Aodhán Ó Ríordáin (Dublin North Central, Labour) | Oireachtas source

I am going to miss section 37 when it has been enacted. It has been a part of my life for the last three years. This was a long and tortuous process and many of us worked hard on a cross-party basis to bring the Bill to this stage. We are now at the heart of the Bill and, while I am conscious that it has not been possible to have a real debate on the text and options previously because the Government has not been in a position until now to bring forward its proposed amendments to the Private Members' Bill. To fill that gap and to outline the rationale for our proposed approach, I propose to rehearse the history of the Bill. While some Senators will be familiar with the history, it is important that the details be accessible in the Official Report.

The Private Members' Bill as published has been examined carefully by my Department and the Attorney General. It may appear that we are deleting and replacing all of the existing text but we are not. There are technical and drafting reasons for the approach being taken to amending the Bill but our conclusion on foot of a lengthy examination is that the Bill as published is largely constitutionally sound. There is a specific concern that the proposed new section 37(1)(c) in section 2 of the Bill as published, which would allow the Minister for Justice and Equality, in consultation with the Minister for Health or the Minister for Education and Skills, to issue direction or guidelines, could constitute an unlawful delegation by the Oireachtas of its legislative responsibilities. Instead of this provision we propose to provide for a list of considerations to be taken into account by employers, as set out in the proposed new subsection (1)(c).The objective is to ensure the bar is set sufficiently high that employers must provide objective justification for any action taken against an employee and must show that the action is related to, and proportionate to, the actual damage to the ethos of the institution and is rationally and strictly related to the employer's religious ethos. The reversal of the burden of proof in the following paragraph (d) is not necessary as section 85A of the Act contains this provision already.

On the substance of the Private Members' Bill and the specific amendment, it is critically important we get this right. The existing section 37(1) of the Employment Equality Act, as amended by section 25 of the Equality Act 2004, provides that:

A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part or if--(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or

(b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.

The provision was previously contained in the Equality Bill 1996 which was referred by the President to the Supreme Court under Article 26 of the Constitution. While the court held the Bill to be unconstitutional on other grounds, the constitutionality of what is now section 37 was upheld as a reasonable balance between the competing constitutional rights involved. While we can seek to find a new balance, the better to meet the rights of employees, the Supreme Court's decision outlines the need for a balance to be struck. It is not simply a matter of deleting certain elements of the existing Act. We must recognise the right of the religious institutions concerned to prevent the undermining of their ethos and for that reason, I am not able to accept amendment No. 14. It would render the remainder of the amendments apropos section 37 meaningless as they would not link back to paragraph (b).

There are going to be disputes and, aside from intervening to an extent that does not potentially raise constitutional concerns, it is unclear how deleting section 37(1)(b) will provide any guidance on how to resolve disputes between employees and employers. It would remain the case that an employer had the right to take action against employees who acted against the employer's best interests and disputes would, following deletion of the existing provision, fall to be resolved in the generally applicable labour relations law. I hope the Senator will accept my rationale.

While the provision that is now section 37(1) was found in 1997 to strike a reasonable balance between the rights of employees, on the one hand, and freedom of religion, on the other, there is legitimate concern that, in practice, it has not worked. Primarily its operation is regarded as having a particularly chilling effect on LGBT people in the education system. However, it also affects lone parents and divorcees who are restricted in discussing their private lives with their colleagues in the safety of their staff room. I have more to say on the specific amendments proposed to amendment No. 13, but I will stop there.