Kathleen Lynch (Cork North Central, Labour) | Oireachtas source

The Government opposes this Bill on a number of grounds. First, the Bill proposes that there would be very resource-intensive obligations on the full range of public bodies to prepare and publish equality impact assessments of their work for approval by the Equality Authority. In the Bill to establish the new Irish Human Rights and Equality Commission, IHREC, which we are working on and hope to publish before too long, we are taking a different approach to ensuring that public bodies place equality and human rights at the heart of what they do. Instead of a formalistic box-ticking exercise, with an enormous administrative overhead, we are imposing a positive duty on public bodies to look at the human rights and equality issues they face and address those in their strategic plans and annual reports. Instead of agreeing paper schemes and monitoring, the role of the new IHREC will be the much more active one of providing support and facilitation. I believe this will prove to be a much more positive and useful approach.

Given the proposal to create this elaborate new proofing mechanism, it is particularly ironic that the Bill is not accompanied by an explanatory memorandum or impact assessment. The Bill proposes to extend the discrimination grounds in the Equal Status Acts, which deal with provision of goods and services, but not in the Employment Equality Acts, which cover employment, to five new grounds: trade union membership, socio-economic background, native Irish language speaker, criminal conviction, "qualifying prisoner", that is, former IRA prisoners released early under the Good Friday Agreement, and living in a rural area.

It is not clear if the omission of the Employment Equality Acts is deliberate or a drafting error but the Bill, as published, does not apply to employment issues. As I said, it is notable, particularly given the impact assessment obligations the Bill proposes to create, that the Bill is not accompanied by any assessment of the scope of these new grounds or what might be the impact of incorporating them, without any qualifications or exceptions, in equality legislation. It is the Deputy's job and not my job to undertake such an assessment, but I am setting out on the record some of the most obvious questions and comments that arise and that need to be assessed in an impact assessment of this Bill.

On the trade union ground, which we heard about from the previous speaker, it is not clear that circumstances in regard to the provision of goods and services in which discrimination on this ground would actually arise. Trade union members are not distinguishable from the general population, and the Bill does not seek to amend the Employment Equality Acts in this regard. The recognition of trade unions in the workplace and the question of protecting persons who join or want to join a trade union from victimisation is a separate issue, which is appropriately addressed as an industrial relations issue rather than under equality legislation.

On the socio-economic background,no guidance is offered as to what this means, and whether and to what extent it is linked to income levels and ability to pay or assessment of risk based on income levels, for example, in regard to provision of financial services, including loans.

On the native Irish language speaker ground, itis not clear why this would be necessary, given the constitutional status of the Irish language. The provision of public services to Irish speakers is provided for via the Official Languages Act. The Private Members' Bill refers to discrimination and does not create a general obligation to provide goods and services in Irish, but perhaps that is what is intended. Why a distinction is made between native speakers, who are approximately 2% of the population, and competent speakers who are not native speakers, who are a bigger proportion of the population at between 8% and 10%, is also unclear.

On the criminal conviction ground, as the Bill relates to provision of goods and services only, it is not clear what this ground is intended to achieve in practice. On the face of it a criminal conviction for fraud or theft would appear to be directly relevant to assessment of risk in the case of certain insurance and other financial services. If one were looking at the employment aspects these and other criminal convictions, for example, sexual offences, would also be directly relevant. However, the Bill chooses not to cover employment issues. Equality legislation seeks to eliminate unfair or prejudicial discrimination based on a person's inherent characteristics, for example, gender, race, age, rather than affecting rational assessments of risk based on a person's previous actions. The question of wiping the record of criminal convictions is not one that can be addressed by a simple one-line prohibition of discrimination but requires a more nuanced approach via spent convictions legislation that allows differentiation as between different types of criminal convictions, adult versus juvenile convictions and so on, different types of employment and other risk assessment situations. The Criminal Justice (Spent Convictions) Bill is currently awaiting Report Stage in the Dáil and is expected to be enacted in the autumn.

Regarding qualifying prisoners, these are in law a subset of the previous category but the rationale for the Sinn Féin Bill treating them separately is an obvious political one.

The question of taxi licences and licences from the Private Security Authority has been raised. The Bill may be an attempt to compel the relevant authorities to grant licenses in such cases irrespective of genuine concerns about suitability but if that is the case it would be, even if this Bill were enacted, completely ineffective as it demonstrates a lack of understanding of how the Equal Status Acts operate. The Equal Status Acts apply to the provision of goods and services, other than public services that are regulated by other legislation. The equal status legislation - and I draw the Deputy's attention to section 14 of the Equal Status Act 2000 - is without prejudice to the provisions of other statutory provisions. Essentially, the 2000 Act does not apply to an issue which is governed by separate legislation.

Regarding the rural area ground, the intent or envisaged impact of that is not clear.

An obvious potential impact is in respect of the delivery charges by providers of goods, including household goods. It is common practice not to charge for delivery to locations in the immediate vicinity of a shop but to charge for those which are longer distances away or to limit deliveries to an immediate catchment area. This could be construed as discrimination against rural dwellers. Another example is that providers of cable television and other telecommunications services may not provide services outside a defined area or may not provide a service of equal quality to sparsely populated areas. Under the proposed new provision, this could again be construed as discrimination against rural dwellers. It is not obvious that the real difficulties in providing high quality broadband services, for example, to rural areas can be addressed by a simple prohibition on discrimination or that the increased provision of such services by market providers would be positively encouraged by an outbreak of litigation before the Equality Tribunal.

I wish to make a final point. The unrealistic ambition which underpins the Bill is also indicated by the inclusion of the Dáil, the Seanad and the Government in the definition of "public body" and of the annual budget in the definition of "measure" - that is, a measure whose impact must be assessed as laid out in a scheme which must be approved by the Equality Authority - respectively. Budgetary decisions are for the democratically elected Government of the day to make and for the national Parliament to approve. They are not subject to the approval, in terms of process or content of any State agency's board. As a result of its membership of the European Union and the eurozone and its accession to the fiscal stability treaty, the State has legally binding budgetary obligations in respect of the deficits it can run and to the overall level of general government expenditure it can undertake. Within the parameters required by considerations of prudence and Ireland's EU obligations, budgetary decisions as between levels of expenditure and taxation - and as between retention of income by those who earn it versus redistribution to those in need via the social welfare system and other measures - are also for the democratically elected Government of the day to make and for the national Parliament to approve.

The reality is that resources are limited and additional expenditure demands or costs arising - for whatever reason - will have to be paid for through expenditure reductions elsewhere or through the raising of additional revenue. Nothing is this Bill can change that reality or be of any help to the Government in making the difficult decisions its members have been elected to make on behalf of the people as we work to restore the country's economic sovereignty. The Government will shortly introduce, as promised, legislation to establish the new Irish human rights and equality commission. The provisions of the legislation in this regard will include a workable, positive duty on public bodies to have regard to equality and human rights issues in their work. This will be in line with the commitment in the Government's Programme for National Recovery 2011-2016 which states, "'We will require all public bodies to take due note of equality and human rights in carrying out their functions". We are also working on legislation to consolidate and streamline the various Acts which deal with family leave, including those relating to maternity protection, parental leave and carer's leave. When these two projects are taken through to enactment, we will commence a general review of the substantive equality legislation. This will include considering whether there is a case for creation of new grounds, as well as examining the scope to simplify and streamline the two main sets of legislation relating to equal status and employment protection.

In the meantime, the Bill before the House is confused and ineffective. I am most surprised that Sinn Féin, a party which I consider to probably have the best resourced researchers in this Parliament, managed to get it so badly wrong.

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