David Stanton (Cork East, Fine Gael) | Oireachtas source

We all share the common objective of wanting to protect all persons living in Ireland from discrimination in their daily lives. As the House is aware, we have robust protections in place in the Employment Equality Acts 1998 to 2015 and the Equal Status Acts 2000 to 2015 to protect equality and to combat discrimination in employment and in access to goods and services. If we are to amend these important pieces of legislation, we need to ensure that the amendments are precise, appropriate and targeted at addressing a particular need.

This Equality (Miscellaneous Provisions) Bill 2017, tabled by Deputy O’Callaghan, proposes to extend the discrimination grounds to include a new ground, that of disadvantaged socioeconomic status. The Government agrees with the principle of what the Deputy is attempting to achieve with this Bill. Let us be clear on that. We agree with the principle. Like the Deputy, we do not wish to see anybody denied access to employment or to goods and services because that person lives at a particular address or belongs to a particular type of family. The Government is also conscious of its international obligations in this area. There are, however, flaws in this present Bill which are so serious as to prevent Government from supporting it.

It is a shame that the Deputy did not choose to submit this Bill to pre-legislative scrutiny prior to publication, as all Government Bills must be submitted. Committees have done fantastic work in this area. I would have been delighted had that happened because we all would have been advised by the committee's deliberations and all Deputies could have looked at the Bill in light of them. Government legislation has to go through this process but Private Members' Bills do not. That is a flaw in our system. I have said it before and I am saying it again. It is a weakness in our system. If Private Members' Bills are to be treated seriously, they should also go through pre-legislative scrutiny. Many of the flaws that I will identify could have been addressed through that process and a more nuanced Bill presented to this House as a consequence.

A general principle is that statute law should be certain, clear and precise. In a Bill such as this one, one can clearly see that certainty and precision are essential so that the law can be easily interpreted by the person experiencing discrimination, by the courts and by employers, service providers and businesses. Unfortunately, this Bill is characterised by ambiguities and subjectivity. The Deputies who have already spoken have said that this is an area in which it is very difficult to work. Unless the legislation is very clear, it will be almost impossible to work. This Bill, if enacted, would introduce an ambiguous and wide-ranging definition of disadvantaged socioeconomic status into the Equality Acts. The definition would encompass six separate elements - poverty, level or source of income, homelessness, place of residence and family background.

As proposed, the definition of disadvantaged socioeconomic status could give rise to differing interpretations depending on the context. As such, it differs from the existing equality grounds which set out clear characteristics that a person either fulfils or does not fulfil. On the civil status ground, for instance, a person will immediately know if she or he is single, married, divorced, separated, widowed, a civil partner or a former civil partner. Equally, on the Traveller community ground, a person is either a Traveller or she or he is not. That is not subject to interpretation. It is clear. The strength of the current clear definitions in the equality legislation is two-fold. A person at risk of discrimination can immediately know whether or not the protected grounds apply to his or her situation. Equally, and just as importantly, employers or providers of goods and services can know the precise situations which constitute prohibited discrimination. They have to be able to know clearly what differences of treatment are permitted and what are not. Employers or providers of goods and services can then put systems and policies in place to guard against discrimination by themselves or by their staff.

However, the elements included in the proposed definition of disadvantaged socioeconomic status generate more questions than answers. I propose to go through some of the questions which, in my view, arise from the definition proposed in this Bill. Taking the first element of the definition, namely, poverty, how would a person be defined as being in poverty? Would it be a person in consistent poverty or someone in relative poverty? The Bill is not clear on that. That is very serious. Turning to the second element, that of level of income, how would disadvantaged income levels be defined? Would it be relative to a specific income threshold? What about someone who is asset rich but income poor? Would it be relative to the income of others? Would it extend to include any person denied a means-tested benefit because he or she was above a specific income threshold? Where is the line drawn? It is not clear at all from the legislation.

Similar questions arise in respect of source of income. What constitutes disadvantage in this context? Will everyone on a social welfare payment be termed disadvantaged? Will someone working in a specific type of work be considered disadvantaged? Could the definition include a criminal who gained income through criminality and whose source of income was dubious? We have had those debates here before. The place of residence aspect of the definition also raises questions. Would it be restricted to someone from an area of high income disadvantage? Could a poor person living in a wealthy area also qualify? Would it extend to someone living in a particular type of residence, such as an institution? Could a prisoner be eligible to take a case for discrimination arising from his or her "place of residence"? Could the definition encompass someone living in a rural area who was not poor but who had more limited access to employment opportunities? Could a person living in a rural area take a claim if he or she had poorer access to postal or broadband services, for instance, than an equivalent person living in Dublin? Turning to family background, this element seems particularly ambiguous. Who is this element intended to encompass? Would it include a person in a lone parent household, a person from a Traveller family, a person from an ethnic minority family, a person whose parent was not an Irish national, or an adopted person? What does it mean?

These questions need to be answered so that we can be clear as to the situations likely to be encompassed by this equality ground. As it stands, the definition's ambiguity could expand the number of potential cases that might be taken under the equality legislation exponentially, particularly as the Equality Acts encompass indirect as well as direct discrimination.

The ambiguous definition proposed in this Bill could lead to unintended consequences. We could see a situation in which individuals with a good education or training and easy access to finances could take claims based on the level of income or place of residence elements of the definition. Wealthier individuals could challenge their exclusion from means-tested benefits citing disadvantage on the basis of level of income.

Such individuals could potentially force State resources to be redirected towards addressing their circumstances rather than targeting those resources at persons in greatest need. It might be difficult, in this context, for public service providers to set criteria restricting the provision of non-statutory services where resources were limited and certain groups needed to be prioritised. The provisions in this Bill also carry the risk of interfering with ministerial discretion in allocating funding to specific areas.

The Government has taken action in a more targeted manner to address instances of discrimination where it believed there was a clear need to do so. The Government took action to prohibit discrimination in the letting of residential accommodation on the basis that a person is or is not in receipt of rent supplement or a housing assistance payment. The Equality (Miscellaneous Provisions) Act 2015 amended sections 2 and 6 of the Equal Status Act 2000 so a person could not be discriminated against when renting because he or she is getting rent supplement, the housing assistance payment or any other social welfare payment. This means landlords can no longer state, when advertising accommodation, that rent supplement or the housing assistance payment is not accepted, and they cannot refuse to rent accommodation to a person because he or she is in receipt of a social welfare payment.

The Government's view is that the case for the amendment of the equality legislation must be based on clear evidence. At present, we do not have objective evidence that individuals are actually experiencing discrimination because of their address or background. We are relying on anecdotal evidence, which may provide a very partial picture. In this regard, Deputy O'Callaghan told us two stories of people he met. That is fair enough but we need to know the exact extent of any such discrimination. We also need to isolate the potential discrimination from any other factors that might affect the person's employment status. A person might find it difficult to get employment because she or he has poorer educational qualifications. An individual might find it harder to get employment in a rural area with more limited job opportunities. If we are to amend the equality legislation, we need to be sure that discrimination is what we need to tackle rather than other factors, such as training needs or educational disadvantage.

I recognise that this issue is inherently complex, as the Deputies have said, and that it is very difficult to arrive at a precise definition. As Deputies will be aware, a report on this question was undertaken by UCC in 2004. The report, Extending the Scope of Employment Equality Legislation: Comparative Perspectives on the Prohibited Grounds of Discrimination, which I read recently, found that discrimination on the basis of socio-economic status is not necessarily revealed by distinctive external features. It also found that there is extreme difficulty in providing proof of discrimination, particularly where the burden of proof lies with the victim of discrimination.

Before proceeding with a flawed Bill, we need to examine this issue in more detail so we can proceed on the basis of a solid evidence base and a targeted definition of need. Accordingly, the Government proposes to commission research to establish the extent and prevalence of discrimination on the basis of place of residence or related factors. Such research would also have the purpose of establishing whether such discrimination was occurring in regard to employment or access to goods and services, or both. It would establish whether a legislative response was needed and, if so, which Acts needed to be amended. The researchers would be also asked to devise a more precise formulation for the additional equality ground if it were decided that this were needed. In taking this process forward, the Government would seek to work with appropriate State bodies and agencies, such as the Irish Human Rights and Equality Commission. The Equality & Rights Alliance has also done some useful preliminary research in this area, as outlined in its report, An Analysis of the Introduction of Socio-Economic Status as a Discrimination Ground. I am sure most Deputies present have read it. My objective is to set the research process in motion imminently. The immediate priority will be to draft appropriate terms of reference.

As I said at the outset, I share the concern that we should seek to address barriers that create disadvantage for individuals in our society and prevent them from realising their potential. We can work together to devise appropriate solutions to this challenge but this Bill's ambiguity is such that, however laudable its intentions, it does not provide an appropriate way forward. Accordingly, the Government cannot support it. We want to carry out research on this and share and debate it with colleagues in the House, and we then want to proceed with a fact-based agenda. I recommend against accepting this Bill.

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