Ivana Bacik (Independent) | Oireachtas source

I welcome the Minister of State to the House for the resumed debate on Committee Stage. I am glad that, in the interim, we have had the publication of the IHREC report on the issue of section 37(1) and how to address it in the context of the directive. I am glad the paper has been published and it is important to maintain the momentum. Maintaining momentum in the legislative process has a knock-on effect in other ways and this has seen the report published more quickly than it otherwise might have been.

I am wary of suggesting that we should wait for the publication of a new Bill because I know the kind of delay that can occur when we are talking about the Government putting a new Bill on a legislative timetable and having to get Cabinet approval for that new Bill. We have a Bill before us and it is not perfect. I said on Second Stage and again last week that it was drafted somewhat conservatively, in accordance with legal advice. I hope it can be strengthened and made more robust. We now have a pretty clear blueprint from the IHREC lawyers, Marguerite Bolger and Claire Bruton, who I commend for their work. We have a clear blueprint and it gives us a clear indication of the kind of amendments required for the Bill, which are not extensive.

The recommendation paper sets out options and rules out all but the option taken in the Bill. It is helpful for all of us to see that it deals clearly with the issue of deleting section 37(1). A number of trade unions suggested section 37(1) could be deleted in its entirety. In a perfect world, that would be my view too but many of us were conscious the approach would not stand up to legal scrutiny. That is made clear in the recommendation paper, which also says that the best and most legally desirable manner in which to deal with the issues in section 37(1) are to amend it. They set out six issues that must be taken on board in drafting legislation amending section 37(1). A number of them have been incorporated into the text of the Bill before us.

Some amendment will be necessary and I am delighted that paragraphs 41 and 42 of the recommendation paper give the clear view that we should provide the same protection to those employed in institutions that are privately funded. There are models in other European countries, such as the Netherlands, where there is a distinction between private and public institutions. It is not the case that making the distinction falls foul of European law but we do not have to make the distinction and a more progressive way of amending section 37(1) is to delete the distinction. I am glad to see it and it will provide more robust protection to employees.

It also makes clear that the burden of proof must be on the employer, which is included in the Bill. No discrimination should be permissible where it constitutes discrimination on another ground. There are some areas in which the recommendation paper is somewhat less prescriptive than it might have been. On page 15, it refers to the genuine, legitimate and justified occupational requirement test, which is in the Bill. It says that consideration should be given as to whether this applies only to access to employment and whether this would be sufficient to satisfy the proportionality requirement. Clearly, that is a more progressive drafting and I would welcome the idea that it applies only to access to employment and, beyond that, there is less room for exemption for religious bodies. The report then goes on to say that to allow the discrimination beyond access to employment could be overly broad, although some consideration may need to be given to an employer's requirement to maintain numbers of employees of a particular religion at a particular level within an organisation. A decision will have to be made on that point and we should work constructively to do that where the report does not clearly give us guidance.

In paragraph 45 it raises a point, which I think Senator Zappone raises in an amendment, that there is a narrower provision in the equivalent Australian legislation saying that discrimination "in an educational institution can only arise in the context of “doctrines, tenets, beliefs or teachings of a particular religion or creed” ". It takes the view that this would be a suitable standard. Perhaps we could consider incorporating that into the Bill. That would give employees greater protection because it would further narrow the grounds of allowed discrimination.
There are several issues which require work but that will not require extensive amendments. Many of the six recommendations at the end of the paper have already been met. We need to amend the provisions on public and private institutions and I am glad about that. In general the position in the Bill is vindicated. It is the right legal approach.
There is a useful analysis of the directive and of Article 4(2). Last week we spoke about the language in the directive. Some of the language in Article 4(2) is permissive, for example, it uses “may” rather than “shall”. It is important to note the proviso at the end of Article 4(2) which is in prescriptive language that the directive "shall thus not prejudice the right of churches" etc. "to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos." The authors of the recommendation paper have quite rightly pointed out that the language of the directive overall means that in any amending legislation, "There is a need to balance conflicting rights between employers and employees, the interests of the religious institution, the protection of their ethos and the rights of all individuals to a workplace free from discrimination." It is important to get that balance right. We are well on the road to doing so.
I am very glad to have received communications from the teachers’ unions, particularly the Irish National Teachers Organisation, INTO, which said they would welcome a little more time to consider the report. They are not pushing for Committee Stage to be concluded at this point. I am very grateful for that. I am also glad that we are adjourning rather than concluding Committee Stage today because the teachers’ unions recognise the need for a little more time. I stress a "little" more time.
I welcome the representatives from the Gay and Lesbian Equality Network, GLEN, who are in the Visitors' Gallery. They take the same view, namely, that we need a little more time now that the report has been published. Let us keep the momentum. Last week, we all agreed that if possible we should seek to have the Bill become law in time for the next school year, in September 2014. The Attorney General will have to scrutinise the Government amendments and there is some uncertainty about the time that would take. Here in the Seanad we should be able to keep the legislative pressure up by scheduling Committee Stage for soon after Easter, and to have Government amendments, if not drafted by then, at least begun so that we have them for Report Stage and keep the momentum up.
I am not a member of the Joint Committee on Education and Social Protection and that committee is entitled to do as it wishes but hearings that might delay the Bill’s progress through the Oireachtas would not be a good idea at this stage. There has been extensive consultation. It would be very helpful to see all the submissions, to which the recommendations paper refers, published. It would make reading the IHREC recommendation paper much easier if one could see the submissions. I made a submission, as I am sure many of us did. It refers to some submissions from unions of which we are all aware. It would be helpful to know what was the balance of submissions, the views taken and see some of the points made.
It is important to reflect on the paper, to welcome it and focus our minds between now and the resumption of Committee Stage after Easter, on how best to amend the Bill, to ensure it meets the standards set out in the recommendation paper and that we can ensure as extensive protection as possible for employees against discrimination in the workplace.
I am very familiar with the judgments in the Eileen Flynn case. Like many here I have read them several times over many years and know exactly the issues involved, as does the Minister of State. We would all want to make sure nothing like that could happen again to an employee and that employees would be protected in the future in the workplace against discrimination on the grounds of sexuality, sexual orientation or their marital or family status.