Averil Power (Fianna Fail) | Oireachtas source

I welcome the Minister of State to the House. It is welcome that in the intervening period since our last discussion, the Irish Human Rights and Equality Commission published its report last Friday. This is an important development as the report has clarified what is required in amending the legislation, in particular, what is required of us under European law which is superior to all Irish law, including the Irish Constitution. The report addresses the concerns raised by the Ministers, Deputies Shatter and Quinn, about the legality of the Bill I put forward in 2012 on behalf of the Fianna Fáil group. The Ministers expressed concerns about the constitutionality of the Bill and whether it met our obligations under European law. We have been vindicated in that respect by the report because it makes clear that what is required of us is quite ambitious and we have a long way to go from our current legal position to ensure that we are living up to our obligations under European law.

The report also addresses the concerns raised by Senator Bacik when publishing the current Bill last year. On that occasion she explained to the House why the Bill was so conservatively drafted. She informed the House that she would have liked to go further but had been advised that the European Directive No. 78 of 2000 required a conservative approach. I do not for a moment doubt Senator Bacik's bona fides in that respect. I hope she will now be empowered by the Irish Human Rights and Equality Commission report to push for a more ambitious equality-based amendment of section 37.

That report makes it clear that both our existing law and the Bill before the House fall foul of our obligations under European law. The blanket distinction between public and privately-funded institutions is not consistent with the European directive because the directive makes no such blanket distinction between public and private institutions. The report also makes it clear that under EU law it is not permissible to use religion as an excuse to discriminate on the basis of gender, sexual orientation or any of the other protected grounds and the protected grounds cannot be interfered with. The exception to the religious ground will be very narrowly interpreted and any discrimination must meet the test set out by the European courts. There are no circumstances where action is permissible on the basis of the protected grounds. Fianna Fáil has put forward Committee Stage amendments to address both those issues.

The report proposes that discrimination on the grounds of religion or belief should only be permissible where adherence to a particular religious belief is a genuine, legitimate and justified occupational requirement. Those words are included in the provisions of the Bill.

There has to be a connection between the specific role and the requirement to be of a particular belief. Case law from other European member states indicates that a strict test will be applied by the European courts to any exemption. For example, the courts would be very unlikely to allow discrimination against a groundsman on the basis of his faith because there is no clear connection between the role and any religious requirement. There is a need for greater clarity with regard to the different types of employment in religious organisations and in schools and hospitals under religious patronage. There are different layers of employment, the first layer being ministers of religion, priests, rabbis, imams and other religious officials. Very few would argue that churches should not enjoy almost complete autonomy in selecting such people. Anti-discrimination legislation should not require the Catholic Church to recruit or train women - I wish this were the case but I appreciate that it is not our place to force it to do so. I do not think anyone would make an argument that it should be forced to do so.

However, the second layer of employment may contain people who may not be ordained but who perform tasks that are closely related to the religion, religious mission or church. It should be noted that in the UK when similar legislation was being tested, a man who had been refused employment as a youth worker by a religious organisation on the basis of his homosexuality, won his challenge and was awarded compensation because the court was not satisfied that there was a clear connection between the role and the requirement to be of a particular religious faith. The third layer of employment contains a wide range of other employees who occupy non-religious posts such as a groundsman, cleaners or administrators. Those type of positions have not been the subject of controversy. There has been debate in other countries such as the UK about employing homosexual people as youth workers and about workers in the second category of employment. Religious organisations might argue that such workers are not working as ministers but they are working for a religious organisation and therefore that they should share the faith in question but other rights come into play such as the right to earn a living.

There is likely to be a considerable clash of views in this country during the time this legislation is being discussed and amended, and thereafter, about such interpretations. There is likely to be a clash of views as, for instance, between myself and Senator Walsh, on the question of ethos and what the respect for ethos requires. The Irish Human Rights and Equality Commission report makes clear that we need to be more specific on the question of ethos as there will be very different interpretations in particular in the area of education. For example, the INTO represents teachers and the Catholic Primary Schools Management Association and other associations represent schools of a particular faith. There may be different opinions about the type of behaviour that would constitute an active undermining of an ethos. We must take care when using in legislation terms such as "actively undermining", "ethos" and "genuine legitimate occupational requirement". There is a need to ensure clarity as to their meaning. As legislators we cannot be overly-specific when drafting legislation but equally we cannot abdicate our responsibility and allow words to be put in legislation which are deeply controversial and then leave it to the courts to provide the definition. We have a long way to go to produce legislation that meets the requirements of the report of the Irish Human Rights and Equality Commission which stresses the need for clarity and legal certainty. It is in the interests of everyone to have that clarity, as much in the interests of the employer as the employee. There needs to be a shared understanding of what is required and the circumstances in which action can and cannot be taken against an individual. This is a requirement under European law.

The commission's report highlights the fact that the Irish Government has not released a recent opinion from the European Commission which expressed concern about our legislation because of the view that it would fall foul of European law. However, we have access to the recent opinion from the European Commission to the UK Government which was made public. In that opinion the European Commission stressed that the European Court of Justice has consistently held that directives must be implemented with sufficient clarity and precision to satisfy the requirements of legal certainty. In my view, neither the current legislation nor this Bill meets that test. We have a long way to go.

I am glad the Bill is not being guillotined. The Irish Human Rights and Equality Commission report sets out a clear framework for how we should proceed. It states that this Bill would not meet our obligations under EU law and that it could possibly need to be amended out of all recognition before it is enacted. The amendments we have tabled anticipate some of the issues referred to by Senator Zappone in her amendments about religious grounds and my amendments deal with the public-private distinction and other protected grounds. I suspect the Government is reserving its right to bring forward a whole host of amendments on Report Stage. I suspect there will be a book full of amendments on Report Stage. I refer to my original intention when we discussed this issue two years ago.

I would like to see us work on this from a cross-party perspective where we can put all of our heads together and come up with legislation we are all happy with. The best way to do that is to bring forward new legislation on foot of the IHREC report. This Bill has only gone to Second Stage and we should produce new legislation to pass Second, Committee and Report Stages.

There is a lot of goodwill, knowledge and interest in this issue in the House. Some Members were here when the original legislation was passed in 1988 and objected to it at the time. Some people take a great interest in it but the Bill will not receive the same level of interest or contribution when it goes to the Lower House. As much as I want to see legislation passed as soon as possible and I wish we could have done it earlier, I want to see the right legislation passed. With dozens of Report Stage amendments all trying to do similar things with different wording, our final reading of the Bill will be on Report Stage and I am concerned that we will not have sufficient scrutiny of the final wording of the Bill. I would prefer to start afresh so we can produce acceptable legislation and work together to conclude it as soon as possible.

Each group made submissions as part of the IHREC process but, unfortunately, they have not been published. I ask the Minister to talk to the Minister for Justice and Equality, Deputy Shatter, about that. In the education sphere, most submissions are published on the Department of Education and Skills' website so that everyone can see where other groups are coming from. It helps us to have an informed debate and to see the extent to which we can reach consensus on some issues and understand the concerns of other groups. That has not been done in this case and I have only seen a handful of the 61 submissions. I urge the Department to put them forward.

It is essential the two Ministers respond formally and publicly to the IHREC report. I understand they will want to consult the Attorney General first but it is essential there is a proper formal response that everyone has access to so that we are not listening to a ministerial speech whenever the Minister comes into the House and responding straight away. The issues are more complicated and more important than that.

At the education committee meeting, which I have just come from, I proposed having a hearing on it and the committee agreed to do so in the first week of July. That is quite close but sufficiently far away to allow the groups to prepare for it. It will not add any great delay for us to do it. We used that procedure for the Gender Recognition Bill, the Bill dealing with school admissions and for other issues. I can see Senator Bacik talking to the Minister. For the most part, this is justice legislation but it is of particular interest to the education community and there is nothing to stop the education committee having hearings on the Bill. There is nothing to stop it having hearings while the legislation is in this House. We have hearings on issues of general concern, not just on Committee Stage. We bring in groups to hear their points of view. We must find a way to bring everyone around the table and come up with proper legislation that is as detailed as it needs to be and that provides the legal clarity required.

The IHREC report makes it clear that people cannot discriminate on the grounds of sexual orientation under European law, which shows us that we must deal with concerns of LGBT teachers about their identity in the classroom and in religious-run hospitals. In the past week, teachers have asked me whether, if we introduce legislation that provides that people cannot actively undermine the ethos, it means a female teacher in civil partnership getting married, going back into the classroom and responding to a question on why she is wearing a wedding ring by saying she married her wife at the weekend, is actively undermining the ethos. Senator Zappone has made this point. If a teacher, gay or straight, intervenes in a case of homophobic bullying and says that people cannot bully others because they are gay, that being gay is not grounds for discrimination and that everyone should be treated equally regardless of sexual orientation, is it actively undermining the ethos of a religiously-run school? Is it actively undermining the ethos of a religious-run school if someone is photographed at a marriage equality rally over the coming year? We need clarity on these issues and it is important we do so before finishing the legislation by teasing it out and making sure the legislation we end up with is fit for purpose. I want us to do so as quickly as possible and we will facilitate it on the Opposition side but I also want us to do our job correctly.