Vincent P Martin (Green Party) | Oireachtas source

On behalf of the Green Party, I commend Senator Ruane and all concerned, wholeheartedly support this legislative endeavour and unreservedly welcome it.

We will shortly hear the respondent for the Government, who happens to be a member of the Green Party. The Minister, Deputy O’Gorman, is very welcome to the Chamber.

There have been very justified, kind and positive words said by my fellow Senators about this initiative and I wish to join them in wishing this endeavour the very best. It is an example of where politics is working. We are, first, in a democratic republic with democratic institutions. Second, we have an Opposition Member being true to her role as a legislator and amending the law in a very novel, needed and urgent way, ahead of the UK and others.

We will have disagreements on other days. We had a motion last week sponsored by Senator Boylan who wished to change the fact that the housing assistance payment, HAP, should not be calculated as part of the disposable income of an applicant when the seeking of civil legal aid is being assessed. That was suddenly changed. This should feel like an empowerment of all democratic Members of this Upper House. Occasionally, we hear it said that it is all Government business going one way.

This is an example where it took great ingenuity, resilience and dedication but Senator Ruane has struck a blow for a better and fairer workplace and she deserves to be commended on that. She did so in a way which was so measured. She opened her speech to move this motion by saying that NDAs have a place. We are not dissing them in their entirety because these agreements and their very presence, in certain circumstances, can be a catalyst to settle a case in a full and final consent settlement.I am talking about outside the realm of this particular Bill. Given our Constitution, litigation and court proceedings are held in public or in open court. It may be a year before the scheduled time that a case will be ventilated - the trial of the action. There might be a motion at an early stage for discovery. A case can settle on the eve of the discovery motion being moved because at that stage it will have blown open into the public sphere. The fear of publication or the odium that would follow it can often be a positive motivating factor in a way that legitimately buys silence in certain circumstances. The measured approach taken provides an exception to this and it is not a belt-and-braces approach. The Senator said the victim has the prerogative to say "No" and that the employee need not go along with it and may seek an exception. There may be certain circumstances or unforeseen consequences but we have that covered.

The Bill has also covered something for which I have been campaigning for years. It is to demystify all aspects of the law and make the workings and operations of the legal system, whether in contracts or affidavits, more accessible and understandable to the public. The Bill, as proposed, uses simple English. In this day and age it is not too much of an ask but I am glad it is included. It will not be caught in the Shakespearian language of centuries ago or in legalese. It is another good reason to welcome the Bill.

It is important to say that, for anyone who believes they are caught, the court will be the ultimate adjudicator. I have been in cases involving a confidentiality clause when a third party is suddenly involved. One side does not want the clause. The other side may be petrified of disclosing or would love to disclose the detail. A party may be only too happy to disclose but fears being sued in contract for breaching obligations and would, therefore, have to go to court. In ultimate circumstances the court is there to protect people and people should be aware of that.

I wish to make two observations at this early reading of the Bill. It seems there is such good statutory intent behind the Bill. It would essentially prohibit non-disclosure agreements following an incident of workplace sexual harassment or discrimination in almost all circumstances. I wonder whether a broader point is for another day. This Bill is to amend pivotal employment legislation, and that is an achievement in itself. The legislation lives and is there to be changed and reformed. In a sense, the Senator is breathing new life into the legislation and using it as a vehicle for change and for good. The concept is strong. Does some similar measure have a role to play outside the workplace where it could be covering up serious crime? That is for another day, but there are other circumstances I would be concerned about where the silence bought is of a serious criminal nature. That silence ought not to be bought at any money. No money should be able to buy that silence. I am talking about outside the workplace. This Bill is focused and pragmatic and deals with amendment to the employment legislation. I welcome that it requires the Minister to make regulations under the Act, including for a standard form of agreement.

I will finish with that. I am trying to work ahead. Creative people might come up with a different name for a non-disclosure agreement. This is so important. They have different names and styles at the moment. They are called confidentiality clauses in a contract and a non-disclosure agreement can be a separate rider. The Minister has a crucial role to play in publishing guidelines. People circumvent landlord and tenant law. They create a licence and then suddenly they are outside the ambit of the Residential Tenancies Board. I am concerned about that and I am flagging it at this early stage. It will require considerable input, co-operation and expertise from the Minister. My thanks for your indulgence, a Chathaoirligh, as I went a little over time.