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

On amendments Nos. 1 and 3, it is important to note that the existing section 37(1), in permitting favourable treatment on the religion grounds or action to be taken in relation to the undermining of the institution's religious ethos, does not permit discrimination on any of the other grounds allowed in the Employment Equality Act 1988. However, it has had a chilling effect and it does not offer much guidance on the question of what undermining the religious ethos might mean in practice. We do not have any recent case law to guide us. A central feature of the Private Members' Bill in addressing this issue and which, on legal advice, we consider must be retained, is to distinguish between religious institutions run wholly for private purposes and those providing an educational or medical service to the public which is financed by State funding. We are advised that this is an important distinction that must be provided for to ensure the constitutionality of the Bill. There are competing constitutional rights involved: freedom of religion and freedom of association for religious groups, the freedom to establish and maintain their own institutions of various kinds, and the right of employees to be free of discrimination. There is a balance to be struck and the advice available to me, to present it in a positive way, is that the State has a stronger standing and arguably a duty to ensure persons whose salaries are paid directly or indirectly from the public purse are protected and that, in such circumstances, a stronger intervention in the employee-employer relationship than would be appropriate in the case of purely private religious institutions is justified. For that reason, I am unable to accept amendment No. 1 and amendment No. 3 to amendment No. 13.

I hope the Senators will accept my explanation and understand we cannot run the risk of the Bill being found to be unconstitutional on this point. I fear that amendment No. 2 to amendment No. 13 would go too far. Are we discussing amendment No. 2?