Feargal Quinn (Independent)

I welcome the Minister of State, Deputy O'Dea, to the House and I also welcome this move to update our equality legislation. However, I want to signal a note of protest regarding the manner in which this movement is taking place. This approach of so heavily amending an original piece of legislation that it becomes quite incomprehensible, especially where both documents are read simultaneously — I found it impossible to get through the two documents — flies directly in the face of the Government's declared intention to make legislation easily understandable and fully accessible to the widest possible public.

Nowhere is this needed more than in equality legislation, which affects a wide range of people. In terms of accessibility to its provisions, the Bill is a step backward rather than the step forward it should be in every respect. On a number of occasions, we have dealt with amending legislation which does just that — amend. I do not suggest that anybody involved is lazy and realise there are time limits within which things must be done. However, it seems a shame that little is achieved with regard to amending legislation, with some exceptions — I accept that some Ministers and Departments have decided to create single pieces of legislation which are easy to understand.

That is my protest. I want to focus my contribution on one of the grounds of discrimination in particular, that of age, which Senator Tuffy has just discussed. Before I deal with that, I want to raise a different issue, which touches on a matter I do not quite understand although the Minister referred to it in his speech. On section 3, the explanatory memorandum to the Bill states:

With respect to the protection of private and family life, a limited exclusion from the definition of "employee" is provided for in the case of personal services affecting private or family life provided in the home.

That intrigued me and I became even more puzzled when I looked at the actual text of the section itself, the relevant part of which reads:

'employee'. . . does not include a person employed in another person's home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons.

The effect of this is to exclude all people who are employed in a person's home from the protection of equality legislation, across every one of the nine grounds of discrimination. Under this exclusion, I am sure my colleague, Senator Norris, will be appalled to learn that a gay butler is stripped of all protections in my reading of this provision. More generally, the home is precisely the place where many vulnerable people find employment, including those who come from abroad, to which there has been reference in the House today. I am thinking of the widespread use of foreign nannies or au pairs who are all too often exploited by their employers. These workers seem to be those most blatantly discriminated against.

I can think of no possible reason for this exclusion and I ask the Minister to provide an explanation for it, and a justification if he can. I realise the Minister has touched on this in his contribution. He used the phrase "in the context of the race and framework employment directives". The Minister might explain that as I do not understand where it fits in.

I was particularly disturbed to note when I read the EU directive on which this updated legislation is supposed to be based, that there is no mention whatever of this exception in that document. The directive is, in fact, quite explicit in stating that the intention is to apply it to all kinds of employment without exception. On the face of it, the exclusion set out in section 3 is bizarre, highly undesirable and may be illegal from an EU perspective. I am sure the Minister has an explanation and I await enlightenment on this issue with considerable interest.

However, as I said at the outset, I would like to focus on the age ground of discrimination. With the indulgence of the House, I will talk not about something that is in the Bill but about something that is not although in my view it should and, I hope, will be inserted if I can make a sufficiently convincing case to the Minister. I have a particular interest and experience in this area, not just because I have reached retirement age but because more than a decade ago, in 1993, when I had been in this House just a few weeks, I succeeded in having an amendment on this very issue accepted by the Government of the day.

The measure concerned was the Unfair Dismissals (Amendment) Bill 1993 which had passed all Stages in the Dáil without anyone noticing that it did not include the age ground as the basis of an unfair dismissal. To give the relevant Minister full credit, the lady who is now Leader of this House, Senator O'Rourke, immediately recognised that a goof had been made despite the Bill having gone through the Dáil and various consultations. When I drew the matter to her attention, she immediately agreed to accept my amendment.

It is tempting to think we have come a long way in the ten years since then but I wonder if this is really true. Our population is steadily getting older but we show very little sign of having come to terms with that. One symptom of this is that there is nothing in this Bill, or in the whole corpus of equality legislation, that sets out to attack the concept of compulsory retirement.

I will make my position on this matter quite clear. I do not wish, as apparently the Society of Actuaries does, to raise the age of retirement. I have no wish to force anybody to work beyond the accepted retirement age. While I realise the Government is poised to introduce a measure that will raise the retirement age in the public service, that is a separate question to the one I raise. I am not talking about forcing anybody to work up to a certain age or to work beyond that age but about a situation where a person is able and willing to continue working, but is prevented from doing so by a compulsory retirement age.

People vary greatly in their wishes on this subject which is why I am against compulsion in this regard. Some people cannot wait to get their gold watch and are happy to move on to a life of retirement. Others are greatly distressed at the thought of stopping work and argue that they are fully capable of carrying on. Others again would like to work part-time or in a reduced capacity but find that the taxation and pension regimes make that more difficult to arrange than it should be.

I suggest to the Minister that the time is fast approaching — indeed, that it has already come — to outlaw the entire concept of compulsory retirement at an arbitrary age. The key word here is "arbitrary", which is where the discrimination arises. No one would argue that older people are as physically capable as younger people. No one would argue that some extremely old people do not begin to lose some of their mental faculties. For such people, an honourable retirement is an appropriate way to spend their last days. To argue that at a particular set age, usually 65, all people, without exception, become incapable of further employment is not just untrue but flagrant discrimination. As such, it should feature in equality legislation that purports to remove all discrimination on any of the nine grounds.

I am not arguing that abolishing the concept of compulsory retirement would achieve all we are setting out to do in restructuring our society or coping with the challenge of an ageing population, to which we have referred on a number of occasions in this House. In that picture, making compulsory retirement illegal would be a very small dot on a large canvas. It would be an important start because it would signal our alertness to the problem. Making compulsory retirement illegal would be a measure with considerable benefits with almost no cost at all. At a personal level, no one would be forced to work beyond whatever was the normal retirement age for their occupation. At a business level, no one would be forced to go on employing a person who was incapable of doing their job. Such a change would be a huge boon to people who would prefer to go on working. In most cases there would be a clear benefit to the companies for which they work. To the wider community, the benefits of having someone continue to be economically active are too obvious to need spelling out.

I express the hope that during the time it takes for the Bill to pass through the legislative process, the Minister will reflect on what I and others have said here today. Why not make a little bit of history by taking this small step forward? Apart from the omission on which I have focused, I welcome the Bill and wish it well. I am particularly pleased as an employer to see a strengthening of the conditions under which employment must be provided for people with disabilities. The existing legislation in this regard is much too weak. It provides an easy way out for any employer who wishes not to employ disabled people. The new provision is far more balanced and should be fair to everyone concerned.

I welcome the Bill. I have made some points which I hope the Minister of State will take into account.