivan: Amendment No. 91, proposes that where a person makes a successful claim on behalf of an organisation any compensation should be paid to the organisation. If the amendment is not accepted and the definitions are not changed how will the legislation work in practice? If, for example, a hotel will not allow a gay organisation to hold a meeting in the hotel a case would have to be taken by an individual. It might happen that this individual would be paid compensation even though the offence had been committed against the organisation. I accept the Minister's reasoning that one is either a man or a woman but in many cases a group of men or women are discriminated against and not an individual. In the case of services, it is often a group of people rather than an individual who are discriminated against; in the case of employment it is more usually an individual. I can envisage many situations where a group of people might be discriminated against under one of the nine grounds referred to in the Bill. It is not right that only an individual within that group can be compensated.

Mr. O'Donoghue: In section 3 of the Bill discrimination is taken to occur where on any of the grounds specified in section 3(2) which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated. The discriminatory grounds are set out and the very position put by Deputy O'Sullivan arises. One of those discriminatory grounds is that the person is of a different sexual orientation - this is known as the sexual orientation ground. In the case of a gay organisation which is prevented from holding a meeting in a hotel, any member of the group may decide to bring an action and he or she may decide to settle the case. The fact that the individual settles his or her case does not preclude another individual in the group from bringing another case. The fact that one person brings a case and settles it or succeeds or fails does not prevent any other member of the group from taking a case. It may well be that another member of the group may follow the precedent of the first member but that is a matter for him or herself. Any person is at liberty to take an action if he or she wishes. If he or she does not wish to do so he or she need not.

Ms Fitzgerald: Does the Minister not accept that to grant this right to a group rather than to an individual would strengthen the rights of the individual within the group? The argument regarding male and female is neither here nor there. We are concerned here with groups and organisations as we will be concerned with clubs at a later point in the legislation. Giving rights to an organisation surely strengthens anti-discrimination legislation. It is sometimes very difficult for individuals to take cases and it would strengthen organisations if they were able to take cases. I accept the point that an individual within an organisation may take a case but it is often groups and organisations who are discriminated against.

Ms O'Sullivan: It would also save the time of whoever must make the decision not to have to deal with several individual cases.

Mr. O'Donoghue: When the Bill was being considered the view of opposing counsel was that section 3 as drafted was meaningless because of the inclusion of the word "organisation". Our counsel upheld the view as expressed by the opposing senior counsel. An organisation need not be a legal person. We must accept that a group of persons need not constitute a legal person. If a person is a member of a group which has been discriminated against all the individuals within that group may take an action. The court can hear all the actions together. When an individual brings a case of this nature the court will follow the decision in the other cases for the simple reason that precedent is an intrinsic part of our legal system. I do not see any danger to organisations from the legislation. I am fully satisfied that each member of the group will be in a position to institute proceedings. If all the group take an action each of them will be encouraged by the others' fortitude.

Ms O'Sullivan: It is my understanding that the legal advice relates to the Equal Status Bill. There is a difference between employment and services in this matter. Usually in employment one is dealing with individuals whereas in services one is often dealing with groups.

Mr. O'Donoghue: Agreed.

Ms O'Sullivan: I hope this point will be addressed by the Minister.

Amendment put and declared lost.

Chairman: We now proceed to amendment No. 5. Amendment No. 6 is an alternative, amendment No. 45 is related and amendment No. 44 is related to amendment No. 45. Amendments Nos. 5, 6, 44 and 45 may be discussed together.

Ms Fitzgerald: I move amendment No. 5:

In page 7, subsection (1), line 1, before "or" to insert ", statutory services".

What services are covered by the Bill? Section 5 restricts the definition of "service" to business or trade. There is a fear that Government services will not be covered. Many of the groups we are concerned with, including people with disabilities, members of ethnic minorities and asylum seekers, have many dealings with the State. The primary purpose of the amendments is to ensure statutory services will be covered by the Bill.

Ms O'Sullivan: My amendment is similar to Deputy Fitzgerald's. The various bodies which have made representations to us, particularly those which made oral presentations recently, are strongly of the view that there is a need to specify that public bodies come within the scope of the Bill. The National Consultative Committee on Racism and Interculturalism cited the Stephen Lawrence inquiry in Britain as an example in recommending the inclusion of the police and the Customs service. Other examples were given by the Irish Council for Civil Liberties and other organisations. Organisations which represent those who are likely to suffer from discrimination fear that public bodies will be able to argue that they do not come within the scope of the Bill. It is important, therefore, to specify that they do.

Mr. O'Donoghue: I am aware that concerns have been voiced about the application of the Equal Status Bill to the State and that section 5(2)(a) in particular has led some to believe that the State is excluded. Last week I had a meeting with representatives of Pavee Point on this issue. There is no doubt that the equal status legislation will apply to the State. We are advised that following the 1993 Supreme Court judgment in Howard v. the Commissioners of Public Works it is neither necessary nor desirable to state in legislation that the State is bound thereby. In Ireland the doctrine of Crown prerogative, whereby the State is not bound by any statute which does not include it expressly or by implication, did not survive the enactment of the Constitution of Ireland in 1937. The uncertainty which had surrounded the issue was finally laid to rest in the landmark Supreme Court judgment in Howard v. the Commissioners for Public Works, 1993 - ILRM, page 665 - in which it was held that the State was bound by the planning Acts and was obliged to apply for planning permission before building an interpretative centre. Accordingly, it is unnecessary to state explicitly in legislation that the State is bound thereby. It is undesirable to do so in the same way as it is undesirable to purport to implement Council regulations by way of domestic law.

"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 private 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. It is clear therefore that the Equal Status Bill applies to services provided by the State. As advised, it is neither necessary nor advisable to say so.

Section 5(2)(a) has led some to question whether the Bill excludes State provided services. This paragraph was intended to ensure actions of an informal neighbourly character, such as giving neighbouring children a lift to school, were not covered by the Bill. The phrase "business or trade" was intended to include the business of Government and it was never designed to exclude services provided by the State from the ambit of the equal status legislation. I am satisfied that the definition of "service" in section 2 and in particular the phrase "which is generally available to the public or a section of the public" adequately defines the scope of the services covered by the Bill and that the further amplification provided for in this paragraph is unnecessary and can be deleted. I hope this helps to reassure Deputies that the provision of services by the State is covered by the legislation without the necessity for amendments.

Ms Fitzgerald: Section 5(2)(a) refers to, "the disposal of goods, or the provision of a service, otherwise than in the course of a business or trade". The Minister said that the phrase "business or trade" includes the business of Government but that is not clear from the Bill.

Mr. O'Donoghue: That paragraph is being deleted.

Ms Fitzgerald: Is that amendment being discussed?

Mr. O'Donoghue: We are discussing four amendments, amendments Nos. 5, 6, 44 and 45. To eliminate the confusion, section 5(2)(a) was intended to ensure actions such as giving a neighbour's children a lift to school, for example, would not be covered. The phrase "business or trade" was intended to include the business of Government. In other words, it was never the intention-----

Ms Fitzgerald: To narrow it down.

Mr. O'Donoghue: Exactly. I am happy that the definition of "service" in section 2, in particular the phrase "which is generally available to the public or a section of the public", adequately defines the scope of the legislation. There is no need to further amplify it in section 5 (2) (a). Deputy Fitzgerald's point is that it is contradictory. I accept that, and that is why I am agreeing to delete it and leave it as it stands.

Ms Fitzgerald: I would still make the point that in relation to the definition of service which is generally available to the public or a section of the public, when one looks at subparagraphs (a), (b), (c) and (d), nowhere does it say "services provided by the State" or "statutory services". It could be argued that the phrase "generally available to the public" covers it. However, the words "statutory services", as I suggest in my amendment, would ensure a clarity that is not in the Bill as presented.

Mr. O'Donoghue: There are services which are provided by the State which may not necessarily be statutory. The definition here is quite broad in the sense that the State is involved in services which are available to the public in general terms or to at least a section of the public. The definition is, therefore, adequate. To eliminate confusion I said I would delete section 5 (2) (a). This meets the demand. The position as outlined in section 2 is more general and more broad than Deputy Fitzgerald's suggested change.

Ms Fitzgerald: I am suggesting it as an addition. I am not suggesting anything should be deleted. Inserting "statutory services" does not change what is already in. It just strengthens and clarifies it.

Mr. O'Donoghue: To be fair to Deputy Fitzgerald, I accept it does not, but I am strongly advised by the Parliamentary Draftsman's office that what I have here is broad enough in scope to cover Government services of every kind which are available to the public in a general way or to a specific section thereof.

Ms Fitzgerald: Many organisations who made submissions felt concerned because inevitably, it is often in respect of Government services that there will be questioning and concern about whether they have equal access to them and about possible discriminatory practice. It is important that this should be spelled out in the Bill. I accept the Minister has been advised that it is not needed, but the question is arguable. Putting in "statutory services" makes it very clear. One cannot say there is a case precedent. On the other hand, we want to make it absolutely clear in the Bill. Reading the section it still looks like private services as opposed to Government or statutory services. Why not put it in when it really clarifies it and gives reassurance that it includes statutory services. We put in banking, insurance, grants, loans, credit, entertainment, recreation, cultural activities, transport or travel, or a service or facility provided by a club. Why not put in statutory services?

Ms O'Sullivan: Let me go back to the Stephen Lawrence inquiry in Britain. There they also thought the existing legislation covered the police and other state bodies. However, civil liberties organisations in Britain subsequently recommended that legislation should be tighter in terms of defining that state services were included in relation to this kind of legislation. Could we learn from what has been said about the British situation and be absolutely certain? I accept that the Minister has been advised that the definition is adequate to cover State services, but a situation might arise where that might be in doubt. This concern is the result of a genuine fear that the Bill is not tight enough in that regard.

Ms Fitzgerald: I want to reiterate that point. The submissions we have received are asking what lessons have been learned from the Stephen Lawrence case. Clearly what they are saying is that institutional racism was the problem. For that reason the Home Office decided to introduce a Bill to amend the Race Relations Act and extend its application unequivocally to all areas of Government and the Executive. The same issue arises in this Bill. We have to be clear in the wording of the Bill that it does apply to any services that are supplied by the State. I take the Minister's point about taking out business and trade. However, it is not clear enough. Relying on precedents quoted by the Minister is not enough. It should be stated clearly that if the discrimination is in a service supplied by the State a case can be taken.

Mr. O'Donoghue: I am aware that UK case law restricted the application of anti-discrimination legislation to public services which have a parallel in the marketplace. I am strongly advised that a similar limitation would simply not apply in this jurisdiction. The United Kingdom judgments were delivered against an entirely different legal and constitutional background than currently obtains here. Furthermore, the UK legislation itself did not define a service but only offered examples, whereas the equal status legislation now before the House very clearly defines a service as a service or facility of any nature. For all those reasons I do not believe the Lawrence case could occur here. I am completely satisfied that State services are covered by the terms of the legislation as drafted and as amended on the lines I have already put forward. Nonetheless, I am aware of the concerns of various organisations whose representatives I have met. As they have made clear to Deputies Fitzgerald and O'Sullivan, they were of the view that the legislation was not explicit enough. This is a matter which we did take up with the Attorney General's office. The Attorney General was of the view that the proposed amendment was not only unnecessary but undesirable.

Nonetheless, I take it on board that this legislation is obviously for the general public. It is important that they understand explicitly what is in the legislation. In those circumstances, I will undertake to go back to the Attorney General's office and seek further clarification in the matter to see if we can be more explicit along the lines suggested by Deputies Fitzgerald and O'Sullivan or along different lines. I take on board the points being made. I am advised that the suggested changes are neither necessary nor desirable. However, people are entitled to feel comforted by the legislation as it applies to them. In those circumstances, I will see what I can do to ensure that they are comfortable with it in the context of the arguments put forward by Deputies Fitzgerald and O'Sullivan.

Ms Fitzgerald: I would have requested a vote on this, but given the Minister's willingness to re-examine it and to try to ensure that there is more clarity in the legislation, I will not push it to a vote at this stage. I hope the Minister will be able to find a wording that makes it absolutely clear that this legislation covers services provided by the State.

Ms O'Sullivan: I reiterate what Deputy Fitzgerald has said. I thank the Minister for taking the points on board and hope there will be wording available.

Amendment, by leave, withdrawn.

Amendment No. 6 not moved.

Chairman: We come to amendment No. 7 in the name of the Minister. Amendment No. 8 is cognate and amendment No. 9 is related. Amendments Nos. 7, 8 and 9 will be taken together, by agreement.

Mr. O'Donoghue: I move amendment No. 7:

In page 7, subsection (1), lines 1 and 2, to delete "generally available to the public" and substitute "available to the public generally".

These amendments are intended to make textual improvements to the definition of service and to clarify its scope. Amendments Nos. 7 and 8 are of a drafting nature while amendment No. 9 serves two purposes. First, it removes the reference to a service provided to a person under a contract of service. Since a contract of service is coterminous with employment, the exclusion from the equal status legislation of matters covered by the Employment Equality Act automatically excludes services provided under a contract of service. The reference to a contract of service is, therefore, redundant. It has caused confusion among some interests, so I propose to delete it. Second, it ensures that occupational pension rights are not treated as a service for the purposes of the Equal Status Bill. It should be noted that only occupational pension rights as defined in section 2 of the Employment Equality Act are excluded from this amendment. Pension or annuities other than those flowing from an occupational pension scheme are covered by the Equal Status Bill.

Amendment agreed to.

Mr. O'Donoghue: I move amendment No. 8:

In page 7, subsection (1), lines 12 and 13, to delete "generally available to the public" and substitute "available to the public generally".

Amendment agreed to.

Mr. O'Donoghue: I move amendment No. 9:

In page 7, subsection (1), to delete lines 16 to 18 and substitute "but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;".

Amendment agreed to.

Question proposed: "That section 2, as amended, stand part of the Bill."

Ms O'Sullivan: There was a question of the definition of disability and there are no amendments on that matter. Some concern has been expressed that the definition of disability is different in this Bill to that in the Employment Equality Act.

Mr. O'Donoghue: The definition of disability is identical except for the fact that we deal in this legislation with past or future situations. It is set out in section 3(1) - "which exists at present or previously existed but no longer exists or may exist in the future" and the Bill then goes on to refer to it being imputed to the person concerned and so on.

Ms O'Sullivan: But that is not in the Employment Equality Act.

Mr. O'Donoghue: Here we are talking about discrimination generally while there we are speaking about disability. We put the past and future situations into the general discrimination in the Equal Status Bill. In the Employment Equality Act we use it in terms of disability only.

Ms O'Sullivan: I am still a little confused but perhaps we can return to this on Report Stage. I have not put down any amendments on this, but I wish to signal that Pavee Point gave us a definition of "traveller" subsequent to my submission of amendments. Their definition comes from civil rights legislation in the North of Ireland. Perhaps the Minister could look at this to see if we should respond to that proposal. I note the Minister said he met Pavee Point recently. I do not know if that body gave him that definition but we should look at that before Report Stage, as I have not put down an amendment on that matter either.

Mr. O'Donoghue: This is important for every Member of the committee. We defined discrimination in the equal status legislation now before the House and then we say that if those grounds existed before or exist now or in the future, that is a ground for or cause of action. In the Employment Equality Bill the question of the past and future is confined to disability, whereas here it covers all the grounds of discrimination.

Ms O'Sullivan: I will take the Minister's word for it.

Question put and agreed to.

Section 3.

Ms O'Sullivan: I move amendment No. 10:

In page 7, subsection (1)(a), line 33, to delete "but no longer exists" and substitute "whether before or after the commencement of this section".

This amendment is a response to the Irish Ladies' Golfing Union. I met them some time ago and they were concerned that there would be a practice in golf clubs and perhaps other clubs also where certain rules would apply to women members. The legislation might preclude the fact that they had been members, though associate members, for many years, enabling the club to say they were coming in as members for the first time. In some golf clubs women could be associate members, though not full members, and they are afraid that the clubs might now interpret the legislation as saying that as they are now becoming full members instead of associate members, their past associate membership might not be taken into account in terms of treatment. They might be charged exorbitant joining fees as new members. They want to ensure that this Bill does not allow golf clubs to discriminate against them in that way.

Mr. O'Donoghue: I do not play golf and one of the main reasons is-----

Chairman: The Minister would be very popular with women golfers.

Mr. O'Donoghue: --- that on one of the few occasions I tried to play with either men or women I spent the day searching for the ball. Be that as it may, I understand what Deputy O'Sullivan is trying to get at here; I was unsure of from the text of the amendment. The equal status legislation will not and cannot have retrospective effect, that is to say, discrimination that occurred before the commencement of the legislation will not be prohibited. However, the effect of section 3(1)(a) is that discrimination which occurs after the commencement of the Act but which is based on a characteristic which existed in the past, regardless of when, would be covered by the Bill. This does not give the Bill retrospective effect but it allows past characteristics, such as former nationality, marital or family status, to be covered.

I have received representations which suggest that an amendment along the lines proposed by Deputy O'Sullivan would allow the Bill to have retrospective effect. If that is the intention it does not achieve it. In any event I do not intend to depart from legislative norms by giving this Bill retrospective effect. As the Bill already covers discrimination based on past characteristics, the reference to the commencement is not appropriate and it is unnecessary. I cannot accept the amendment. In plain terms, if there is a characteristic which is still in existence and which was in existence before the passage of this legislation and which is discriminatory, obviously the discrimination on the basis of that characteristic will be grounds for action.

Ms O'Sullivan: Is the Minister saying that regarding the Irish Ladies' Golfing Union's concern, the clubs will have to take into account the fact that ladies may have been associate members?

Mr. O'Donoghue: The ground must be discriminatory as well, which is what is confusing me. Is associate membership discriminatory? The discriminatory grounds are set out in page 8, section 3. I confess I do not see anything about associate membership in subsection (2) - all I see there are the actual grounds themselves. I am afraid that the answer is "not necessarily". I cannot give a guarantee.

Ms O'Sullivan: I accept that it is difficult to put this into legislative wording, but the Minister understands the issue I am addressing. He probably cannot give me any guarantee that he can look for wording on this, as there may not be wording to address this, but it should be possible to address the issue. These women are genuinely concerned that they will be asked to pay £3,000 or £4,000 per year to join clubs of which they have been members for years. They could not be full members in the past.

Mr. O'Donoghue: I understand the concerns they have, but my difficulty is that I cannot be very definitive. It depends on the circumstances of the case. Whenever one hears a Minister for Justice saying "not necessarily", as I have learnt in the last two years, that means the courts making a decision I cannot.

Ms O'Sullivan: I will not press the amendment at this stage but before Report Stage I will try to find a wording to address the issue.

Mr. O'Donoghue: If Deputy O'Sullivan finds something that covers the issue without making the legislation retrospective, I would be delighted to entertain it.

Ms O'Sullivan: Perhaps the Minister might try too, in a spirit of co-operation.

Mr. O'Donoghue: Yes, we will try as well.

Amendment, by leave, withdrawn.

Sitting suspended at 12.11 p.m. and resumed at 12.30 p.m.

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