As Senator O'Donovan said, the possibility of a further review can be considered when the two year review is complete. For those reasons I am not prepared to accept the amendment.

I draw the Senator's attention to section 39 in Part IV of the Bill which deals with the additional functions of the equality authority. Paragraph (c) reads, "To provide information to the public on and to keep under review the working of this Act and, whenever the Authority thinks it necessary, to make proposals to the Minister for its amendment". The authority is therefore responsible for the day-to-day operation of the Bill and its twin sister, the Employment Equality Act. If it decides that there is a need for change it will make proposals to the Minister for its amendment under section 39(c). It is therefore better to leave the Bill as it stands; otherwise, as Senator O'Donovan said, the operation of the Bill would be reviewed twice in the next five years.

Mr. Connor: I am in no doubt about the Minister of State's good intentions. Unfortunately she is not Minister for Justice, Equality and Law Reform. Personally I hope she is when the time comes to decide on these matters. While I accept what she said, it is necessary to state that the operation of the Bill should be reviewed after a period of five years. Human rights law is developing at a rapid rate and even in countries as advanced as this there is much ground to be made up. I hope ten years from now human rights norms and law will have progressed further. There are whole areas which need to be developed.

I am a member of the Council of Europe which looks at human rights law. While there have been many positive developments in the past 20 years, there will need to be further changes, new developments and innovations in the next ten to 20 years. It is for that reason that it is necessary to state that all legislation dealing with human rights should be subject to regular review. It is extremely difficult to have new legislation of this nature introduced in either House, there is always a view that existing legislation is adequate. I am therefore attracted to the idea that the operation of the Bill should be reviewed after a period of five years.

Amendment put and declared lost.

Section 3 agreed to.

SECTION 4.

Acting Chairman (Mr. D. Cregan): Amendments Nos. 23, 24 and 25 are out of order as they involve potential charges on the Revenue.

Mr. Connor: That is a matter of great regret. I wished to make a number of points on accommodation for persons with a disability.

Amendments Nos. 23 to 25, inclusive, not moved.

Mr. Connor: I move amendment No. 26:

In page 10, between lines 15 and 16, to insert the following new subsection:

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

 

It is often stated that providing special facilities or services for a child with a disability in a school may have the effect of placing other children at a disadvantage. I cannot accept that argument. It should be possible to provide facilities and services for children with a physical disability in a school or educational institution without affecting the facilities and services provided as of right for all other children. I do not know if a good argument can be made against enshrining this principle in the Bill. Naturally schools will state that there are staff and accommodation shortages but given the level of economic growth and prosperity achieved we ought to have the reached the point where we are in a position to ensure all such children are provided with the best possible facilities and services. This should not hinder in any way the facilities and services provided for all other children.

Schools and educational institutions, all the facilities of which are paid for by the State, should never be allowed to use this as an excuse. It is not an acceptable argument that providing special facilities and services for a child with a disability will place all other children at a disadvantage.

Dr. Henry: This is the section on which the previous Bill was struck down by the Supreme Court. It is extraordinarily sad at a time when we keep boasting about the money available that it has been watered down more than necessary.

On amendment No. 26, modern thinking within educational establishments - given her interest in people with a disability I am sure the Minister of State is in favour of this - is that children with disabilities should be integrated wherever possible into the general school system. At a time when more money than expected is coming in, why can more classroom attendants not be employed to provide the extra help these children require? On what is the money to be spent? There are ample opportunities to spend it to the benefit of the population by advancing projects such as the integration of children with a disability into the general school system. Extra classroom assistants would be required to take the children concerned to the lavatory in particular.

We do not seem to like considering the matter because the facilities required to integrate people with a disability into the community are considered personal. If a person in a wheelchair wants to go to one of the lavatories in Leinster House the situation is absolutely appalling. One of the amendments which cannot be discussed because of its financial implications would have an impact on this matter. If it is being said that the people concerned should be allowed to become part of the community something has to be done. Are we really asking for intermittent catheterisation for them in some corner with the consequent risk of infection? We are talking about the provision of basic physical facilities. The Bill unfortunately goes nowhere near covering the people concerned who have a wish to become involved in life.

I have spoken frequently in the House and written to the Minister of State about the allowances payable to disabled persons. The Minister of State should not think that I believe she is not sympathetic. She is. I just wish she was running the show to ensure there was more action on this matter. It is difficult for people to understand when a Minister boasts about the amount of money available and says, "Let's party" while some people cannot get into the general run of the life of the country, never mind to the party. I ask the Minister to accept this amendment for the sake of the children.

Ms O'Meara: I, too, support Senator Connor's amendment for the reasons set out by my colleagues on this side of the House. It is regrettable that amendments Nos. 23, 24 and 25 have been ruled out of order because we are unable to discuss the cost of providing-----

Acting Chairman: The Senator may raise relevant points on the section.

Ms O'Meara: Thank you for the clarification. I will probably do that. Senator Connor's amendment is worthwhile. It is difficult to argue against and we have spoken in theory about the right to education of disabled children in particular. It is now time to put our money where our mouths are.

Miss M. Wallace: The good news is that if Senators look at section 4(5) of the legislation since coming from the other House they will find that what they have requested is covered. The drafting of the equal status legislation was developed in close consultation with the Department of Education and Science. It does not dilute the provisions in any way of the Education Act, 1998, with regard to people with disabilities and it will allay the fears expressed by Senators and Deputies. It ensures the equal status legislation cannot be interpreted as being prejudicial to the provisions of the Education Act. The other relevant sections 7(2)(a), 9(a) and 15(2)(g) of the Education Act come under section 4(5). If Senators would like me to explain these sections I will do so.

Acting Chairman: Are they under this section?

Miss M. Wallace: They are sections of the Education Act. Is that detail required?

Mr. Connor: We will take the Minister's word on this. It is something I had not noticed. She will appreciate the reasons for tabling the amendment and that it received support on this side of the House. Ordinary citizens and myself see it as potential discrimination or, indeed, discrimination which may exist and should be addressed in this legislation. I take the Minister's word that our fears are addressed elsewhere in law.

Miss M. Wallace: For clarification, it would be useful to refer to section 15(2)(g) of the Education Act because it was framed to take account of the Supreme Court finding on the Employment Equality Bill. It states that the reasonable provision and accommodation for students with disabilities is to be done from "resources provided to the school from monies provided by the Oireachtas". It thus avoids any implications that school authorities must use their own resources for this purpose. The wording of the Equal Status Bill is thus consistent with the requirements of the Education Act, 1998, and does not dilute it in any way.

Section 7(2)(a) of the Education Act gives the Minister for Education and Science certain functions regarding funding which includes funding for support services for students with a disability. Section 9(a) requires schools to use available resources to ensure that the educational needs of all students, including those with a disability, are identified and provided for. Section 15(2)(g) requires a board of management to use the resources provided to the school from moneys provided by the Oireachtas to make reasonable provisions and accommodation for students with a disability or other special education needs, including, where necessary, alteration of buildings and provision of appropriate equipment. Section 4(5) ensures that the equal status legislation cannot be interpreted as being prejudicial to the provisions of the Education Act. The requests made by Senators are covered in the Education Act and it cannot be interpreted that there will be fewer facilities - it cannot be watered down.

Amendment, by leave, withdrawn.

Question proposed: "That section 4 stand part of the Bill."

Ms O'Meara: From what the Minister said, I take it that private education institutions will not be covered by the joint terms of the two Acts. The Minister pointed out that accommodation specifically for disabled students is provided through moneys voted by the Oireachtas and does not cut across the Supreme Court judgment. Presumably, that means if somebody in a wheelchair wanted to go to a private institution and was being prevented from doing so, he would not be protected.

With regard to the undue difficulty and the cost to an employer of employing a disabled person - which emerged from the Employment Equality Act and was struck down by the Supreme Court - it appears the Government has been far too cautious in its response and has not dealt with it sufficiently. It could have been far more creative and imaginative. This legislation does not provide an adequate level of protection and rights for disabled people. This should be the intention of all Members of the Oireachtas of all political parties - I made this point on the Employment Equality Bill also. The spirit of our intention has not been expressed in the legislation.

Dr. Henry: Like Senator O'Meara, I am disappointed this legislation does not go further because so much lip service is paid to helping people with disabilities. It is important to remember that one does not have to be born with a disability, one can be acquired. Because we are healthy now does not mean we will remain that way. I know the Minister is heavily involved with people with disabilities but one does not have to have many dealings with them to see how incredibly difficult some of their lives can be. A small amount of help would go a long way - although it may cost money - in the provision of services by State bodies.

If disabled people were given two hours home help a week they might be able to live on their own. One can imagine the difficulties encountered by disabled people. It is difficult for them to come home from work to start the ironing when a home help could get through a great deal of housework in two hours. The provision of such services appears to be an insurmountable problem which should not be allowed to exist. I am disappointed in this section but I note there will not be a change. I realised there were difficulties but I had hoped the provisions would not become so watered down.

Question put and agreed to.

NEW SECTION.

Ms O'Meara: I move amendment No. 27:

In page 10, before section 5, but in Part I, to insert the following new section:

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

 

This amendment is self-explanatory. It is a sensible suggestion and one which is, unfortunately, necessary. It is also based on clause 2 of Schedule 9 of the UK Northern Ireland Act, 1998. I should point out for Members' benefit that it was the National Consultative Commission on Racism and Inter-Culturalism, a unit of the Department of Justice, Equality and Law Reform based in Mespil Road, which suggested that this proposal be included in the Bill. For that reason, I am sure the Minister will be happy to take it on board.

Miss M. Wallace: The Bill covers nine grounds, with many exemptions and diverse areas of service provision in the private and public sector. It is not clear why this obligation should apply to public authorities only. I cannot see that a scheme submitted only six months after the passing of the Act, irrespective of when it is commenced, could contain useful material on the practical application of the Act, as opposed to broad aspirational statements. Government Departments and other public bodies are committed, through customer service plans, to equality of opportunity.

I would also point to the extensive functions being given to the authority in relation to codes of practice and equality reviews. These functions, and in particular the authority's power to conduct equality reviews of bodies with more than 50 staff, have the potential to prompt practical anti-discrimination policies and measures in public authorities.

Furthermore, there is no comparable requirement on public bodies in matters to which the Employment Equality Act, 1998 applies.

Amendment, by leave, withdrawn.

SECTION 5.

Ms O'Meara: I move amendment No. 28:

In page 10, subsection 2(d)(i), line 40, before "and" to insert the following:

"but does not include information gathered from genetic testing,".

 

This amendment relates to Part II, disposal of goods and provision of services in the insurance sector. The section, as currently drafted, covers a number of areas but we wish to include information gathered from genetic testing. This amendment was originally tabled by Deputy McDaid in his capacity as Fianna Fáil spokesperson on justice during debate of the Bill in the Dáil. It appears to us to be a good idea to include it in the Bill given the advances in the area of genetic testing and engineering. We are constantly being told genetic testing will be a major issue in the early part of this century. It would make a great deal of sense to include information gathered from genetic testing.

Miss M. Wallace: I recognise there are concerns about genetic testing but I do not see the Equal Status Bill as being the appropriate vehicle for resolution of these issues. The Minister for Justice, Equality and Law Reform is not the supervisory authority for the insurance industry and it is not his function to establish standards for the use of genetic data for insurance purposes.

The Irish Insurance Federation is reviewing the issue with a view to establishing best practice, taking account of developments in other countries. A code of practice has been agreed at industry level on the use of genetic tests in life assurance and the industry intends to engage in consultations on this code before the end of the year.

So far as the Equal Status Bill is concerned, material obtained from genetic testing falls to be treated with other data which insurance companies can use to justify different treatment. It has to be data on which it is reasonable to rely and the difference of treatment has to be reasonable having regard to the data or other relevant factors. The Equal Status Bill therefore limits the opportunity to discriminate.

Insurance contracts require the disclosure of all material facts in the application, whether the insurance company asks for it or not. An insurance company could hardly be prevented from taking into account a genetic test which indicated an increased risk. I do not think the Equal Status Bill is the appropriate vehicle for resolving such issues.

Ms O'Meara: I thank the Minister for her response. As she accepts the point in principle, perhaps she will undertake to discuss with her colleague the possibility of incorporating it into the appropriate legislation.

Miss M. Wallace: I did not say I accepted the point in principle. I said I recognise there are concerns in this area and in doing so I will be quite happy to pass the Senator's comments to my colleague.

Amendment, by leave, withdrawn.

Section 5 agreed to.

Mr. Connor: I move amendment No. 29:

In page 11, subsection (1)(c), line 39, after "providing" to insert "or depriving".

 

Section 6(1)(c) refers to "providing accommodation or any services or amenities related to accommodation". The section deals with the disposal of estates or interest in premises or terminating any tenancy or other interest in a premises. We are trying to make the Bill clearer. Discrimination can very easily be manifested in an area like this. The subsection deals with discrimination in the providing of accommodation but one can also have discrimination in the depriving of accommodation. Not to accept this amendment might result in there being an 'out' for somebody. Insertion of the word would ensure greater certainty in this section.

Miss M. Wallace: This issue was dealt with in the Dáil. Page 11, 6(1)(a) covers the point raised by Senator Connor.

Mr. Connor: Perhaps it does, perhaps it does not.

Miss M. Wallace: That point was raised by the Opposition by way of amendment in the Dáil. The section was subsequently redrafted to cover those points and was accepted by the Opposition.

Mr. Connor: I think we can do a better job if we include the words "or depriving". It will not take anything from the Bill but will in fact improve its effectiveness. I have no doubt that the Minister - and everybody in this House - wants this legislation to be effective in the fight against discrimination. I cannot understand why the Minister cannot go a step further towards strengthening the Bill by accepting this amendment.

Miss M. Wallace: In the interests of being helpful, we will look at this again for Report Stage. Is that all right?

Mr. Connor: Yes, I welcome the Minister's helpfulness.

Amendment, by leave, withdrawn.

Amendment No. 30 not moved.

Mr. Connor: I move amendment No. 31:

In page 12, between lines 44 and 45, to insert the following new subsection:

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

'(1) This section applies to members of the "Traveller community" which is defined for these purposes as the community of people commonly so called who are identified both by themselves and by others as people with a shared history, culture and traditions including historically a nomadic way of life on the island of Ireland.'.".

 

My amendment relates to the issue of accommodation. It may seem unusual to introduce it at this point but we need to define Traveller culture and identity in this Bill. That has not been done.

As the Minister of State will know, Senator O'Meara and I are members of the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights, the committee that tracks the

Department of Justice, Equality and Law Reform. In relation to this Bill we took many submissions from various sources, one of which was Pavee Point. That organisation pointed out to us that there was a need to recognise Traveller culture and identity in this Bill. It also pointed out that the task force on the Traveller community recommended on page 85 of its report to the Minister that the equal status legislation should define Travellers in a manner that acknowledges their distinct culture and identity. Pavee Point makes the following point in their submission:

Although this Bill specifically includes Travellers the minimalist nature of the Bill does not ensure that Traveller culture and identity will be taken into account in the design and delivery of services. Such an inclusion is important if the Bill is to appropriately address the current situation.

 

Housing is always controversial. Anyone who is a member of a local authority will know that there is always controversy over Traveller accommodation and housing. People from the settled community will often make uninformed complaints about cultural habits of travellers. The Travellers do not have the same settled pattern of living as people from the settled community. It is important that this is stated in the Bill. It is appropriate for the distinct Traveller culture and identity to be recognised and mentioned in the sections that deal with housing and accommodation. I request the Minister of State to include my amendment which states:

the "Traveller community" which is defined for these purposes as the community of people commonly so called who are identified both by themselves and by others as people with a shared history, culture and traditions including historically a nomadic way of life on the island of Ireland.

 

It would not be harmful to include my definition of the Traveller traditions, history and culture. It is important. So much of the ill informed comment and action in regard to Traveller accommodation comes from a total misunderstanding of their history and culture.

Ireland has a very homogeneous society and there is a similar approach to the refugee and asylum seeker issue. There is a resistance to different cultural practices. To some extent this is understandable because of our history as an island nation. We need to continually educate the public about different cultures and traditions and their legal right to exist and co-exist with all the other traditions and cultures to be found in any population. The world is changing rapidly and there is a great intercultural mix everywhere. Pavee Point and the National Consultative Committee on Racism and Interculturalism, which was set up under the auspices of the Department of Justice, Equality and Law Reform, made the same point to the committee. I hope the Minister of State will accept my amendment given the good recommendations that go with it.

Miss M. Wallace: The Senator will be happy to know that I have good news on this issue, which is that we dealt with it during the Dáil debate. Section 2 of the Bill includes the definition:

"Traveller community" means the community of people who are commonly called Travellers and who are identified (both by themselves and others) as people with a shared history, culture and traditions, including, historically, a nomadic way of life on the island of Ireland.

 

This wording is virtually identical to that suggested by the Senator and it is based on the Race Relations Order in Northern Ireland and it is now included in section 2.

Mr. Connor: I thank the Minister of State for informing me of that. I did not see it. Nevertheless, we might refer to that description in section 5 and insert the words "as in section 2".

Miss M. Wallace: That would be most unusual.

Mr. Connor: There is a need to continually state it. It is appropriate for it to be re-stated, even only as a reminder, when dealing with Traveller accommodation, which is where ill informed comment and discrimination manifests itself against the Traveller community. That has been my experience as someone who lives in a rural community and as a member of a local authority housing committee. It is at that level that one comes up against the problem of Traveller accommodation and housing and the tensions that will give rise to in the settled community. People are not well informed about Traveller history and culture and their need to practice a nomadic way of life. This is an appropriate point in the Bill to reiterate the Traveller culture and identity.

I beg pardon for my lack of information and for not spotting that reference in section 2. I remember that Pavee Point and the National Consultative Committee on Racism and Interculturalism made a good point about it when they met the sub-committee.

Miss M. Wallace: If I were to start putting that in then I would have to insert it in every section. Otherwise it would seen as being more important with regard to accommodation but less important with regard to access to clubs, goods, services and education establishments. It would be better to stick with the existing customs and practices. It is included in the definitions at the start of the legislation.

The definition is repeated in section 48(a)(ii), page 34, because we want to make sure that it applies to employment. In that section we are also reminded about the Employment Equality Act, 1998, and we made sure that the same definition is applied. This is the first time that a definition of the Traveller community has been inserted in legislation and I warmly welcome it.

Amendment, by leave, withdrawn.

Section 6 agreed to.

SECTION 7.

Ms O'Meara: I move amendment No. 32:

In page 12, subsection (1), line 46, to delete "section 49" and substitute "Part VII".

 

This is a technical amendment.

Miss M. Wallace: I propose to accept of this drafting amendment.

Amendment agreed to.

Acting Chairman: Amendments Nos. 33 and 34 are related and may be taken together by agreement.

Mr. Connor: I move amendment No. 33:

In page 13, subsection (3), between lines 37 and 38, to insert the following new clause:

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

This amendment is a rehash of the arguments we made about persons with or without refugee status. I want to insert the phrase "or persons with refugee status" after the term "Union".

We know that persons within the European Union have the same protection that we have under our domestic laws and we are protected by the domestic laws of any other member state. Once a refugee has achieved refugee status in this country the Minister has acknowledged they are entitled to the full protection of the law and to any welfare the State provides. It is important to state it because of the times in which we live. If there is discrimination in this country it centres around refugees and asylum seekers. No one can send a more powerful message to the public than the Government, particularly at a time when we are introducing such seminal legislation.

Miss M. Wallace: I hope the changes made in the other House will satisfy Senator Connor's requirements. The changes were made at the opening words of paragraph (d). These were inserted on Report Stage in the other House. Persons who are granted refugee status here are entitled to the same rights to education, health, housing, etc. as Irish citizens. Section 3 of the Refugee Act, 1996, although not yet in force, states this and it is an administrative practice. The opening words of paragraph (d) provide that the exemptions for differences of treatment for EU nationals at section 7(3)(d) of the Equal Status Bill and section 12 (7) of the Employment Equality Act are without prejudice to section 3 of the Refugee Act. I expect the Refugee Act will be brought into effect in the coming months. I trust that in the light of this explanation the Senator will withdraw his amendment.

Amendment, by leave, withdrawn.

Amendment No. 34 not moved.

An Cathaoirleach: Amendments Nos. 35 and 82 are related and may be discussed together.

Government amendment No. 35:

In page 14, subsection (3)(d)(ii)(II), line 9, to delete "State." and substitute:

"State, or

(e) where the establishment is a university or other third-level institution, it provides different treatment in the allocation of places at the establishment to mature students (within the meaning of the Local Authorities (Higher Education Grants) Acts, 1968 to 1992).".

 

Miss M. Wallace: I propose to add a new paragraph at section 7(3)(e) which indicates that where the educational establishment is a university or other third level institution it is not discrimination to provide different treatment at that establishment to mature students. The Local Authorities (Higher Education Grants) Act, 1992, provides a definition of a mature student in the context of the administration by local authorities of the higher education grants scheme. A mature student is someone of 23 years of age or over in the year of entrance to third level.

I brought forward this amendment because concerns were expressed to me that the Equal Status Bill took no account of existing admission policies of universities which afford preferential treatment when admitting mature students. The Department of Education and Science has informed my Department that the broad policy of facilitating and encouraging admission to our universities is central to the State's approach to adult education in that it embodies the notion of second chance education. However, an imbalance exists whereby many people who have left the education system did not have the same educational opportunities which are available to school leavers today. This can be due to previous low levels of third level provision or issues of social or economic disadvantage. Adult education provision is seen as a way of addressing such inequalities of opportunities.

The case made for the exemption in the Equal Status Bill of the universities' admission policies for mature students is persuasive. Accordingly, I made an appropriate amendment to ensure that continuance of these policies is not overridden by the Equal Status Bill. I am also making a similar change in the provisions of the Employment Equality Act dealing with vocational training in so far as they relate to third level education.

Amendment agreed to.

An Cathaoirleach: We will take amendment No. 37 next because amendment No. 36 is not in the proper sequence. It should be addressed to subsection (4)(b), line 17, and consequently comes after amendment No. 37, as amendment No. 37 is the wider amendment. Amendments Nos. 36 and 37 are related and both may be discussed together.

Mr. Connor: I move amendment No. 37:

In page 14, subsection (4), lines 17 to 21, to delete paragraph (b).

 

Miss M. Wallace: Section 7(4)(b) provides that educational establishments are not obliged to admit students with a disability if so doing would make impossible or have a seriously detrimental effect on the provisions of their services to other students. This exemption was included following legal advice about the open ended nature of the obligation under the 1997 Bill which would negate other people's constitutional right to education. There was a balance to be struck in this regard. I stress that the wording of this subsection was formulated in consultation with the Department of Education and Science and involves a strict test. Since the school will have to persuade the Director of Equality Investigations that it meets the test in section 7(4)(b), I do not regard it as necessary to qualify this section by reference to objective criteria. I cannot accept the amendment.

Mr. Connor: If the provision of services or facilities for a student with a disability affects the services or educational facilities available to other students, the institution can opt out. That should not be allowed to happen. The State provides almost 100% of the funding needed for third level education, including the upkeep of buildings, etc. If the provision of proper services or educational facilities for a person or persons with a disability in a university faculty causes disadvantages for other students because of a lack of resources, it is not fair or just that the latter should win. We should use part of the £500 million we generated in the first quarter of this year in our Exchequer returns, which was more than we anticipated on 1 January, to ensure that such discrimination does not take place.

We need a new disability Bill to protect the interests of people with a disability. We have been promised that Bill for a long time but we have not seen it yet. This Bill which is supposed to outlaw discrimination allows such a concession to educational establishments. That is not fair or just. I ask the Minister to accept my amendment.

Miss M. Wallace: I have come across cases where the parents believed the right place for their child to be educated was in the school on their road. However, this might not have been the right place for the child. Sometimes if a child is diagnosed with a particular disability at four years of age, it takes time for the parents to deal with the fact that their child's educational needs may be different from those of their other children. If the mainstream option is the best option for the child, that is what should be available. On the other hand, if the special school is the best option for the child, perhaps that is what should be available once supports are provided in the appropriate places.

It is not correct to say this is the right place for the child regardless of the circumstances. One must apply the strict test in such cases. I have come across many cases where mainstream schools were slow to accept a child with a disability from the parish and no test was applied. Parents then fell out with the school authorities and the usual local debates took place. I have been involved in many of them on behalf of children with disabilities.

This, in a way, strengthens the hand of the family with a child with a disability. If the child is refused admission to the primary school, the school must justify that to the Director of Equality Investigations under the strict test. The exclusion of a person by a school on foot of this provision would meet the strict test, namely, that the person's disability must make it impossible or have a seriously detrimental effect on the school's provision of its services to other students.

I underline the term "strict test". We have in mind a child whose disability is such that his or her admission would seriously disrupt or negate the education of the pupils. Also, it might not be in the best interest of the child to be in that environment. It is not intended to cover situations where it would be inconvenient for the school to have a pupil with a disability. In fact, it would catch such schools because if the school felt it was inconvenient for it to put a ramp outside the front door and, therefore, inconvenient for it to take in a child with a wheelchair, regardless of their educational ability and right to come into the mainstream school, it would not pass the strict test.

The perceptions and attitudes of other pupils or their parents are not relevant. This has applied in the past. We are not talking about inconvenience, perceptions or attitudes. Those types of cases would not pass the strict test. The criteria are extremely strict and the exemption can be invoked only in limited circumstances. Where a school has availed of this provision, it will be open to the person to seek redress under the Equal Status Act by submitting the case to the Director of Equality Investigations. The school would have to provide satisfactory evidence to the director that there was a basis under section 4 for its decision not to admit the student. In other words, where an educational establishment seeks to avail of such an exemption, it will be a matter for that establishment and not the complainant to show that the exemption applies.

Looking at it in the round, this is an extra benefit to the student with a disability who has been refused entry in the wrong to the mainstream school. In the past, if one did not win the fight, one went elsewhere. Now if one does not win the fight, one can take one's case to the Director of Equality Investigations. It is critical we identify the fact that there is an extremely strict test under this section. Looking at it in the round, it is an additional benefit to the student with a disability accessing mainstream education.

Amendment, by leave, withdrawn.

Amendment No. 36 not moved.

Section 7, as amended, agreed to.

NEW SECTION.

An Cathaoirleach: Amendment No. 38 in the name of Senator O'Meara proposes the insertion of a new section and amendment No. 39 is related. Amendments No. 38 and 39 to be discussed together by agreement.

Ms O'Meara: I move amendment No. 38:

In page 14, before section 8, to insert the following new section:

"8. - The partners or members or any of them of a business or of its board or governing authority whether incorporated or not that is carried out by individuals who are and share in the capital profits of a business as its partners or members ('a firm') shall not discriminate in relation to -

(a) the admission of a person as a partner or member of the firm or conditions applicable to a partner or member of the firm,

(b) the status of a partner or member of the firm in relation to the work done by the firm or the sharing in the capital and profits of the firm, or

(c) the expulsion of a partner or member from the firm or any other sanction against the partner or member.".

 

Amendment No. 38 seeks to insert a new section but, in fact, it seeks to restore a section originally in the 1997 version of the Bill. It relates to self-employed firms, such as accountants and solicitors. One would be familiar with the type of firm about which I am thinking which is defined in the amendment. It is clear from the text of the amendment that these firms of self-employed are not excluded from the operations of the Bill. In other words, those firms cannot discriminate in relation to the admission of a person, the status of a partner or the expulsion of a partner or member.

Not only is it an important and valuable section to include in the Equal Status Bill, it is required by the Government in order to comply with the 1996 EU directive on equality in self-employed activity. That was one of the main reasons this section was originally drafted and included in the 1997 legislation. The non-inclusion of this section in this Bill creates a problem in that it would appear that members and partners in these firms are not covered by the terms of the legislation.

Mr. Connor: I cannot add anything to what Senator O'Meara said in favour of acceptance of this amendment. My amendment is similar in wording and has the same intent. Senator O'Meara made the valid point that it was included in the 1997 Bill. It improves the quality of the Bill in all areas of activity so that this sector is clearly included. There was a need for it when the Bill was drawn up by Mr. Mervyn Taylor in 1996 and 1997. I take it the Minister will say it had to be deleted because again there is a level of uncertainty in relation to the Supreme Court decision on the Employment Equality Act. I do not accept that.

Miss M. Wallace: The Bill before us, unlike the 1997 Bill, does not contain any provision to deal with discrimination by firms, including firms of partners, against members or prospective members of such firms. As Senators will be aware, we obtained extensive legal advice on this measure following the Supreme Court decision in 1997. Our advice was that these provisions of the 1997 Bill were anomalous vis-à-vis the provisions of the Employment Equality Act, 1998, presented constitutional difficulties and were not required to transpose the EU directive on self-employed activity.

I am not ruling out a prohibition on discrimination in firms and partnerships at some future time by whatever statutory means. Senators will, however, recognise the Equal Status Bill is essentially about the provision of goods and services and that it is a complex measure with a troubled history. Given the complexities involved, I do not intend to provide for firms and partnerships in the present Bill and cannot, therefore, accept the amendment.

It might be worth Senators' while to note that perhaps we should look at this issue under the review of the Employment Equality Act because it is an employment issue as distinct from a goods and services one. It does not fit here. There are checks and balances in both pieces of legislation in terms of checking against age, ability to work and the other checks in the Employment Equality Act which do not necessarily apply to goods and services. It is an employment issue.

It was included in this legislation originally because it was thought at that stage there was a need for it to transpose the EU directive on self-employed activity. It was subsequently discovered that was not necessary. In addition, it presents constitutional difficulties and difficulties here. It is not in the right place and there is no need to deal with it here in regard to goods and services as it is an employment issue.

Ms O'Meara: I thank the Minister for that clarification. Indeed, I would largely accept her point that it is possibly even more appropriate to the Employment Equality Act. Once again the Minister appears to be using the Supreme Court judgment as a blanket to cover more areas than are necessary. We are left with a situation where this area is not covered in this or in the other legislation. I imagine self-employed firms constitute a considerable area of employment in the service area of the economy but those firms are not covered by anti-discrimination legislation, whether in the Equal Status Bill or in the Employment Equality Act.

Miss M. Wallace: We are discussing this issue today because it was included in the original 1997 Bill but it was wrongly included in it. It is equally wrong for us to talk about it today because we are talking about it under the wrong legislation. We should be talking about it under the employment legislation. We should bear in mind that the Employment Equality Act was passed in June 1998. This in an employment issue and there is no point in saying that because it was here in the past we should keep going. We now know that it was in the wrong place and there is no point in causing more problems. We should stop and do it right.

Amendment, by leave, withdrawn.

Amendment No. 39 not moved.

SECTION 8.

An Cathaoirleach: Amendment No. 40 is a Government amendment. If amendment No. 40 is accepted amendment No. 41 cannot be moved. Amendments Nos. 48, 49 and 55 are related and may be taken together.

Government amendment No. 40:

In page 14, lines 22 to 24, to delete subsection (1) and substitute the following new subsection:

"(1) In this section-

'certificate of registration', in relation to a club, means the certificate of registration of the club under the Registration of Clubs Acts, 1904 to 1999;

'club' means a club that has applied for or holds a certificate of registration.".

Miss M. Wallace: This amendment seeks to examine the issue where clubs lose their licences for 12 months. The amendment stipulates that a club will lose its licence for 30 days on the first offence of discrimination, following which the situation will be examined. This will give the club an opportunity to put its house in order in terms of discrimination. Many clubs looked seriously at this issue when the last Equal Status Bill was rejected by the Supreme Court. Clubs sat back a little, thinking they would not have to consider this issue again. However, they will now have to consider the issue seriously under this legislation. In the meantime, some clubs have come into line but many clubs are still out of line. Losing a licence is a significant sanction and we are making it clear that clubs will lose their licence for 30 days for a first offence and for a longer period if there is a second offence.

Ms O'Meara: The Bill which came to the House from the Dáil proposed that a club which did not comply with the legalisation would lose its licence. The Minister of State is now proposing that a club will lose its licence for only 30 days and for a longer period if it continues to offend. A Chathaoirligh, are we reviewing progress on the Bill as agreed on the Order of Business?

Mr. T. Fitzgerald: There has been progress and there is Opposition agreement to adjourn Committee Stage of the Bill at 6 p.m. and resume tomorrow at 10.30 a.m.

An Cathaoirleach: Is that agreed? Agreed.

Ms O'Meara: Will the Minister of State clarify the change proposed by this amendment?

Miss M. Wallace: The difference is that a club will lose its licence for up to 30 days for a first offence and will lose its licence for a second offence until it complies with the legislation.

Ms O'Meara: Will a club lose its licence for a longer period of time or permanently? Is the Minister of State watering down the provision which came to the House from the Dáil? Am I correct in saying that the penalty for non-compliance was that a club would lose its licence permanently whereas this amendment proposes that a club will lose its licence for 30 days?

Miss M. Wallace: The Senator is correct except that this amendment does not water down the Bill. It is in no one's interest for clubs to lose their licences. It is in our interests to stop discrimination in clubs. We are proposing this amendment as a mechanism which will give clubs an opportunity to comply with the legislation within 30 days. The Bill is not about taking away licences, it is about stopping discrimination in golf clubs.

This amendment does not water down the Bill but gives clubs an opportunity to change their rules and get themselves in order within the 30 days so that they do not discriminate as defined in the legislation. It is a clear change from the position as agreed by the Dáil.

Ms O'Meara: I would accept the Minister of State's view that this does not water down the Bill if the legislation had been recently published. However, the Bill has been in gestation in one form or another for a number of years and has been widely written about in the media. The fact that clubs would suffer this penalty if they did not comply with the legislation has received much publicity and they do not need 30 days to put their house in order. The majority of clubs have already moved to comply with the legislation before it is enacted and that is as it should be. However, we now seem to be giving them an out and that is unnecessary. What is the rationale behind this amendment?

Mr. O'Donovan: The Minister of State is proposing a sensible and practical solution. It would be unfair and draconian if a club lost its licence permanently or for a year. A sufficient deterrent would be if clubs were closed down or lost their licence for 30 days. This is as it should be as this issue has been in the public arena for the past six or seven years and many clubs have put their house in order in anticipation of this legislation. I support and welcome the Minister of State's amendments in this regard. It is more than adequate to penalise a club for 30 days. Permanent loss of a licence would be using a sledgehammer to drive a thumb tack when a lesser penalty would be sufficient.

The 30 day period is fair and adequate and I support this amendment which improves the Bill. The Minister of State rightly said that the purpose of the legislation is not to deregister clubs but to prevent discrimination and we should not lose sight of that objective.

Miss M. Wallace: The ultimate sanction is still in place in that clubs will lose their licence for a second offence. We have met the golfing organisations since this Bill was passed by the Dáil. We are always willing to review, amend, change and be helpful. I hope this amendment will be seen by all involved in golf as an addition and a benefit as it adds to the warning system in that clubs will lose their licence for 30 days, which will give them an opportunity to get their house in order.

Every member of a golf club will be aware of the fact that they cannot buy a drink during the 30 day period and the penalty will be the subject of much conversation. It also gives clubs the chance to get their licence back when they stop the discrimination. We are not interested in removing licences from golf clubs, we are interested in removing discrimination. The amendment adds an additional warning which will be beneficial as it will shake golf clubs into action, knowing they have 30 days to put their house in order.

Amendment agreed to.

Amendment No. 41 not moved.

Progress reported; Committee to sit again.