Mr. Cassidy: I move:

That the proposal that Dáil Éireann approves the terms of the Agreement between the Government of Ireland and the Government of the Republic of Hungary on co-operation in combating illicit drug trafficking, money laundering, organised crime, trafficking in persons, terrorism and other serious crime, which was signed in Budapest on 3rd November, 1999, copies of which were laid before Dáil Éireann on 15th December, 1999, be referred to the Joint Committee on Justice, Equality, Defence and Women's Rights, in accordance with paragraph (1)(a)(iv) of the Orders of Reference of that Committee, which shall, not later than 30 May, 2000, send a message to the Dáil in the manner prescribed in Standing Order 67, and Standing Order 69(2) shall accordingly apply.

 

Question put and agreed to.

Section 1 agreed to.

SECTION 2.

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

In page 6, subsection (1), line 8, after "3(1)" to insert "or 4(1)".

 

I welcome the Minister of State, Deputy Mary Wallace, to the House and look forward to a constructive debate on Committee Stage when I hope we will have an opportunity to explore the Bill to its full extent. While it took a little over 12 months to go through the Dáil, it may not take as long in this House. I hope there will be adequate time in which to explore the important issues in a Bill which has taken up a considerable amount of legislative time in the 1990s, having been introduced by us when in Government in the mid-1990s.

This is a technical amendment. It remedies an omission identified in the definitions sections in relation to the definition of "discriminate". Surely this is one of the elements at the heart of the legislation. The definition excludes discrimination against those with a disability. That is a serious omission and I hope the Minister will take it on board.

Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace): This is a drafting amendment which is in the interests of clarity and we propose to accept it.

Amendment agreed to.

Mr. Connor: I move amendment No. 2:

In page 6, subsection (1), line 19, before "carer" to insert "or other".

 

I also welcome the Minister of State to the House and hope that in the time available for Committee Stage, today and tomorrow, and Report Stage we will give the Bill a thorough examination. This amendment seeks before "carer" to insert "or other". The final part of paragraph (b) reads:

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

 

There is no reason we should confine the carer to such a category. It can easily discriminate against a certain category of person with a disability. So far as the payment of the carer's allowance is concerned we now have a non-residency clause attached to it, which was a matter of much controversy for many years. One does not have to be resident in the home to be the primary carer of an old-age pensioner or a person with a disability. That is the reason I ask the Minister to accept the amendment. The final part of paragraph (b) would then read:

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary or other carer resides with the person with the disability;

Miss M. Wallace: Apart from the inclusion of pregnancy, which for reasons arising under EU case law is treated as gender discrimination in the Employment Equality Act, the definition of "family status" in this Bill is identical to that in the Employment Equality Act. The proposed change would create an unjustified divergence between the definition in this Bill and in the Employment Equality Act. If the primary carer did not have to be resident then more than one person could be deemed to be the primary carer of the same person.

It is difficult even to think how discrimination could arise in this area but it is important to keep the definitions similar in the Employment Equality Act and in this Bill. It is difficult to think of one practical example where discrimination could occur on the equal status side. We are retaining it because it is in employment legislation.

Mr. Connor: It is a pity there is no better reason than that. The definition of "carer" should be broadened out to include "other carer", meaning some other person who may be outside the house. Why should it have to be a family member? We have the narrow definition of family member as laid down in the EU interpretation and in the court interpretation also which the Minister has mentioned. Why can we not approach this in the spirit in which we approached the carer's allowance when we broadened its scope? A primary carer living outside the home can now qualify for carer's allowance. Furthermore, I do not see why only one person can be a primary carer.

Miss M. Wallace: We are not talking about the disability issue but about family status. The question is whether the person is in the family or not.

Mr. Connor: I accept that. Of course, it is handy to do that because by so doing one confines the category of carer. I wish to include another category of carer.

Miss M. Wallace: What Senator Connor is saying is fine in principle. However, the subsection does not define "carer" in the context of the Bill. It defines "family status". We cannot forget that the subsection deals with family status.

Amendment put and declared lost.

Acting Chairman (Dr. Henry): Amendments Nos. 3 and 4 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Mr. Connor: I move amendment No. 3:

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

 

During the debate on Second Stage, other Members and I made the point that it is unclear whether services provided by the State come within the scope of the Bill. This amendment merely places the reference to statutory provisions within the definition of "service" so there is no uncertainty. The Minister dealt at great length with the points made by myself and by Labour and Independent Senators on Second Stage but we were not satisfied with the Minister's response and we are not satisfied that a satisfactory amendment has been made to the Bill on Committee Stage in the Dáil. This amendment reiterates the points made on Second Stage.

Ms O'Meara: Amendment No. 4 is very similar to Senator Connor's amendment. It seeks to have public services specifically mentioned in the Bill. This is not a new idea and since the Bill is nearing the end of its progress through the Houses, it is necessary to underline the importance of this issue. My colleagues and I are not the only ones to be concerned. I note that a similar amendment was tabled to the 1997 Bill by the Minister of State's party colleagues, Deputy McDaid and Deputy Flood, and supported by the then Deputy Keogh. It is clear that this issue has been explored and promoted across party lines by experienced Members of this and the other House. I ask the Minister to take cognisance of that fact.

This amendment has been regarded as necessary by a considerable body of political opinion in both Houses and clearly meets the concerns of many people who want to see public services specifically mentioned in the legislation. I hope the Minister will accept the view of Labour Party Senators and the wider view of others on this matter. If it was considered necessary to make this amendment to the 1997 Bill, why is it not considered necessary now?

Miss M. Wallace: Whether one is in Government or Opposition it is important to seek expert advice from the relevant departmental officials. I have consulted my officials and the Attorney General on this matter. There is no doubt that equal status legislation applies to the State. "Service" is defined in section 2 as a service or facility of any nature which is available to the public generally or a section of the public. This applies to public services as well as those provided by the private sector. The application of the Bill 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 Bill applies to services provided by the State.

In its judgment in 1993 in Howard v. The Commissioners of Public Works the Supreme Court stated that it was not necessary to state in legislation that the State was bound thereby. I am advised that, by implication, the Bill applies to the State and that it is unnecessary to include an express provision in this regard. Neither of the proposed amendments would appear to achieve express application to the State because the words "statutory services" and "statutory provision" would narrow substantially what is understood by the State.

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 in 1937. The uncertainty which surrounded this issue was finally laid to rest in the landmark Supreme Court judgment, Howard v. The Commissioners of Public Works, 1993, ILRM 665, in which it was held that the State was bound by the planning Acts and was accordingly obliged to apply for planning permission before building an interpretative centre.

Mr. Connor: I was spokesperson on the Office of Public Works in the other House when amending legislation had to be introduced, but it would do the Bill no harm to state expressly in every section where it needs to be stated that it applies to services provided by the State. It would remove all uncertainty and put the matter beyond yea or nay. In the case of the interpretative centre in Mullaghmore the State was of the view that it did not have to observe the law so far as planning permission was concerned. The Supreme Court decided otherwise - that the State is amenable to the law in the same way as every citizen. In keeping with the spirit of the Supreme Court's decision the Minister of State should ensure it is expressly stated that the Bill applies to the State. This would do the Bill no harm and would put the matter beyond yea or nay.

Ms O'Meara: That is the question I was going to ask. What harm would it do to include the words proposed?

Miss M. Wallace: I want to make three points. The Attorney General has advised against including an express reference to the State in the Bill. That is the legal advice.

Mr. Connor: The Attorney General is rarely right in these matters.

Ms O'Meara: Why did he advise against it?

Mr. Connor: I hope he does not take it personally.

Miss M. Wallace: Senator O'Meara is seeking to have the words "statutory provision" inserted and Senator O'Connor "statutory services". The advice is that these words do not cover the State.

Mr. Connor: We are talking about services provided by the State.

Acting Chairman: The Senator should allow the Minister of State to continue without interruption.

Mr. Connor: I do not want the Minister of State to misunderstand the terms of my amendment.

Acting Chairman: The Senator is engaging in dialogue from a seated position.

Mr. Connor: I apologise, I am being disorderly.

Acting Chairman: The Minister of State should be allowed to continue with interruption. There is no rush; we are here for the afternoon.

Miss M. Wallace: Let me clarify the matter. If, for example, we were to say that the inclusion of the words "statutory provisions" or "statutory services" would not make a difference we would be going backwards because many State services would not be included. The words used would be debatable. There is no doubt that the equal status legislation applies to the State.

Amendment put and declared lost.

Amendment No. 4 not moved.

Acting Chairman: Amendment No. 5 is in the name of Senator O'Meara. Amendments Nos. 41 and 54 are cognate and all may be discussed together by agreement. Is that agreed? Agreed.

Ms O'Meara: I move amendment No. 5:

In page 7, paragraph (c), line 12, to delete "1995" and substitute "1999".

 

This is a technical amendment which corrects an error in the existing citation which fails to cover the Intoxicating Liquor Act, 1999.

In light of the Minister's acceptance of amendment No. 1, I hope she will accept this amendment.

Mr. J. Cregan: This amendment should be accepted by the Minister.

Ms Wallace: I accept amendment No. 5. Although amendment No. 41 is similar to amendments Nos. 5 and 54, I cannot accept it as it will be overtaken by amendment No. 40. In the interests of a structured debate, I will not consider amendment No. 40 at this point but will discuss it with the more substantial changes in respect of registered clubs to which it is linked.

Amendment agreed to.

Section 2, as amended, agreed to.

Ms O'Meara: I move amendment No. 6:

In page 7, subsection 1(a), line 38, to delete "but no longer exists" and substitute "whether before or after the commencement of this section".

 

There are a number of amendments along this line. This is the first of what I would term the "golfing" amendments. We are aware that a number of issues have arisen in relation to women's membership and use of golf clubs, particularly with regard to our attempts, as legislators, to ensure that women are treated as equal members.

There was a request by the Irish Ladies' Golf Union that the court should have regard to past discrimination which continues to exist. A number of issues have emerged regarding the application of some sections of this legislation which may cause difficulties for people who have been discriminated against in the past. We must ensure that in trying to solve a particular difficulty we do not create others.

This amendment and others attempt to meet the concerns raised by the Irish Ladies' Golf Union, of which everybody is aware. Let us ensure that in framing this legislation we do not create more difficulties for those for whom we are trying to obtain justice. We are introducing legislation which will ensure women who have not been allowed become full members of golf clubs, tennis clubs or other sporting organisations will no longer be discriminated against. In doing so, let us ensure that specific issues do not arise by providing the courts with the discretion to deal with circumstances such as those which arose in the past.

Mr. Connor: I rise to support Senator O'Meara's amendment. I am not a member of a golf club and I know nothing about golf. Perhaps the Acting Chairman, the Minister of State or Senator O'Meara can tell me about the history of discrimination against women in golf clubs. I cannot understand such behaviour. I would welcome any provision in legislation to deal with such discrimination. I await the explanation of such behaviour by my lady friends of greater rank in our midst.

Miss M. Wallace: Senators are trying to ensure golf clubs take into account the past associate membership of women rather than treating them as if they were joining for the first time. This is not, however, what the proposed amendment achieves nor would it be my intention to legislate against discrimination which existed in the past. The Bill does not have retrospective effect.

The effect of section 3(1)(a) is that discrimination which occurs after the commencement of the Act but which is based on a ground which existed in the past, regardless of when, will be covered by the Bill. As associate membership is not a discriminatory ground, the Senators' amendment does not achieve its intended purpose.

We cannot legislate to cover the position of women who have been associate members of golf clubs. Whether charging such persons full fees would constitute discrimination would depend on the circumstances of the case. I am aware that many women golfers consider it unjust that their historical association with a club could be discounted when membership fees, rules etc. are determined. I am advised that while the Bill can permit the making of concessions to women who were denied full membership, it would strain the concept of discrimination to include a provision on the lines proposed by the Senators. I have given careful consideration to the representations made by women golfers and I am proposing amendments to section 9 to meet those concerns. I cannot accept the amendment but we can look at the matter when we come to deal with section 9.

Ms O'Meara: I accept what the Minister of State says and she has put her finger on the problem. Since I am not a golfer I cannot speak from experience but a number of women-----

Mr. Connor: So the Senator cannot teach me.

Ms O'Meara: -----feel a great sense of injustice, particularly those who have held associate membership in the past. In many cases they have been forced to hold only associate membership. There is a great deal of anxiety and grievance that an anti-discrimination Bill is in effect causing them an injustice. The Minister of State is right in saying that what the golf clubs are proposing is not discriminatory. It may not be discriminatory but it is unjust. I know we will deal with section 9 later but I do not know whether the Minister of State is telling me it is possible to achieve what I want here or that she is not able to achieve it in the context of this section.

Amendment, by leave, withdrawn.

Acting Chairman: Amendments Nos. 8 to 10, inclusive, are cognate. Amendments Nos. 21 and 63 are related. Amendments Nos. 7 to 10, inclusive, 21 and 63 may be taken together by agreement.

Mr. Connor: I move amendment No. 7:

In page 7, subsection (1)(a), line 39, after "person" to insert "or group".

My amendment affects section 3 which refers to discrimination in a general way and describes what it is. I merely ask that in all subsections of section 3 where there is a reference to "person" or "persons" the word "group" would be added. That would give greater certainty to the application of this section and to the definition of discrimination. Several groups may suffer discrimination and their rights should be clearly recognised in this Bill - for example, a group of refugees, a group of migrants and a group of travellers. I want the term "person" or "persons" to be followed by the term "group" in the various subsections.

I do not know what the Minister of State's response to my amendment will be and I do not know how it would diminish the Bill. I believe it will enhance the Bill's provisions. This section defines discrimination and my amendment will help to clearly define it and give greater certainty. I appeal to the Minister of State to accept my amendment.

Ms O'Meara: Not only do I agree with Senator Connor but I would go further and say that the exclusion of the concept of groups from this legislation waters it down. Reference to groups was in the 1997 Bill. Senator Connor's amendment seeks to restore this important section. I ask the Minister of State to give us the rationale behind the dropping of the reference. I am convinced that leaving out the term "group" waters down this important legislation which will act very strongly, if properly used, to tackle and eliminate discrimination in our society.

Mr. O'Donovan: This legislation has been on the agenda for almost six years. There are nine grounds of discrimination spelt out in this Bill. I do not disagree with the tenets of Senator Connor's motion. The matter was originally referred to the Supreme Court in a parallel piece of legislation under the Employment Equality Act, 1977. The Act was withdrawn because of the Supreme Court's decision. As a consequence the Minister of State, her staff and advisers are constrained by the Supreme Court decision. This Bill should have been on the Statute Book long ago. It would be dangerous to debate areas of discrimination, broaden or introduce new definitions of it now because it might prolong the debate on this Bill.

It is important to note - the Minister of State might correct me if I am wrong - that the Bill has an inbuilt review system whereby this matter can be examined in two years' time and other aspects taken on board. Advice has been taken on this issue. The last Government dealt with it, it was sent to the Supreme Court and now it is back here again. There are nine areas of discrimination spelt out in the legislation. I am not saying the list is exhaustive and there is no room for improvement, but the Minister of State is acting with the best advice available to her. This legislation has been in the pipeline for five years, which is too long.

Miss M. Wallace: The points made by Senator O'Donovan about the Supreme Court are relevant in that it is half of the problem. We have two problems with these amendments. It is correct that the 1997 Bill covered discrimination against organisations as well as individuals. However, when the 1997 Bill was referred to the Supreme Court opposing counsel criticised the drafting of section 3(1) of that Bill as meaningless, a criticism which was upheld in our subsequent legal advice.

It does not make sense to apply the discriminatory grounds, such as "that one is male and the other is female", etc., to organisations. Not only does the inclusion of organisations present a serious drafting problem, but it is also arguable that such a provision might be as protective of an all-male or racially exclusive organisation as it would be of an organisation representing travellers or racial minorities. There are two reasons, therefore, that the Bill does not apply to discriminations against organisations but to discriminations against individuals. I cannot accept the amendments which attempt to reinstate organisations into the definition of discrimination.

Under the 1999 Bill it will still be possible for an individual who encounters discrimination as a member of an organisation, such as a member of a Traveller organisation, to bring a claim of discrimination on an individual basis. Aside from the Supreme Court having difficulties with it, there is also the difficulty that we could be protecting a racially exclusive organisation or an all-male organisation, which is not what we are trying to do. The Senators are trying to ensure I am protected by the legislation if I am discriminated against because I am a member of a Traveller organisation, but I am protected because I can bring a claim as an individual.

Ms O'Meara: Can a group, such as a Traveller organisation, make a claim if it has been discriminated against or is it only an individual who can do so?

Mr. Connor: I am glad the Minister of State accepts the principle of our argument. What did the Supreme Court judgment in the 1997 Bill say about the inclusion of groups? Is there something in the judgment which makes it impossible to include the term "group" here? Travellers or people in the gay and lesbian community may be discriminated against as a group. Can they as a group take action under this legislation? The only appropriate way to seek redress may be as a group.

Mr. O'Donovan: The Supreme Court judgment did not deal specifically with this aspect.

Mr. Connor: Nor did it mention it.

Mr. O'Donovan: The difficulty for the Minister of State and her officials and advisers is that the referral of the 1997 Bill to the Supreme Court and its subsequent decision rocked the system because it was not anticipated. As a result, the Minister and the Minister of State went to considerable trouble to ensure that all angles were covered in order that the same thing would not happen with this Bill. I have no doubt the Minister of State took advice on this Bill which meant everything had to be examined in great detail. After almost five years of debate by different Governments and advice from different Attorneys General, it is time to move on. I understand what Senator Connor is trying to achieve but unless the Minister of State agrees to change it, we may have a problem.

Miss M. Wallace: As regards the reference to the Supreme Court, opposing counsel in the Supreme Court-----

Mr. Connor: Opposing counsel will oppose everything.

Miss M. Wallace: -----criticised the drafting of section 3(1) of the Bill as meaningless, a criticism which was upheld in our subsequent legal advice. If I and everyone in this Chamber feel discriminated against because we are members of a traveller organisation we can take individual cases. It must be an individual case because we have been discriminated against as an individual.

Ms O'Meara: I take it one cannot take a case as a group.

Miss M. Wallace: No, but the individuals in the group can take a case as individuals.

Ms O'Meara: That waters down the Bill. The Government has taken a narrow and cautious view of Supreme Court judgments in amending this and other legislation and has gone further than it needed to go. I would like to explore the consequences of the Supreme Court judgment because it does not affect this area.

The Minister of State has answered my question that a group cannot take a case under this legislation. I can think of few groups more appropriate to mention in the area of discrimination than travellers. Travellers are not necessarily discriminated against as individuals but as members of the traveller community. This legislation prevents travellers from taking a case as a group. The Bill is considerably watered down by the exclusion of this paragraph which was included in the earlier Bill. My good advice - the Minister of State knows where I get it - is that this paragraph should be included because the Bill is considerably weaker without it.

Mr. Connor: I support Senator O'Meara. The reference to "person" is clear and is repeated in every subsection. As we stated, there are many cases where discrimination is against a group of people. The only appropriate way it can be dealt with is if that group has a form of redress in law. However, the Bill is against that principle. It is a lame excuse to say that opposing counsel in the Supreme Court hearing of the 1997 Bill criticised it, although I do not blame the Minister of State because I am sure she is taking the advice available to her. Opposing counsel has the privilege to say whatever it likes. If the judges in their final judgment made a reference to the fact it was clearly unconstitutional, we would have to take account of that. To take account of something an opposing or a defending counsel stated at the outset of a hearing of any case is ridiculous.

Mr. O'Donovan: I am subject to correction but my understanding is that it would be unusual for an association or a group to initiate legal proceedings. A limited company is a legal entity and a person or a number of people can take a case. I have yet to see a Traveller association take a case. There is a group in Munster which is not happy with the milk quota regulations brought in by the Minister. I heard yesterday that it has decided that three members of the group will bring a test case rather than the association. I am not sure if High Court or Supreme Court rules provide for a group to initiate such an action.

I cannot understand the problem if a person or a number of persons in a group or an association can take a case. The Minister had to take cognisance of the Supreme Court decision and that section was referred to. Not only did the opposing counsel refer to it but when it was referred back to the Government's legal advisers, it was found that the points of law made by the counsel in the Supreme Court - they were on the opposite side - were correct.

Perhaps Senator O'Meara is correct in saying the Minister and the Government are being a little cautious but under the circumstances and having regard to the fact it has been trawled through by the highest court in the land, caution is important. The Minister is constrained because of the Supreme Court referral, and that section was specifically referred to. It is not a question of the Minister being overcautious because she has good reason to be.

Miss M. Wallace: I do not mind if Senators say we are over the top in regard to caution because we have to be. This Bill has already foundered before the Supreme Court and has been found unconstitutional.

Ms O'Meara: Not on this issue.

Miss M. Wallace: Because of that, we do not want to find ourselves in the same position in which the last Government found itself this time three years ago with another unconstitutional Bill. There are many important parts to the Equal Status Bill which we must put on the Statute Book, albeit three years after it was first attempted. We cannot take even the slightest risk here, so caution is the heaven under which we operate.

On Senator Connor's point, it needs to be said that the judgment did not cover the detail of the Equal Status Bill. As he will recall, it covered the detail of the Employment Equality Bill, although they were twin Bills and there were similarities between the two. We do not really have the benefit of a detailed judgment on the Equal Status Bill and, therefore, we must look at issues such as those which the opposing counsel might have made. If our advice had said it was irrelevant, that would have been fine. However, our advisers have said it is a relevant point and needs to be looked at. It is essential to look at those cases.

In regard to what Senator O'Donovan said, I am on a committee which is talking about taking out an injunction. The solicitor's advice at the meeting last night was that it would not be taken out in the name of the committee but in the name of an individual, the chairman of the committee or whoever. It will be taken out in the name of the chairman, Mr. Pat Smith, or whatever his real name is, and not in the name of the residents association. Associations do not necessarily take cases.

If we take the case about which the Senator is concerned - a problem in Pavee Point - will individuals or that organisation take the case? The result will be the same. If I, or the Senator, as a member of Pavee Point, am discriminated against, the result will be the same. It does not matter how many people take a case, the result will be the same. The key factor is that we cannot take any risks with this legislation. We could debate this issue all day but we will not take risks with this legislation.

Ms O'Meara: The point the Minister made about organisations as opposed to groups is not the point I made, as she knows. We are familiar with situations where a named person takes a case on behalf of a residents group, Pavee Point or another organisation. That is different to what I am talking about. I am talking about a group in the community. If an individual goes to court to get relief, I understand - although I am not a lawyer - that only the individual who goes to court gets relief and not the unnamed hundreds who do not. I seek to explore a situation where hundreds of people can take an action as a group because they are being discriminated against as a group.

The Minister made my point on the cautious approach being taken by the Government. It is being far too cautious. We had a long debate on the Employment Equality Act, particularly as it affected disabled people in the workforce, and on the Supreme Court judgment. Lawyers could argue the toss on the matter all day but it is my opinion - the Minister confirmed it in her remarks - that the Government is being far too cautious in regard to the Supreme Court judgments.

The Supreme Court found certain issues and the way the Legislature dealt with them incorrect under the Constitution, and the Government must deal with that. However, that does not necessarily mean the Government must take the view that everything must be placed under the stethoscope as a result. The Employment Equality Bill was sent to the Supreme Court and it found certain sections unconstitutional. That is what we must deal with. We had considerable discussions on that when the amended version was before the House. The Minister is being far too cautious and, as a result, is undermining the Bill.

Mr. Connor: I reiterate what I, and Senator O'Meara, said in that the Government is being far too cautious. Going back to the Supreme Court judgment on the other Bill, the decision given was not even remotely related-----

Ms O'Meara: Vicarious liability.

Mr. Connor: ----- to what we are discussing.

I refer to the point made about Pavee Point, a Traveller welfare group - perhaps it describes itself as something different - which puts forward the welfare and the point of view of the Traveller community in this city. It is easy to envisage discrimination against that organisation as a group. Does it have redress under this Bill to go to court for relief, as it has been described, if it felt it was being discriminated against as an organisation representing the interests of Travellers?

First, there was a caution which proceeded from the opinion of counsel in the Supreme Court hearing, which I did not think was very relevant. Now we have the caution advised by the Attorney General. The current Attorney General has been a cautious and, indeed, an incautious man at times. I was a colleague of his in the other House and I am not satisfied that he always gives the best advice - I do not want him to take that personally. If, God forbid, I got involved with the courts, I would not altogether want him to defend me in love or in war.

Miss M. Wallace: We took this advice before the present Attorney General came into office, as the Senator will note -----

Mr. Connor: I hope the Minister is acting on current advice now.

Miss M. Wallace: ----- when he looks at how long we have been dealing with this legislation.

I say to Senator O'Meara that if Pavee Point was refused permission to book a room in a local hotel and wanted to take a case, it could. The secretary of Pavee Point who rang up to book the room can take the case as an individual. In essence, it has the same result. We must bear in mind we are talking-----

Ms O'Meara: The discrimination was not against the individual as a named person but against the organisation.

Miss M. Wallace: Yes, but they could take the case. It is covered by the Bill. The cases we are talking about are being referred to the Director of Equality Investigations. The 100 members of Pavee Point can write to the director and claim that they have been discriminated against as an organisation. It is not a case of going to court or legal fees but of asking the Director of Equality Investigations to look at the case. We can review these issues in the two year review. In the meantime, the priority is not to be here in June with another Bill which has not been added to the Statute Book.

Amendment, by leave, withdrawn.

Amendments Nos. 8 to 10, inclusive, not moved.

An Leas-Chathaoirleach: Amendments Nos. 11 and 12 are related and may be taken together by agreement.

Ms O'Meara: I move amendment No. 11:

In page 8, subsection (1)(c)(ii), line 12, after "so" to insert "at all or without suffering a detriment".

 

These amendments have been referred to as the "golfing" amendments and are designed to cover a situation where a minority group can comply with a condition under the legislation but only suffer a detriment. I will not go over the arguments again but let us not create an injustice in bringing forward legislation designed to eliminate discrimination and to offer recourse to those who have suffered discrimination.

Miss M. Wallace: I cannot accept these amendments. The definition of indirect discrimination is equivalent to that in the 1997 Bill and follows generally accepted international norms for defining indirect discrimination. The amendments would, when considered in conjunction with section 3(1)(c)(iii), introduce considerable uncertainly into the definition. If a person cannot comply with a condition then it is possible to establish whether a particular category or person suffers disproportionately from the requirement. If, however, as the amendment proposes, the degree of compliance with the requirement is taken into account, it becomes extraordinarily difficult to determine whether the requirement has a disproportionately adverse effect on a particular category.

Amendment, by leave, withdrawn.

Amendment No. 12 not moved.

Mr. Connor: I move amendment No. 13:

In page 8, subsection (1)(c)(iv), line 16, before "justified" to insert "objectively".

 

These amendments seek to add strength and clarity to the Bill. Subsection 3(1)(c)(iv) concerns the obligations to comply with the conditions. We wish to insert the word "objectively" before the word "justified" and to replace "necessary" with "reasonable". We have discussed this issue but there are insufficient objective criteria in the descriptions in the Bill. These reasonable amendments would add clarity and I do not know what arguments the Minister of State can make against them.

Miss M. Wallace: The test is similar to the wording of section 31(1)(d) of the Employment Equality Act, 1998, which deals with indirect discrimination on grounds other than gender. It is also unchanged from the Equal Status Bill, 1997. I do not consider it appropriate to amend this provision as proposed by the amendments as it would create an unnecessary departure from the provisions of section 31 of the Employment Equality Act. Furthermore, it will be a matter for the Director of Equality Investigations to decide whether the conditions in question have discriminatory effects which cannot be justified as being reasonable in all circumstances. It is not a matter for subjective judgment and, therefore, it is not necessary to say that the justification is objective.

Amendment, by leave, withdrawn.

Amendment No. 14 not moved.

An Leas-Chathaoirleach: Amendments Nos. 16 to 20, inclusive, and amendment No. 81 are related to amendment No. 15 and they may be taken together by agreement.

Ms O'Meara: I move amendment No. 15:

In page 8, subsection 2(h), line 38, after "origins" to insert "or they are of a different linguistic group".

 

This is an important group of amendments, some of which have become more relevant and important since the publication of the Bill. The amendments apply to the section of the Bill concerning discrimination which is critical for the interpretation of the Bill in terms of defining when discrimination has taken place.

Section 3(2) defines the grounds for discrimination between any two persons. The grounds are comprehensive and include gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community.

These amendments seek to add grounds of membership of a different linguistic group, trade union membership, welfare, refugee, asylum seeker and political affiliation. By any objective analysis these amendments would add to the effectiveness of the legislation. The Minister of State is obviously losing patience in terms of how long it is taking to get this legislation onto the Statute Book considering the views of the Supreme Court and so on. However, this legislation will be of considerable importance, particularly to those being discriminated against.

The objective of Members of both Houses and the Minister of State is that we will have a powerful, effective and comprehensive Bill. The section is comprehensive but it is not complete as it omits grounds which we know to be used to discriminate against certain people. I can give no better example than the position of asylum seekers and refugees.

The grounds of membership of a different linguistic groups, trade union membership and welfare are also important but, perhaps, less common in the current climate. However, even if the incidences are few and do not come to public attention as much as other grounds, that is not a good reason to omit them from the Bill.

The inclusion of the ground of trade union membership was requested by ICTU and is very important as is the ground of membership of a different linguistic group as suggested by the Refugee Agency. However, this issue does not necessarily have to refer to a racial context. For example, it is possible for Irish speakers to be discriminated against. The ground of trade union membership was pursued by the Progressive Democrats in the 1997 Bill. The inclusion of the refugee and asylum seekers grounds have been requested by the Refugee Agency. These are important matters which I hope the Minister will consider and include.

In recent months the asylum seeker issue has arisen in an extremely worrying fashion. We are faced with a situation we could not have previously envisaged which must be dealt with by legislation and by other means. Certainly the situation could not have been envisaged when the Bill was drafted. Times and circumstances have changed and the Minister must bear that in mind. The Bill must contain the refugee and asylum seeker grounds.

Mr. Connor: We are trying to strengthen the application of this Bill and its meaning by adding other categories to the nine areas clearly identified in the Bill. Those in different linguistic groups, members of trade unions and welfare recipients can easily be discriminated against.

If a person has refugee status, he is entitled to the full protection of the State and to welfare. It is important that we specify that in the legislation because the issue of asylum seekers and refugees is so important.

On Monday I will chair a meeting of the Sub-committee on Migration of the Council of Europe in Paris. Before the representatives of 41 countries, I will call on various NGOs and experts to report on the treatment of asylum seekers and refugees, particularly in relation to their reception at airports and their expulsion from the country which they have sought to enter. My fear is that I will have to hang my head in shame when the report on this State is made. These people will make objective reports, they are representatives of NGOs with no axe to grind, or they are experts who have researched their work, and I do not know what I will hear. I am not hopeful that I will hear good things about my country. That will put me in an embarrassing situation as chairman.

It is important that we identify political affiliation as a possible ground for discrimination. We are a mature democracy but it is not long ago that a member of the Communist Party in this State would have suffered discrimination. I am an active opponent of communism but if that is a person's belief, it is fine with me. It is right and proper that a person is able to pursue his beliefs in a democratic manner and that the law protects his legitimate political activity.

The Minister will tell me that the nine areas included here were previously identified in the 1997 Bill, but there is nothing wrong with making it more comprehensive. We do not want to delay the Bill's progress - it should have been on the Statute Book long ago - but we want to make it better. We will not revisit this for many years.

Miss M. Wallace: It will be reviewed in two years' time.

Mr. Connor: That is a review. There should be provision for a statutory five year review irrespective of what happens in two years. We must do this properly now because we will never do in the course of a review what we can do at this stage. I appeal to the Minister to accept most, if not all, of these amendments.

Mr. O'Donovan: Senators O'Meara and Connor are attempting to add a number of new areas of discrimination. There are nine grounds of discrimination in the Bill. The 1997 Bill included the same nine areas.

I understand Senator O'Meara's point about asylum seekers and refugees but it puzzles me that we talk about discrimination when millions of pounds are being spent on them, they have free legal aid and the right to appeal and they are put up in very good accommodation. There are 60 of them living within a few miles of me and I have given them a lift on occasion to try to understand their mindset.

In Bantry there are 220 people on the housing list. Tomorrow houses will be allocated to people who have been on that list for eight or nine years. There are 22 houses being allocated, thus leaving 200 people dissatisfied. Two weeks ago at my advice clinic, a young single mother of a five year old girl came to see me. She has been on the list for six years but most of the houses which will be given out have three or four bedrooms so this woman, who works part-time to raise her child, is very unlikely to be accommodated. In the nearby three star hotel, however, these people are getting first class accommodation. That made me think. That woman feels discriminated against because the asylum seekers are getting first class treatment and accommodation while she lives in a crappy old mobile home. There must be some restrictions.

Three Attorneys General have given advice on the Bill and the Minister has gone to extreme trouble to ensure that any challenge to the Supreme Court will not succeed. This Bill must be passed sooner rather than later but if we start to introduce new grounds its passage will be delayed and the likelihood of a successful challenge to the Supreme Court will be increased. There is provision in the Bill for a review every two years. If, in two years' time, we feel that other grounds should be added, that would be the appropriate time to do it.

I listened to what Senators Connor and O'Meara said, but if we go down the road of including more discriminatory grounds, we will be here this time next year debating further legislation and those whom we represent in terms of these discriminatory grounds will not thank us for prolonging the debate. If the Minister of State is exercising caution in some area, she is entitled to do so. We have been rapped on the knuckles over this before and, therefore, we must move cautiously. A measure provides for the review of this legislation in two years' time and that is a short period in political life to re-examine this area.

Ms M. Wallace: Regarding the issue of refugees and asylum seekers, the Bill provides for discrimination on race grounds, which includes colour, nationality or ethnic or national origin. Since the Bill applies to everyone in the State, irrespective of his or her status, it will be possible for a person who is an asylum seeker or a refugee to bring a complaint of discrimination on any of the nine discriminatory grounds. If an asylum seeker or refugee considers that he or she has been treated less favourably in the provision of goods and services because of his or her race, colour, nationality or ethnic origin, it is open to him or her to take a case of racial discrimination under this Bill.

This Bill will afford real protection to refugees and asylum seekers who experience such discrimination. Under section 3 of the Refugee Act, refugees are entitled to the same rights as an Irish citizen to employment, education, health services, social services, etc. The State makes all its services available to refugees and Irish citizens on the same basis.

As Senator O'Donovan said, the nine discriminatory grounds listed in the Bill are in line with those in the Employment Equality Act, 1998, and much work needs to be done to eliminate discrimination in our society on those nine existing grounds. Senator O'Meara said the Minister is losing patience; it is not only the Minister but the people represented in terms of the nine discriminatory grounds who are also losing patience because this legislation has not been passed after all this time.

Senator O'Meara also referred to amendments tabled by the Progressive Democrats and other parties to this legislation in the past. I remind her this legislation was originally introduced by the then Fianna Fáil-Labour Government in 1993 and that Government devised these nine grounds of discrimination. The then Labour Minister stuck with those nine grounds and the Fianna Fail Minister will also stick with them on the basis, as explained by Senator O'Donovan, that we have come a long way towards getting this legislation on to the Statute Book and we want to continue with it on behalf of all those, including many Irish people with disabilities and others who have been discriminated on other grounds, who are anxiously awaiting its enactment.

Regarding Senator Connor's point, I stress that paragraph (4) of section 2 provides that a review of the measures will take place within two years after the provisions of the Act are brought into operation to assess whether there is a need to add to the nine specified discriminatory grounds at that stage. A similar provision applies to the Employment Equality Act.

Given the complexity and the broad scope of the Bill, additional discriminatory grounds cannot be added on the grounds that it is important to ensure that the people referred to are also not discriminated against. If a change is made to section 3, the implications such a change has for the rest of the Bill must be assessed, including the fact that there may be possible exemptions depending on the discriminatory ground proposed. Such additional discriminatory grounds could be considered in the context of a review by which time we will have substantial experience of the operation of the legislation. It is fair and reasonable to proceed on the basis of the nine discriminatory grounds listed. We have talked about them for six or seven years. The people represented in terms of those nine discriminatory grounds are anxiously awaiting the enactment of this legislation and we will consider what further grounds may be added when the Bill is reviewed in two years' time.

Mr. Connor: I thank the Minister of State for her comments. At the very minimum, she should accept the inclusion of the discriminatory ground of being a refugee or an asylum seeker. I make a final appeal to her on the basis that if there is an act of discrimination or almost a campaign of discrimination against any sector here, it is against refugees and asylum seekers. One leading evening newspaper here has consistently run headlines appealing to albeit a minority gallery who are anti-refugee and anti-aslyum seeker. The Government could not send a better message to that minority who hold that sentiment but which has great potential to grow than to include the discriminatory ground of being a refugee or an asylum seeker. We know from the experience of other mature democracies that xenophobia and racism can become popular. It is always up to a Government to lead on these issues.

It is one of the dark sides of human nature that at times where there is a high level of migration or people are on the move and there is an influx of refugees that anti-asylum seeker and anti-migrant sentiments are easily whipped up in the tabloid media or in the so-called popular media. They are playing for a corner of the market which believes in what they are reporting, but that is not giving a lead. It is up to the Government to give a lead. I appeal to the Minister of State to give a lead here on the basis of the background to this issue. She and the Minister are also aware of it. References to accommodating refugees or asylum seekers in disused barracks or in flotels offshore with facilities that are far below a basic standard do not inform this debate the way it should be informed in a civilised country.

This country, above all countries, should reach out legislatively and in terms of our national expression to those people who want to come to our shores because we sent many an unfortunate person from these shores. They were economic refugees. For the first 75 or years or more years since this country gained independence it could not provide a livelihood for a quarter and sometimes a third of the sons and daughters it produced. In the 1980s we could not get an accurate figure of the number emigrating; it was probably far in excess of 150,000. Those young people, many of whom were well trained and educated, had to leave this country for economic reasons. We did not call them refugees, but if people from Kosovo. Bosnia or Nigeria came here for the same reason we would call them refugees. Many of our emigrants went to the United States of America. They followed the traditional emigration trail of their ancestors.

At a time when this country is experiencing such a level of economic growth and is a popular destination in terms of economic opportunities, we should accommodate people who cannot find an opportunity to advance economically and often socially in their own countries.

Ms O'Meara: I reiterate everything Senator Connor said. I also appeal for leadership from the Government on the matter of refugees and asylum seekers. We have got very little, if any, leadership on this matter from the Government. This is a worrying phenomenon because in the absence of such leadership and tolerance the ground is left open for the generation of fear into what undoubtedly will become, if it has not already, racial hatred. The example Senator O'Donovan gave is one that could be replicated around the country. It is up to us as public representatives in answer to that woman's question to say that we as a nation, a member of the European Community and a member of the wider world community, have a responsibility to house refugees, to treat them with humanity and to investigate their claims for refugee status or asylum seeker status and to ensure due care and attention are paid to their rights as human beings and individuals. If we allow them to be treated less favourably than our own citizens, we are asking for racial hatred, and we will get it. As Senator Connor said, we can use this legislation to give a lead on how we treat refugees and asylum seekers. Such a lead is absent at present.

Why is the Traveller community specifically mentioned in this section? This is because of the treatment Travellers have received in the wider community through the years and we now accept the need to include in legislation specific protection against discrimination against the Traveller community. The perception of asylum seekers and refugees can be very similar to that of Travellers. People see them as somehow lesser people of whom they are afraid. They are perceived as living in lesser ways than the wider community. In many cases they are excluded from services such as insurance, from hotels, bars and so on. This is why the legislation includes the Traveller community as a specific group.

It could be argued that the ground of race includes refugees and asylum seekers. However, this is not so in all cases given the emerging problem of how people perceive refugees and asylum seekers. Senator O'Donovan's comment could be repeated hundreds of times in relation to the location of refugees, particularly in this city. Given what is happening, it is imperative this section is included in the legislation. It was not included in the legislation six or seven years ago because no one anticipated such a problem. Such a problem did not exist at that time. I do not accept the argument that because the measure was not included then, it should not be included now. It was not included then because it did not appear necessary but it is definitely necessary to include it now.

Miss M. Wallace: Listening to the debate one would think the race ground is not included in the legislation.

Ms O'Meara: I accept it is included in the legislation.

Miss M. Wallace: We must accept that refugees and asylum seekers are by their very nature of a different nationality. If an asylum seeker or refugee considers that he or she has been treated less favourably in the provision of goods and services because of his or her race, colour, nationality or national or ethnic origin, it is open to him or her to take a case of racial discrimination under the Bill. The points made by the Senator are covered under the race aspect of the Bill.

On Senator Connor's concerns in relation to affording refugees the same status as Irish citizens in terms of services, section 3 of the Refugee Act entitles refugees to the same rights as Irish citizens in terms of employment, education, health services and social services. The State makes all services available to refugees and Irish citizens on the same basis.

Mr. Connor: I accept that but I would like it to be stated in the legislation.

Miss M. Wallace: The Bill is anti-discrimination in relation to the provision of goods and services, therefore, if a refugee or asylum seeker finds that he or she is being discriminated against in terms of race, colour, nationality or national or ethnic origin, he or she can take a case under the legislation. If after two years we find the legislation needs to be clearer, we can discuss it further. If we begin discussing the issue now, we will not even get the race aspect through in two years. Let us get the issue of race discrimination on the Statute Book and allow people to take a case in the year 2000.

Amendment put.

Tá

Burke, Paddy.

Caffrey, Ernie.

Coghlan, Paul.

Connor, John.

Coogan, Fintan.

Cosgrave, Liam T.

Cregan, Denis (Dino).

Doyle, Joe.

Henry, Mary.

Jackman, Mary.

Manning, Maurice.

McDonagh, Jarlath.

Norris, David.

O'Meara, Kathleen.

O'Toole, Joe.

Níl

Bohan, Eddie.

Bonner, Enda.

Callanan, Peter.

Cassidy, Donie.

Cox, Margaret.

Cregan, John

Dardis, John.

Farrell, Willie.

Finneran, Michael.

Fitzgerald, Liam.

Fitzgerald, Tom.

Fitzpatrick, Dermot.

Gibbons, Jim.

Glynn, Camillus.

Keogh, Helen.

Kett, Tony.

Kiely, Rory.

Leonard, Ann.

Lydon, Don.

Moylan, Pat.

O'Brien, Francis.

O'Donovan, Denis.

Ormonde, Ann.

Quill, Máirín.

Tellers: Tá, Senators Burke and O'Meara; Níl, Senators T. Fitzgerald and Keogh.

Amendment declared lost.

Amendments Nos. 16 and 17 not moved.

Mr. Connor: I move amendment No. 18:

In page 9, between lines 10 and 11, to insert the following new paragraph:

"(k) that one is a refugee and the other is not (in this Act referred to as the 'refugee ground').".

 

Amendment put and declared lost.

Mr. Connor: I move amendment No. 19:

In page 9, between lines 10 and 11, to insert the following new paragraph:

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

ground').".

 

Amendment put and declared lost.

Mr. Connor: I move amendment No. 20:

In page 9, between lines 10 and 11, to insert the following new paragraph:

"(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. 21 not moved.

Mr. Connor: I move amendment No. 22:

In page 9, between lines 18 and 19, to insert the following new subsection:

"(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).".

 

The Minister will say that the legislation will be reviewed after two years, and one welcomes that. However, there are many precedents for a five year review. The legislation should be reviewed after five years and again after another five years. The interim review after two years is welcome but the Minister should accept the principle of a five year review. Such reviews are seen as good practice in the case of other legislation and many international conventions. Grounds for discrimination, such as the refugee and asylum seeker grounds, would not have been envisaged two years ago. In two years' time we will, no doubt, surprise ourselves again when new issues arise. Let us establish the practice of reviewing the legislation after five years and again after another five years.

Ms O'Meara: I support Senator Connor's amendment. The Minister has spoken about the review of the operation of the legislation in two years' time but I am sure she will agree it is very unlikely that a review after that time would evoke a legislative response. A comprehensive look at the working of the legislation would be necessary to justify bringing amendments or an equal status (amendment) Bill to the House.

Five years is an appropriate period in which to assess the effectiveness of the Bill. Given the Government's record and considering the Employment Equality Act, it is unlikely that the Bill will come into operation immediately and it will take a number of months to take a case to the Director of Equality Investigations and to have it assessed. Therefore two years is far too soon to judge how the legislation is operating. Five years is a realistic and appropriate period to allow for a proper review of the operation of the Act. The Act covers new ground and we do not know what its effect will be. I urge the Minister to accept this amendment.

Dr. Henry: We sometimes introduce legislation of this sort but are not sufficiently careful about monitoring its effect, which I hope in this case will be excellent. Recent legislation prescribed a mandatory sentence of ten years for those convicted of having more than £10,000 worth of drugs in their possession. When one reads in court reports how frequently such sentences are reduced on appeal, one wonders why we passed the legislation at all. Indeed, I was not in favour of it. A review of that legislation would tell us that it is not having the desired effect.

Five years is a relevant and reasonable length of time in which to monitor this legislation for the purpose of a review. I congratulate Senator Connor on tabling this important amendment and I support it.

Mr. O'Donovan: The point has been made repeatedly and clearly that an automatic review after two years is built into this legislation. At that time it could be decided to carry out another review after a further two years. Two reviews could be carried out within the next five years. As the Bill specifies a mandatory review after two years, the proposal to review the legislation in five years could cause confusion. The mechanism for a review is already included in the Bill and we should leave well enough alone. Other grounds for discrimination can be added at the two year review. A five year review would create more problems than it would solve.

Miss M. Wallace: Senator O'Donovan has covered much of what I wish to say. Section 3(4) already provides for a review within two years to assess the need for an additional discriminatory ground. There is a similar requirement in the Employment Equality Act.