The Select Committee met at 10 a.m.

Members Present (Deputies):

*In the absence of Deputies M. Barnes, S. Ardagh and B. Howlin respectively.

Deputy Eoin Ryan in the Chair.

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

Chairman: I welcome the Minister of State, Deputy Fahey. The committee had reached amendment No. 64. Amendment No. 67 is an alternative so amendments Nos. 64 and 67 can be discussed together. Is that agreed? Agreed.

SECTION 8.

Ms O'Sullivan: I move amendment No. 64:

In page 14, subsection (2)(b), between lines 18 and 19, to insert the following:

"(i) refusing to permit certain categories of members to vote at general meetings and stand for office in the management committee;".

Amendment No. 67 relates to clubs refusing certain categories of membership the right to stand for office. It refers to the Registration of Clubs Act, 1904. The two amendments suggest that that Act would have been contravened if a club discriminated in this way. These amendments again relate to the submission from the Irish Ladies Golfing Union although they refer not only to golf clubs. The Second Commission on the Status of Women refers to this Act and suggests that legislation to outlaw discrimination should be linked to the Registration of Clubs Act to ensure that clubs comply with anti-discrimination measures and do not use that Act in a way that would discriminate against their members. The commission said in a report to the Government in January 1993 that any statutory advantage deriving from club status should be removed from discriminating clubs.

The amendments are a response to recommendations from the Second Commission on the Status of Women and to representations on behalf of a group of women golfers who have seen discrimination in their sport and in clubs involved in that sport. We should ensure that such discrimination does not exist and that the Registration of Clubs Act cannot be used to permit discrimination.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. Fahey): The Equal Status Bill contains provisions designed to ensure that registered clubs with an intoxicating liquor licence which are found to be discriminating will not be allowed to hold such a licence. This will be a matter for the District Court to decide. Sections 8, 9 and 10 are taken from the 1997 Bill and they were drafted on the advice of the Attorney General in light of the constitutional and practical difficulties of bringing clubs generally within the scope of the Equal Status Bill. I am, therefore, not disposed to employ the Bill as a vehicle for making substantial changes to the Registration of Clubs Act and, for that reason, I cannot accept the amendments.

The implications of giving voting rights to every member in a registered club are unclear. While I claim no experience of the details of membership of registered clubs, there is a considerable variety of types of membership. It might well be that there are some members to whom it would be inappropriate to give voting rights. The issues relating to gender equality which the Deputy has mentioned in golf club membership appear unresolved, but the Equality Authority has the role of working towards the elimination of prohibited conduct and the promotion of equality. This Bill will confer on the authority the function, if it confirms it appropriate to do so, of preparing codes of practice in particular areas. It will be open to individuals to represent to the authority that this area might be appropriate for preparation of a code of practice. We all agree with the Deputy's point that there should be no discrimination in golf clubs, or any other club.

Ms O'Sullivan: Will the Minister reconsider this matter because the Irish Ladies Golfing Union has left us in no doubt that a minority of clubs will do whatever they can to ensure that women are not given equal status? This involves a minority of clubs, which also tend to be older clubs. The union has received legal advice and it is strongly of the opinion that this legislation still does not close all the loopholes with regard to the ability of golf clubs to discriminate against women. We should do whatever we can as legislators to ensure that those loopholes are closed. I would appreciate if the Minister would reconsider the wording and incorporate it in some way in the Bill to ensure that these loopholes are not perpetuated in golfing circles.

Mr. Fahey: I would accept the Deputy's point in principle were it not for the fact that there is a much stronger regulatory measure in the Registration of Clubs Act. This means the Department will have power over such clubs in terms of registration and their ability to serve intoxicating liquor. In addition, the authority will operate codes of practice. The Deputy's point is adequately covered in a much stronger way under the Registration of Clubs Act and where there is discrimination the intention is that the clubs involved will be dealt with under that Act.

Ms O'Sullivan: I am not sure that the Registration of Clubs Act covers the point regarding the inability of certain categories of members to vote at general meetings or stand for office. It covers the intoxicating liquor area, but the issue of voting is still outstanding. The principle of only allowing certain categories of members to vote should not be upheld because it is unfair in terms of the democratic running of an organisation.

Mr. Fahey: If we start to interfere in the legislation in the internal operations and workings of clubs, we will enter a minefield. While I accept the principle of what the Deputy is trying to achieve, I do not agree it is the most appropriate way to deal with the matter. The Registration of Clubs Act may have to be reconsidered but the sanctions available under it are much stronger than those proposed in the amendment. While I appreciate the Deputy's point, the feeling in the Department is that the amendment would not have the desired impact.

Ms Fitzgerald: Although there is a right to revoke a licence from a club which discriminates, if the amendment is not included, will a club which will not allow women to vote in certain cases, such as those outlined by Deputy O'Sullivan, be covered by the Bill? For example, if a golf club in Dublin does not allow women to vote because of their associate status, can its licence be refused? If the amendment is not included, is it the case that it would not be refused?

Mr. Fahey: It depends on the circumstances and it is a matter for the District Court to decide. If discriminatory factors were involved, it would be covered and the District Court would make a decision in that regard.

Ms Fitzgerald: Would having a situation where only certain categories of members could vote constitute discriminatory grounds, which would enable a case to be taken in the District Court in the first place?

Mr. Fahey: Yes, it may. Section 8(2) covers such a case. It states that for the purpose of the section, a club shall be considered to be a discriminating club if it has any rule, policy or practice which discriminates against a member or an applicant for membership.

Ms Fitzgerald: That is useful information and it is good to clarify the point because it may mean that the point of Deputy O'Sullivan's amendment is potentially covered. However, as the Minister said, it would have to be tested in the District Court. Women golfers would prefer if it was specifically stated in the Bill, but it remains to be tested under section 8(2)(a)(i).

Ms M. McGennis: I received an inquiry from a member of the Irish Ladies Golfing Union about opening up full membership to women. Her complaint is that women who have had limited membership of clubs for years are being asked to pay full fees regardless of the amount they paid previously. I presume there is no way that aspect can be addressed in this Bill, but will the Minister point me in the direction of legislation which would give them leverage?

Chairman: That point was dealt with yesterday.

Ms M. McGennis: I apologise, Chairman.

Chairman: We will not go back to it. Is the amendment being pressed?

Ms O'Sullivan: I wish to press it because I want this point covered in the legislation rather than have it tested in the courts.

Amendment put and declared lost.

Ms Fitzgerald: I move amendment No. 65:

In page 14, subsection (2)(b), between lines 21 and 22, to insert the following:

"(iii) refusing or failing to do all that is reasonable to prevent sexual harassment from occurring in the club;".

The aim of the amendment is to strengthen the provisions in section 8 and to ensure that the code of practice that prevails includes an effort by the club to deal with sexual harassment. It should have a code of practice in relation to sexual harassment and if it is an issue, it should be seen to do something about it. That is the purpose of the amendment.

Ms O'Sullivan: I support the amendment.

Mr. Fahey: Section 8(2)(b) sets out certain matters listed in subparagraphs (i) and (iv) which, if done by the club or a person involved in its management on any one or other of the discriminatory grounds, would constitute evidence that the club is a discriminatory club and thus liable to the loss of its registration certificate. The Deputy's amendment proposes an additional ground to those listed, namely, that of refusing or failing to do all that is reasonable to prevent sexual harassment from occurring in the club. The Deputy has only focused on sexual harassment and not on other harassment within the meaning of section 11. If sexual harassment is envisaged as likely to occur, why would other harassment also not arise and in turn be liable to be deemed to be evidence for the purpose of determining that a club is discriminatory?

The items listed in subparagraphs (i) and (iv) refer to certain acts in each case where, when the club has to determine the matter, it will not be unduly difficult to assert whether the evidence goes against the club. For example, the person will or will not be admitted to membership, or different terms for membership will be put in place etc. Issues around sexual harassment could be considered more problematic in the context of a club, particularly if such harassment could occur not only between persons in authority and prospective members of the club but also between ordinary club members. It would be a draconian approach if an act of sexual harassment in a club bar resulted in the forfeiture of the club's drinks licence.

The purpose of the District Court hearing is specific, namely, to determine if the club has a rule, practice or policy which discriminates against a member or an applicant for membership, or that a person involved in the club's management discriminates against a member or an applicant for membership in relation to the club's affairs. With a view to retaining the focus of a District Court hearing in these matters, I would not be willing to enlarge the section in the manner advocated by the Deputy. Therefore, I cannot accept the amendment.

Ms Fitzgerald: I accept the Minister's point that sexual harassment could occur between members of a club as opposed to between someone in authority and a club member. In a sense, this amendment recalls our discussion about the Bill's positive and proactive approach to the promotion of good practice. It is in that context that I recommend the amendment's inclusion. Will the Minister clarify where this is dealt with in the Bill if a person or group of people experience ongoing sexual harassment on club premises? Does he envisage that such harassment would be covered by the Bill? How would an individual initiate action in that regard?

Mr. Fahey: We are not attempting to cover sexual harassment in the private sphere any more than it would be covered in any other situation.

Ms Fitzgerald: What about the public sphere?

Mr. Fahey: People have normal rights to deal with issues of persistent sexual harassment. It is not necessary to include that specific requirement in this part of the legislation.

Ms Fitzgerald: I think it represents a gap in the legislation because the possibility for sexual harassment exists in a club setting. That should form one of the criteria under which a club would be assessed. I realise it is a difficult area but there is an ever-increasing awareness and definition of sexual harassment and I do not think it is unreasonable to seek to have it included in the Bill in order that it would be regarded as a discriminatory criteria which unduly affects people.

Ms O'Sullivan: Deputy Fitzgerald and I have tabled amendment No. 74 to section 11 in regard to sexual and other types of harassment, in which we are seeking to include clubs. I know we are not dealing with the amendment at the moment but it relates to the same issue. The 1997 Bill includes harassment within clubs and partnerships under the sexual harassment section. I do not mind which section it is included in but it should be covered somewhere in the legislation.

Ms Fitzgerald: Perhaps the Minister would clarify why that provision was dropped from the 1997 Bill? The sexual harassment section in this Bill is much weaker than in the 1997 Bill.

Mr. Fahey: Sexual harassment is covered in this Bill in regard to the provision of the service. The inclusion of the Deputy's amendment would open a can of worms in the sense that it would make matters extremely difficult for the District Court. We wanted to keep the definition of "sexual harassment" tight and relevant, but the amendment relates to something which the Bill is not intended to cover.

Ms Fitzgerald: A recent study from the Employment Equality Agency on this issue highlighted the fact that sexual harassment is a serious issue for huge numbers of workers. It is likely that it is also an issue in many other establishments, such as clubs, which could be covered by this legislation. We should try to convey a strongly worded message in this type of legislation in relation to sexual harassment. Obviously, the prospect of losing a licence is a major one for a club. This section of the Bill is weakened by the fact that funds are not now being denied to such clubs, as was the case under the 1997 legislation. I am curious as to why the section has been watered down.

This amendment is an important one which affects certain categories of people more than others. Sexual harassment is a very real problem. The figures from the Employment Equality Agency reveal that it is an issue in workplaces and I do not have any doubt but that it is also an issue in regard to the type of services this Bill intends to address. It is a shame such a provision is not included at a time when our awareness of this problem and our ability to define it has dramatically increased and when European codes of practice exist in regard to it.

Mr. Fahey: It is possible that the provision could be provided for under the terms of the Bill. For example, where there are instances of institutionalised sexual harassment, the District Court can deal with them. The issue of funding is a separate matter.

Ms Fitzgerald: I know, we will deal with that later.

Mr. Fahey: The Deputy asked why the section has been watered down. Having obtained legal advice, it was felt that the proposals contained in the Bill represented the most effective way to deal with the issue. Where sexual harassment of a private nature occurs, it can be dealt with through other channels and it is not necessary to include it in this Bill.

Ms Fitzgerald: I disagree.

Ms O'Sullivan: I do not understand why people must resort to the courts where clubs are concerned whereas under the other categories under section 11, such as educational establishments, services, purchase of goods, premises, accommodation and so on, they have access to the Equality Authority in addition to the courts.

Mr. Fahey: The District Court deals with the registration of clubs and that is why the issue is dealt with in that manner. If we were to deal with it in any other way, constitutional issues could arise.

Ms O'Sullivan: It sends out a signal that clubs are not being covered by the provisions in regard to sexual harassment and that weakens the legislation.

Mr. Fahey: If we were to include them, we would be discriminating against clubs which are obliged to register and those which are not.

Ms Fitzgerald: I suppose it is a question of striking a balance between the private and constitutional rights of clubs versus an issue of the common good.

Mr. Fahey: If we were to do what the Deputy is advocating, we would, in effect, be including an extra provision for registered clubs which would not apply to non-registered clubs and an issue of proportionality would arise.

Ms O'Sullivan: Surely clubs must register in order that they can be regulated?

Mr. Fahey: The issue of proportionality would arise if we were to do what the Deputy suggests. Institutions and clubs which are not registered would not be covered.

Ms Fitzgerald: Deputy O'Sullivan's point is a relevant one. If a club or institution wishes to be eligible for registration, surely the State can impose some restrictions and criteria in that regard without infringing constitutionality. The argument we are making is that this is one of the criteria which should be built into that.

Mr. Fahey: It can be built in and can be tied to the membership rather than to issues such as sexual harassment. While I accept the principle of the Deputies' remarks, the intent of their amendment is already provided for in legislation and, therefore, it is not necessary to duplicate it. By trying to solve a problem, one can sometimes make it more difficult to solve.

Ms Fitzgerald: I do not believe that including this provision in the legislation would make it more difficult to solve this problem, rather it would lead to greater awareness and improved codes of practice. It would also create a sense of awareness of the issue which is lacking at present. I can see the Minister is not prepared to accept the amendment.

Amendment put and declared lost.

Amendment No. 66 not moved.

Ms O'Sullivan: I move amendment No. 67:

In page 14, between lines 27 and 28, to insert the following subsection:

"(3) Where a club refuses to permit certain categories of members to vote at general meetings and stand for office in the management committee, the requirements of section 4(a) and (d) of the Registration of Clubs Act, 1904, shall be deemed to have been contravened.".

Amendment put and declared lost.

Ms O'Sullivan: I move amendment No. 68:

In page 14, subsection (5), line 36, after "club" to insert "at its registered or head office".

This amendment seeks to ensure there is a definite mechanism for serving an application on a club at its registered or head office. It is fairly self-explanatory. We should specify where the application should be served.

Mr. Fahey: The Registration of Clubs Act, 1904, employs the term "club premises". I understand that the actual certificate of registration also uses this term. I have not so far ascertained whether the term "head office" is used in relation to the court application process under this Act. I consider, however, given the type of club at which the provisions of the Equal Status Bill are targeted, an applicant will not have difficulty in serving the application specified in subsection (5) on the club at its club premises. Moreover, once a case of this type comes before the courts, the alleged discriminating club may endeavour to convince the District Court judge of a technical irregularity, such as an incorrect service by the applicant of the copy application at the wrong address. I hesitate to allow any scope for possibility of such procedural irregularity. The section as it stands is clear and, accordingly, I do not propose to accept the Deputy's amendment.

Ms O'Sullivan: I do not feel very strongly about this point, so I will not press the amendment.

Amendment, by leave, withdrawn.

Chairman: Amendment No. 72 is an alternative to amendment No. 69 and both may be taken together by agreement. Is that agreed? Agreed.

Ms Fitzgerald: I move amendment No. 69:

In page 15, between lines 27 and 28, to insert the following subsection:

"(11) A discriminating club shall not be entitled to grants from public funds or use of public facilities.".

The 1999 Bill does not contain a section which was contained in the 1997 Bill to the effect that while an order made under section 10 determining that a club is a discriminating club remains in effect, (a) no grant or loan of public funds shall be made to or in respect of the club and (b) the club shall not be provided with the use of publicly owned facilities that are intended for recreation.

The core of this discussion is what is done when a club has been found to discriminate under the Act. This Bill suggests that it should not get a drinks licence. The provision contained in the 1997 Bill stated that such a club should not get a grant or loan of public funds or receive support from State facilities paid for by the taxpayer while the discriminatory order remained in effect. It is a question of the degree of sanction to be implemented against discrimination. It is perfectly reasonable to say that no grant or loan of public funds should be given to a club which has been found to be discriminating. Why was that section deleted? I presume it was done on constitutional grounds. I am very surprised it was deleted and I think the amendment is very reasonable.

Ms O'Sullivan: I fully support what Deputy Fitzgerald has said. We will greatly weaken the powers of sanction against clubs which discriminate if we remove the power to deny public funding. It is necessary to have that very strong sanction to use on clubs which are discriminating against any sector of the population covered by this legislation. If we do not include it, we will permit public money to be spent on clubs which are directly violating the legislation. I feel very strongly that we should restore this element to the legislation. It is not enough to deprive such clubs of an intoxicating liquor licence. The purpose of clubs is not to provide places for people to drink but to provide people with the opportunity to participate in certain shared activities. It is a sidelong approach to deal with the issue only in terms of the provision of a licence to serve intoxicating liquor. Such clubs should not be publicly funded if they are in violation of this legislation, which is concerned with outlawing discrimination.

Mr. Fahey: I see the point of the amendment. However, on legal advice, the sole sanction against such clubs is now the removal of the drinks licence or the certificate of registration. Our advice is that it would be legitimate to refuse the grant of a drinks licence, which is a privilege enjoyed by a club conditional on the club not discriminating. However, the imposition of other penalties which would not apply to a discriminating non-registered club raised the question of proportionality. We, therefore, dropped the other penalties. The loss of the drinks licence alone would be a very effective sanction. Most public reaction to the registered clubs provisions of the 1997 Bill focused on the loss of the drinks licence.

The other point, from a practical point of view, is that clubs which could be described as being in this category are unlikely to look for or receive money from the State. We are focusing on a small number of golf clubs. We feel the principle is adequately provided for in the existing legislation and there is no need to include such a provision in this Bill.

Ms Fitzgerald: Will the Minister of State clarify the position in regard to his legal advice? He has rejected many of our amendments on the basis of his legal advice in regard to registered and non-registered clubs. What is the point being made by the legal adviser in regard to this? It seems to focus not so much on the need for good sanctions against discrimination but on the fact that non-registered clubs would end up in a "more favoured" position than registered clubs.

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