Alan Shatter (Dublin South, Fine Gael)

I thank Senator Power for giving us an opportunity to discuss how we can progress reform in this important human rights area. From my two meetings with her she knows that I am committed, along with my good colleague, the Minister for Education and Skills, Deputy Ruairí Quinn, to strengthening the statutory protection for equality.

My unequivocal conviction is that it is simply wrong to exclude people from employment or other opportunities in life on the grounds of gender, sexual orientation, gender identity, family status, marital status, religion, age, race, disability, race or ethnicity, including membership of the Traveller community. More specifically, it is unjust that people whose wages are paid by the taxpayer and who are employed to provide essential public services should feel intimidated or feel a need to live their lives in secret for fear that their sexual orientation or civil status or family status, for example, should lead to victimisation by an employer.

It is important, of course, that we ensure that we cover, in this proposed Bill, the full range of individuals who may be affected. Senator Power knows from my discussions with her that there are particular concerns that the Bill omits to mention family status or issues of gender. Essentially, under this Bill, the protection that, for example, should be afforded to the single mother in these circumstances would not be extended to her.

As a society we have a fundamental duty to ensure that minorities who have historically been subjected to malign discrimination are properly treated. Treating people properly means assuring them of full equality without qualifications. Equality law is an important means of positively ensuring that lesbian, gay, bisexual and transgender people can live openly, safely and honestly in society. The bright-line pledge in our programme for Government is that: "people of non-faith or minority religious backgrounds and publically identified LGBT people should not be deterred from training or taking up employment as teachers in the State".

Self-evidently, the State has a compelling human rights interest in eradicating discrimination based on social prejudice. The practical challenge for us today is how we can as a pluralist constitutional democracy commit to both equality of treatment and tolerance of and respect for religious differences. The advice available to me is that the Bill touches on issues of the profound constitutional sensitivity and importance. So we need to tread very carefully. I am unsure that this Bill as drafted would pass constitutional muster and that is a particular concern.

The test the Oireachtas faces when it legislates in this area is whether it has preserved a proper balance between the rights of religious denominations to manage their own affairs and maintain institutions for religious and charitable purposes and the rights of other citizens to equality before the law and to earn their livelihood. The courts have enunciated this test. It is important that we consider the relevant constitutional case law. In their case law, the courts have endorsed the proposition that occasions arise when it is necessary to make distinctions in order to give life and reality to the constitutional guarantee of the free profession and practice of religion. In McGrath and O Ruairc v. The Trustees of Maynooth College in 1979, Mr. Justice Henchy affirmed this view. He said that the whole point of proscribing disabilities and discriminations at the hands of the State on the ground of religious profession belief or status is, "to give vitality, independence and freedom to religion". He further ruled:

Far from eschewing the internal disabilities and discriminations which flow from the tenets of a particular religion, the State must on occasion recognise and buttress them. For such disabilities and discrimination do not derive from the State; it cannot be said that it is the State that imposed or made them; they are part of the texture and essence of the particular religion; so the State, in order to comply with the spirit and purpose inherent in this constitutional guarantee, may justifiably lend its weight to what may be thought to be disabilities and discriminations deriving from within a particular religion.

In re Article 26 and the Employment Equality Bill 1996,the Supreme Court cited this judicial opinion approvingly. In this Article 26 reference case, the court considered the constitutionality of section 37 of the Employment Equality Bill 1996, which is now section 37 of the Employment Equality Act 1998, which is the principal section the Senator's Bill seeks to amend. The Supreme Court said:

It would therefore appear that it is constitutionally permissible to make distinctions or discriminations on grounds of religious profession belief or status insofar - but only insofar - as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution.

The court acknowledged that sections 37(1) and 37(2) of that Act form an exception to the general rule against discrimination on the religious ground. The court upheld the constitutionality of section 37(1). This provision entitles an institution to give more favourable treatment, on the religion ground, to an employee or a prospective employee where it is reasonable to do so in order to maintain the religious ethos of the institution or to take action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution. The court said that the use of the words"reasonable" and "reasonably necessary" implies that the test is to be an objective one and that the matter is to be resolved on a case to case basis. The court also upheld the constitutionality of section 37(2), which entitles an institution to prefer a particular candidate on the grounds of his or her religion if in fact being of that religion is an occupational qualification for the post in question. Thus, the court took the view that the Oireachtas had achieved a correct balance between the right of free profession and practice of religion on one hand and the right to equality before the law and the right to earn one's livelihood on the other.

It is important to note that the Constitution does not state that religious rights must always trump equality rights. Freedom to practise religion is subject to the requirements of public order and morality. However, we may reasonably infer from the Irish constitutional case law that action by the State that burdens a religious practice must be justified by a compelling public interest. The burden must be reasonable, proportionate and not arbitrary.

The competing rights in this area include freedom of religion, freedom of assembly, right to privacy and to earn a living, freedom of expression and conscience and the right to freedom from harassment and discrimination. The constitutional obligation on the State to vindicate the personal rights of citizens is also important.

Thinking aloud and out of respect for the dialogue the Senator has initiated, I would invite the House to consider that, in drafting legislation to amend section 37, we might draw some important distinctions. These are not distinctions yet explicit in the Bill before us. We might distinguish, first, between behaviour that might be purposefully intended to undermine the religious ethos of an institution, on one hand, and on the other hand, possession by a person of an inherent characteristic or ground on which discrimination is prohibited, for example, gender, sexual orientation. Second, we might also distinguish between an autonomous religious institution and public services that are delivered in a partnership between State and religious-controlled institutions, particularly where the religious institution is the de jure employer, but the State pays the salary. Making these distinctions might enable us to strike a constitutionally appropriate balance between freedom of religion and the right to equality in the context of publicly-funded educational and medical services.

We should assess the feasibility of an approach to amending legislation on the following lines. Section 37(1) could remain unchanged in respect of wholly autonomous religious institutions. However, for educational and medical institutions, we might provide that first, more favourable treatment on the religion ground as per section (37(1)(a), for the purposes of this section cannot be based on a person's characteristics under one of the other grounds; second, reasonable action to prevent an employee or prospective employee from undermining the religious ethos of the institution may only be taken where an employee actively undermines or seeks to undermine, or where there is a reasonable belief based on demonstrable evidence that a prospective employee would so undermine or seek to undermine, the religious ethos of the institution concerned; and the section would be without prejudice to a person's constitutional right to privacy or freedom of expression. The crucial aspect would be to ensure that the power of the institutions to differentiate between employees or prospective employees should only apply where there is a real danger for the institution, based on evidence. This might include if the person acts with the conscious purpose of directly undermining the employer's core religious beliefs or dogma; or if it is a genuine and demonstrably necessary occupational requirement of the employer that the employee act in a way consistent with the employer's religious beliefs. The provision might specify the specific considerations that must be weighed in arriving at this determination, including, for example, whether the employer's action is rationally and strictly related to the employer's core beliefs or dogma. One might also balance the consequences for the person, in particular in relation to his or her rights to dignity, equality, self-determination, self-expression, social life, and privacy; and also the consequences for the employer should the distinction be allowed or disallowed.

These are my current and preliminary ideas on how reform might be approached in a manner that is constitutionally sound. I consider that a more extensive consultative process and formal assessment of the options that might be before us should be undertaken. Last October, I announced plans to merge the Human Rights Commission and the Equality Authority in order to create a new and enhanced Irish Human Rights and Equality Commission. One of its functions will be to advise Ministers and the Government on new legislation. I expect to be in a position to publish my proposals for legislation to establish the new commission very shortly. I expect that the commission will be in place within a few months.

It would be useful to ask the new commission to consider the issues that arise in this area and how reform might be best approached in a way that does justice to the cross-cutting constitutional rights involved. Given the complexity of the issues involved and that at the heart of the issue are competing constitutional rights and questions about the constitutional obligation of the State to protect the personal rights of all citizens, in my view it is worth taking the time to ask the commission to report on its views and recommendations to the two Ministers centrally concerned, the Minister for Education and Skills, Deputy Quinn and myself as the Minister for Justice and Equality and to the House. Once the commission has reported, I commit to bringing forward Government proposals in this area early in the new year.

I reiterate that I accept the spirit of the Bill. I am proposing that the Senator would agree to defer further consideration of it until the new year, when we can return with amendments which can be fully and properly discussed in the context of a continuing Second Stage debate to ensure that the ultimate Act will be workable and which will survive constitutional challenge.

I seek agreement from all sides of the House on this measure. I ask the Senator not to divide the House on what is a very important Bill. It is vital that the Bill is a strong measure and that it is constitutionally sound. We do not wish to enact a piece of legislation which may be struck down by the courts before it can achieve the true and good objectives it is designed to achieve.

We will now travel the unusual route whereby my colleague, the Minister for Education and Skills, Deputy Quinn, will address the House.