Seanad debates

Wednesday, 2 May 2012

Employment Equality (Amendment) Bill 2012: Second Stage

 

1:00 pm

Photo of Averil PowerAveril Power (Fianna Fail)
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I move: "That the Bill be now read a Second Time."

I welcome the Minister to the House and I welcome representatives from the Gay and Lesbian Equality Network, GLEN, the teacher unions, BelongTo, TENI, Gay Doctors Ireland and Ógra Fianna Fáil who are in the Gallery. We are dealing with an issue of major concern to each of these groups, namely, the threat posed to thousands of teachers, doctors, nurses and other employees by section 37(1) of the Employment Equality Act. In proposing this Bill, I hope we can reach cross-party consensus. Tackling injustice and promoting human rights is an issue on which we should be united.

Since I first proposed the Bill, I have endeavoured to do everything I can to build consensus to move it forward. I engaged with the other political parties and Independents. I made it clear that I am prepared to work with any Member on any amendment to make the Bill more effective. On Second Stage we are debating the general principles and on Committee Stage, as we do with other Bills, we can make sure everyone is happy with the precise wording. I had originally planned to bring the Bill into the House two months ago but I agreed to hold off at the request of the Government side to allow time to consult and collaborate on it. We have been doing that over the past two months but we must move on because this is an issue of immediate and pressing concern to so many people.

Under equality legislation, it is illegal for an employer to discriminate against an employee or potential employee on grounds including gender, civil status, family status and sexual orientation. However, section 37(1) of the Act provides an exemption for religious, educational or medical institutions under the direction or control of a body established for religious purposes. It is widely considered that this section could be used to justify discrimination against an employee simply because he or she is lesbian, gay, bisexual, transgender, separated, divorced, cohabiting outside marriage or an unmarried mother. Some people say this is a hypothetical problem and question whether such discrimination, even though it is legal, could take place. This week, we learned of an investigation by the Ombudsman for Children into a school in Tipperary that refused to enroll a 16 year old girl on the grounds that she was pregnant. Citing his duty to protect the honourable majority of his pupils, the principal stated the school should not be blamed for having a "moral code". If such prejudice can be used against a teenage girl who wants to finish her education, I have no doubt that it can also be used to deny someone a job or promotion in a school or hospital.

People are at any immediate risk and putting this issue on the long finger will leave them vulnerable. GLEN and the teacher unions believe section 37(1) of the Employment Equality Act is causing real problems for lesbian, gay, bisexual and transgender, LGBT, teachers. GLEN states that as a result of this provision, employees or prospective employees, whose lives may possibly be interpreted to be contrary to the religious ethos of some faiths, have lived in fear for their jobs and their prospects within employment. They acknowledge that no case has been taken under the Act but point out that it serves as a daily chill factor for LGBT teachers.

Employees and potential employees of religious-run hospitals are in the same position. According to Dr. Leslie Hannon of Gay Doctors Ireland, "The weight of laws like these impress upon gay doctors the type of self-censorship and 'discretion' that enable and propagate homophobia in general, simply because they serve to downsize us and make us invisible". There are many gay teachers and doctors working in our schools and hospitals but, unfortunately, too many of them feel the need to hide something as intrinsically important as who it is they fall in love with from their colleagues.

I will give an example of such a teacher. Mary works in a Catholic primary school and has been working in the same school for the past 20 years. She is a great teacher and her pupils love how she makes every lesson interesting. Parents are impressed by how well their children are doing in her classroom. The school principal appreciates how she is always willing to go beyond the call of duty and help out with after-school activities. She does a great job of preparing her class for their communion day. Mary loves teaching and it is all she ever wanted to do but she has never been fully comfortable at school. She lives with the constant fear of her colleagues finding out that she is a lesbian because section 37 could be used to take action against her. She hopes the school would not do so but feels it is safer not to test it. When other teachers talk to each other about their families and what they did at the weekend, Mary is very quiet in the staff room. She makes a point of only socialising with her long-term partner outside the town that she works in. Mary is determined that her colleagues will only learn of her relationship with her partner when she brings Susan to her retirement party.

Over the past couple of months, I have received e-mails from many teachers like Mary welcoming this Bill. All make the same point that they do not want any special treatment but want to be judged on the same basis as everyone else, namely, on ability in the classroom rather than on someone else's perception of their private lives. This Bill will ensure that happens.

Freedom of religion is an important constitutional value and one I fully respect but it should not be used to permit discrimination that would be unacceptable and illegal in any other employment. It should not be allowed to significantly reduce job opportunities for an entire group of people. If the Bill is enacted, religious-run institutions will still be entitled to insist that staff members demonstrate respect for the ethos in the workplace and not actively seek to undermine it but they will not be able to dismiss, discriminate against or refuse to hire people just because they do not approve of their private lives. The Bill was drafted to achieve an appropriate and constitutionally proportionate balance between the right of an institution to uphold its ethos and the rights of the individual teacher. It has been strongly endorsed by GLEN, which called on the Government to support it. It has also been welcomed by the INTO lesbian, gay and bisexual group, whose chairman, Cathal O'Riada, has said that removing the ability for schools to discriminate would be an enormous and immediate relief for gay teachers. Representatives from the ASTI and TUI also addressed a briefing session on the Bill for Members in Leinster House and urged Members to support it. At the same session, a representative from BelongTo spoke of the impact that discrimination against gay teachers has on young people by forcing teachers to hide their true identities and robbing young LGBT people of role models they need at a difficult time in their lives.

Fianna Fáil has taken the initiative in putting forward this Bill. As a republican party, we must be committed to fighting discrimination in all forms. This should not be a party political issue. The Bill is in line with a commitment in the programme for Government and is in keeping with the progressive approach the Minister for Education and Skills, Deputy Ruairí Quinn, has taken to the issue of tackling homophobic bullying in schools. The debate on Second Stage discusses the principle of tackling discrimination. We are not here to sign off on the final wording and, in any case, we cannot change the wording today. That will take place on Committee Stage. I indicated to Members that I am happy to see the Bill amended on Committee Stage. Two specific amendments need to be made, one of which is to include gender and family status as grounds. The wording is not perfect but that is not the point. Two weeks ago, we sat through six or seven hours of Government amendments to the Education (Amendment) Bill because it wanted to tidy up the Bill. We are not here to sign off on the final wording of the Bill. We are here to discuss the principle and whether, as a House, we can send out a united message that we want to deal with the principle. We can sit down on Committee Stage and take input from legal advisers and others and ensure that everybody is happy with the final wording. Obviously I have had the wording cleared by two lawyers who are satisfied and have read the case law, the original Article 26 reference in the Bill and other related case law on the freedom of religion. They are happy that it strikes a proportionate balance because it leaves the protection for the religious ethos of the institution and simply qualifies that religious ethos cannot be used to discriminate against somebody, their inherent personal characteristics or their private lives outside of the hospital or school where they work.

Before Members commence their contributions I want to clearly state that I am happy to work with anybody on any side of the House to finalise the wording and ensure that everybody is happy with it before we go any further. This is an important issue and I genuinely think that all parties should be willing to put aside their differences and send out a united message. The Bill addresses a genuine fear among citizens of this State about whether they can go about their lives free from a threat of discrimination. It is not a hypothetical problem but a real issue that we, as a House, have an opportunity to change today and before the next school year commences. I hope that the Bill will receive cross-party support today, that we can all collaborate and have a final text passed through both Houses of the Oireachtas and enacted as soon as possible.

Photo of Ned O'SullivanNed O'Sullivan (Fianna Fail)
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I second the proposal and I am proud to do so. I commend my colleague, Senator Averil Power, on her work on the legislation and her ongoing commitment to the general area. I also commend her on her courage because sadly one still needs courage to bring forward legislation in this general area. We have made great progress but prejudice still exists. I echo her call to deal with the issue and that the Government side should accept the Bill by consensus from a non-confrontational and non-party viewpoint. As no amendments have been tabled I hope that the Minister will accept the entire Bill. It would be a wise decision for the Government because Senator Power's view is in line with its policy as enunciated by several Ministers from the two main parties in government. My party is often seen by liberals as not being so liberal but the facts prove otherwise. Fianna Fáil has a proud record of producing sex equality legislation from the Prohibition of Incitement to Hatred Act 1989, the 1993 homosexuality discrimination Bill, the Equal Status Act 2000 and the 2012 civil partnership Bill. All of these prove that my party is forward thinking and conscious of the needs of minorities in every walk of life.

Senator Power has highlighted that there are certain exemptions from the Equality Act in certain religious, educational and medical institutions. As she has made clear and I reiterate, we believe that such institutions are entitled to uphold their particular ethos, be it Catholic, Protestant or whatever. We also believe that these institutions are entitled to expect their employees to do their utmost to uphold the ethos in that institution and that employees have a responsibility not to subvert the ethos. However, we equally contend and affirm the rights of individuals not to be discriminated against with regard to their right to be employed on their merits only and to be free from any and all obstacles on the grounds of sexual orientation. In the real world, as a parent and former teacher, parents have only one question for the teachers in their schools and in the doctors in their hospitals. Are they efficient and good at their job? Parents are not interested in anything to do with their private lives.

I also commend the teacher unions and the medical sector for their full support for gay and lesbian employees and colleagues. This year I attended the INTO conference in Killarney and I was delighted to hear such strong support for this issues expressed by its CEO, who is in the visitors' Gallery, and by her executive and members. I commend the Minister for Education and Skills, Deputy Ruairí Quinn, who attended the conference as guest of honour and in his speech he picked up positively on those points. I am interested to hear his comments on the Bill when he speaks on Second Stage.

We continue to evolve as a caring society even though prejudices still exist. The workplace is now a much less threatening environment for minorities and the sexual bullying of teachers, nurses or doctors will not be tolerated in 2012. We have come a long way from the appalling Flynn case in Wexford many years ago when a teacher was forced out of a school simply because she was having a relationship that was not sanctified by marriage. It was a humiliating case for Ms Flynn and for all right thinking people at the time. Thankfully, we seem to have come a long way. Again, as Senator Power has said, we have the story in the mid-west of a teenage mum that I am not informed enough about to comment on other than to say that it is deeply troubling and something we must be conscious of.

To conclude, I hope that the Government will examine the legislation in a holistic and non-political way. The Senator has gone out of her way to show that the legislation is not a point scoring exercise for our party. It is just another step in a long difficult road to gain equality for everyone on the island, equality that was promised in the 1916 Proclamation.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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This is the first time that we have had two Ministers debate the same Bill together. They will share time and I call the Minister for Justice and Equality, Deputy Shatter.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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I thank Senator Power for giving us an opportunity to discuss how we can progress reform in this important human rights area. From my two meetings with her she knows that I am committed, along with my good colleague, the Minister for Education and Skills, Deputy Ruairí Quinn, to strengthening the statutory protection for equality.

My unequivocal conviction is that it is simply wrong to exclude people from employment or other opportunities in life on the grounds of gender, sexual orientation, gender identity, family status, marital status, religion, age, race, disability, race or ethnicity, including membership of the Traveller community. More specifically, it is unjust that people whose wages are paid by the taxpayer and who are employed to provide essential public services should feel intimidated or feel a need to live their lives in secret for fear that their sexual orientation or civil status or family status, for example, should lead to victimisation by an employer.

It is important, of course, that we ensure that we cover, in this proposed Bill, the full range of individuals who may be affected. Senator Power knows from my discussions with her that there are particular concerns that the Bill omits to mention family status or issues of gender. Essentially, under this Bill, the protection that, for example, should be afforded to the single mother in these circumstances would not be extended to her.

As a society we have a fundamental duty to ensure that minorities who have historically been subjected to malign discrimination are properly treated. Treating people properly means assuring them of full equality without qualifications. Equality law is an important means of positively ensuring that lesbian, gay, bisexual and transgender people can live openly, safely and honestly in society. The bright-line pledge in our programme for Government is that: "people of non-faith or minority religious backgrounds and publically identified LGBT people should not be deterred from training or taking up employment as teachers in the State".

Self-evidently, the State has a compelling human rights interest in eradicating discrimination based on social prejudice. The practical challenge for us today is how we can as a pluralist constitutional democracy commit to both equality of treatment and tolerance of and respect for religious differences. The advice available to me is that the Bill touches on issues of the profound constitutional sensitivity and importance. So we need to tread very carefully. I am unsure that this Bill as drafted would pass constitutional muster and that is a particular concern.

The test the Oireachtas faces when it legislates in this area is whether it has preserved a proper balance between the rights of religious denominations to manage their own affairs and maintain institutions for religious and charitable purposes and the rights of other citizens to equality before the law and to earn their livelihood. The courts have enunciated this test. It is important that we consider the relevant constitutional case law. In their case law, the courts have endorsed the proposition that occasions arise when it is necessary to make distinctions in order to give life and reality to the constitutional guarantee of the free profession and practice of religion. In McGrath and O Ruairc v. The Trustees of Maynooth College in 1979, Mr. Justice Henchy affirmed this view. He said that the whole point of proscribing disabilities and discriminations at the hands of the State on the ground of religious profession belief or status is, "to give vitality, independence and freedom to religion". He further ruled:

Far from eschewing the internal disabilities and discriminations which flow from the tenets of a particular religion, the State must on occasion recognise and buttress them. For such disabilities and discrimination do not derive from the State; it cannot be said that it is the State that imposed or made them; they are part of the texture and essence of the particular religion; so the State, in order to comply with the spirit and purpose inherent in this constitutional guarantee, may justifiably lend its weight to what may be thought to be disabilities and discriminations deriving from within a particular religion.

In re Article 26 and the Employment Equality Bill 1996,the Supreme Court cited this judicial opinion approvingly. In this Article 26 reference case, the court considered the constitutionality of section 37 of the Employment Equality Bill 1996, which is now section 37 of the Employment Equality Act 1998, which is the principal section the Senator's Bill seeks to amend. The Supreme Court said:

It would therefore appear that it is constitutionally permissible to make distinctions or discriminations on grounds of religious profession belief or status insofar - but only insofar - as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution.

The court acknowledged that sections 37(1) and 37(2) of that Act form an exception to the general rule against discrimination on the religious ground. The court upheld the constitutionality of section 37(1). This provision entitles an institution to give more favourable treatment, on the religion ground, to an employee or a prospective employee where it is reasonable to do so in order to maintain the religious ethos of the institution or to take action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution. The court said that the use of the words"reasonable" and "reasonably necessary" implies that the test is to be an objective one and that the matter is to be resolved on a case to case basis. The court also upheld the constitutionality of section 37(2), which entitles an institution to prefer a particular candidate on the grounds of his or her religion if in fact being of that religion is an occupational qualification for the post in question. Thus, the court took the view that the Oireachtas had achieved a correct balance between the right of free profession and practice of religion on one hand and the right to equality before the law and the right to earn one's livelihood on the other.

It is important to note that the Constitution does not state that religious rights must always trump equality rights. Freedom to practise religion is subject to the requirements of public order and morality. However, we may reasonably infer from the Irish constitutional case law that action by the State that burdens a religious practice must be justified by a compelling public interest. The burden must be reasonable, proportionate and not arbitrary.

The competing rights in this area include freedom of religion, freedom of assembly, right to privacy and to earn a living, freedom of expression and conscience and the right to freedom from harassment and discrimination. The constitutional obligation on the State to vindicate the personal rights of citizens is also important.

Thinking aloud and out of respect for the dialogue the Senator has initiated, I would invite the House to consider that, in drafting legislation to amend section 37, we might draw some important distinctions. These are not distinctions yet explicit in the Bill before us. We might distinguish, first, between behaviour that might be purposefully intended to undermine the religious ethos of an institution, on one hand, and on the other hand, possession by a person of an inherent characteristic or ground on which discrimination is prohibited, for example, gender, sexual orientation. Second, we might also distinguish between an autonomous religious institution and public services that are delivered in a partnership between State and religious-controlled institutions, particularly where the religious institution is the de jure employer, but the State pays the salary. Making these distinctions might enable us to strike a constitutionally appropriate balance between freedom of religion and the right to equality in the context of publicly-funded educational and medical services.

We should assess the feasibility of an approach to amending legislation on the following lines. Section 37(1) could remain unchanged in respect of wholly autonomous religious institutions. However, for educational and medical institutions, we might provide that first, more favourable treatment on the religion ground as per section (37(1)(a), for the purposes of this section cannot be based on a person's characteristics under one of the other grounds; second, reasonable action to prevent an employee or prospective employee from undermining the religious ethos of the institution may only be taken where an employee actively undermines or seeks to undermine, or where there is a reasonable belief based on demonstrable evidence that a prospective employee would so undermine or seek to undermine, the religious ethos of the institution concerned; and the section would be without prejudice to a person's constitutional right to privacy or freedom of expression. The crucial aspect would be to ensure that the power of the institutions to differentiate between employees or prospective employees should only apply where there is a real danger for the institution, based on evidence. This might include if the person acts with the conscious purpose of directly undermining the employer's core religious beliefs or dogma; or if it is a genuine and demonstrably necessary occupational requirement of the employer that the employee act in a way consistent with the employer's religious beliefs. The provision might specify the specific considerations that must be weighed in arriving at this determination, including, for example, whether the employer's action is rationally and strictly related to the employer's core beliefs or dogma. One might also balance the consequences for the person, in particular in relation to his or her rights to dignity, equality, self-determination, self-expression, social life, and privacy; and also the consequences for the employer should the distinction be allowed or disallowed.

These are my current and preliminary ideas on how reform might be approached in a manner that is constitutionally sound. I consider that a more extensive consultative process and formal assessment of the options that might be before us should be undertaken. Last October, I announced plans to merge the Human Rights Commission and the Equality Authority in order to create a new and enhanced Irish Human Rights and Equality Commission. One of its functions will be to advise Ministers and the Government on new legislation. I expect to be in a position to publish my proposals for legislation to establish the new commission very shortly. I expect that the commission will be in place within a few months.

It would be useful to ask the new commission to consider the issues that arise in this area and how reform might be best approached in a way that does justice to the cross-cutting constitutional rights involved. Given the complexity of the issues involved and that at the heart of the issue are competing constitutional rights and questions about the constitutional obligation of the State to protect the personal rights of all citizens, in my view it is worth taking the time to ask the commission to report on its views and recommendations to the two Ministers centrally concerned, the Minister for Education and Skills, Deputy Quinn and myself as the Minister for Justice and Equality and to the House. Once the commission has reported, I commit to bringing forward Government proposals in this area early in the new year.

I reiterate that I accept the spirit of the Bill. I am proposing that the Senator would agree to defer further consideration of it until the new year, when we can return with amendments which can be fully and properly discussed in the context of a continuing Second Stage debate to ensure that the ultimate Act will be workable and which will survive constitutional challenge.

I seek agreement from all sides of the House on this measure. I ask the Senator not to divide the House on what is a very important Bill. It is vital that the Bill is a strong measure and that it is constitutionally sound. We do not wish to enact a piece of legislation which may be struck down by the courts before it can achieve the true and good objectives it is designed to achieve.

We will now travel the unusual route whereby my colleague, the Minister for Education and Skills, Deputy Quinn, will address the House.

Photo of Ruairi QuinnRuairi Quinn (Dublin South East, Labour)
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If I may first mark this unique occasion by saying it is a testimony to the respect and the commitment to this matter of both the Minister for Justice and Equality and myself.

I thank Senator Power for affording the Oireachtas the opportunity to debate this legislation. Our agreed programme for Government states that lesbian, gay, bisexual and transgender people should not be deterred from taking up employment as teachers in this State. I know it is with the spirit of that commitment in mind that Senator Power has tabled this constructive legislation. I have had many conversations relating to this matter in recent months with Senator Power as well as with Senators Bacik and Zappone and I have made my views and those of the Government known to teachers and to the public, as was said in a previous contribution. I will repeat the sentiment expressed by the Minister, Deputy Shatter, lest there be any doubt - it is the position of this Government that we will ensure that discrimination against LGBT people, or against single mothers, will be brought to an end.

The society in which we live has undergone a seismic shift in recent decades. The changes we have witnessed touch on all aspects of life - political, social, economic, cultural and educational. The Ireland of today is a far more diverse, open and questioning one than that of a generation ago and certainly of the one in which I came of age. This brings with it exciting opportunities. Diversity is good for society. It fosters new ideas and fresh thinking. It creates the possibility to share in each other's worlds, to gain new perspectives and, most important, to learn. It also creates its own challenges. One of those challenges is the issue we are debating today. How do we balance the rights of those who wish to receive a denominational education with the rights of those employed within the schools system? The role of the churches in the provision of education in Ireland is well known and has been a part of the formal system of education since its inception.

With the establishment of the primary school system in 1831, schools were recognised by the State, largely under the patronage of the different Christian religious denominations. Even now 96% of education provision at primary school level is delivered in a Christian denominational setting. There have, however, been increasing demands to make available other forms in which education is provided. The recognition of gaelscoileanna and multidenominational schools demonstrate a commitment by the State to meet this demand by providing alternatives to what was the traditional approach.

When I published the report of the advisory group to the Forum on Patronage and Pluralism in the Primary Sector last month, I pointed to the need for the primary school system to adapt to the needs of a more diverse society. Despite the many societal changes I have talked about, many Irish parents continue to wish to have their children educated in an environment supported by a denominational religion, which is entirely their right. This is a valid exercise of parental choice and is one which is underpinned by our Constitution. The Supreme Court has ruled that the Constitution contemplates children receiving religious education in State schools to be in accordance with their parents' wishes. It also recognises that parents have a right to have religious education provided in schools that their children attend.

Given this backdrop, what is a school to do where a member of its staff overtly rejects the ethos it is mandated to uphold and deliver for its students? How is it to behave if it has a genuine belief that appointing a prospective employee could lead to the undermining of the characteristic spirit which is the hallmark of the school? These are legal questions which must be considered as part of this debate, and questions which must be aired in public. As against this, there are the rights of teachers and other school staff. Principles of equality before the law and the right to earn a livelihood are also enshrined in our Constitution. In a republic, we must acknowledge that all citizens are free and equal before the law, and those rights must be given recognition in all of the laws created by this State.

There is at least anecdotal evidence to suggest that many teachers who are gay, lesbian, bisexual or transgender experience feelings of isolation and disempowerment in their work. They feel constrained in what they can disclose about their personal lives to their colleagues fearing that this will affect their career or even their daily working experience in the school. They may also fear the prejudices of parents and students. In essence, it forces many into a denial of who they are. What a sentence for life. We cannot ignore the right to be treated with dignity and respect, and brushing this issue under the carpet and choosing to ignore it is simply no answer. If we are to become a genuinely pluralist, tolerant and open society, we need to meet these challenges realistically and honestly. I thank Senator Power again for giving us the opportunity to do so today.

I do not deny that there are significant legal issues underlying this issue, to which the Minister, Deputy Shatter has already referred. A number of constitutional rights - some of them competing - arise and need to be weighed up. This will take some time. There are also cultural issues which are informed by the law but sit separately to it. How are we to foster a fully inclusive society? For example, how do we reconcile a child's right to receive education in a denominational school with a teacher's right to live by their own set of values? It behoves us all to tackle these thorny issues. There are no easy answers to this dilemma, nor should there be. Reconciling the rights of people when they interact with each other is often complex and requires a high degree of creativity, foresight, wisdom and judgment. No one person or entity has a monopoly on these attributes and I very much look forward to these issues getting the time and attention they deserve by all those who are affected by this important issue.

Today is an important day in beginning to put an end to discrimination which has been enshrined in our laws. I look forward to continuing to work with the Seanad and with the Minister, Deputy Shatter, as well as all the parties in reaching a consensus on how this matter can be legislated for.

I believe that good and honest progress has been made in recent weeks through conversations between Members on all sides of this House. This is a model of how Oireachtas work can be done and in particular how the Seanad can work. In light of this recent work, I would like to echo the suggestion raised by the Minister, Deputy Shatter, that Senator Power would consider adjourning this debate this evening, allowing for a full consultative process before responding early in the new year for the reasons that the Minister, Deputy Shatter, has set out.

Photo of Katherine ZapponeKatherine Zappone (Independent)
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I welcome both the Minister, Deputy Shatter, and the Minister, Deputy Quinn, to the House. The presence of both of them today as we debate this historic Bill put forward by Senator Power is deeply appreciated by many throughout Ireland who have advocated change in regard to section 37 of the Employment Equality Act. I also welcome members of the public in the Gallery, as Senator Power did, because many of them have been champions of that desired change. Over the years I have referred to section 37 as the inequality clause of Ireland's employment equality legislation. I wish to commend my colleague, Senator Power, on bringing forward this Bill for all of the reasons she has indicated to us today. By doing so, she has demonstrated not only her political acumen but also her solidarity with those whose lives have been negatively impacted by the dark shadows of discrimination and unsafety that this section has cast on so many people over the past 14 years who have worked within religious institutions delivering public services.

My spouse, Dr. Ann Louise Gilligan, was one such individual. She had to face head-on the shadow of discrimination and unsafety the day she decided with me to take the Irish State to court because of its refusal to recognise our Canadian marriage. At the time she was teaching in St. Patrick's College, Drumcondra, one of the colleges of education that teaches teachers and the manager of that college is the Archbishop of Dublin. Though her action could be interpreted as undermining the religious ethos of her employment, Dr. Gilligan decided to do it anyway, carrying though it did a heavy threat of financial insecurity, professional loss and the culture of prejudice that section 37 imposes on her and thousands of others throughout our land. This section requires change.

Instead of adding further subsections to the Employment Equality Acts, I suggest it is more effective and just to delete the problematic subsection. My principle is that no one should be in the shadow of this section on the basis of his or her identity, and that is the principle I put forward. I will outline my reasons for this proposal, of which there are three. First, I think a religious ethos is adequately protected already. As the Ministers have both said, it is an important balance to strike between protection of an institution's religious ethos and the rights of an employee to pursue their career without fear and discrimination. Religious ethos is protected by sections 16, 25, 37(1)(a) and 37(2) of the Employment Equality Acts and by a number of other laws. Section 37(1)(a) allows an institution to give preference to members of its own faith for a job, a promotion or for particular duties. Sections 37(2) and 25 permits all employers to treat people differently where there is a genuine and necessary occupational requirement. All of these sections are an adequate safeguard to the religious ethos of an institution. Taken together, these provisions also reflect the exceptions which are permitted under EU law. Section 37(1)(b) goes beyond that and, is in my view, unjust.

My second reason is to question if section 37 is compliant with EU law. It would appear we are not currently compliant with EU law in a couple of ways. It is not clear whether section 37 permits discrimination based on a person's gender in order to protect the religious ethos of an institution. I say this because section 37 does not apply to the part of the Act, namely, Part III, which contains provisions to protect people against gender discrimination. Thus section 37 does not appear to be compliant with the EU recast directive of 2006 which does not allow us to discriminate for any reason on the basis of someone's gender.

The EU framework recast and race directives prohibit discrimination with regard to sexual orientation, disability, age and race in addition to gender. These are categories that refer to people's identities first and foremost as distinct from their behaviour and this is a similar distinction to the one made by the Minister, Deputy Shatter, in his remarks. Section 37(1)(b) in its current form permits discrimination against people on the basis of their identities. A European Commission report expressly states section 37(1) as it stands is broader than allowed for in the framework directive. To discriminate against someone's identity if she is a lesbian, disabled or older is not reasonable because one's identity is irrelevant to how one performs the job of teaching young people or caring for the sick.

Who is still not protected by the Bill as tabled by Senator Power? The Bill does not cover everyone affected by the legislation. Even if a person cannot be discriminated against on the basis of their gender to protect religious ethos, although I suggest this is not the case, it is sometimes difficult to predict which ground of discrimination is applicable in some circumstances. For example, a married heterosexual woman or a lesbian woman who becomes pregnant through assisted reproductive technology could be regarded as undermining the religious ethos on the basis of having a disability as opposed to on the basis of her gender. Since this would be a form of disability discrimination she would not be protected by the proposed Bill or by section 37 as it stands. Singling out two, three or four of the nine equality grounds for particular treatment in the context of the Bill could be seen as implying it is acceptable for an institution to discriminate against an employee on one of the other grounds, for example, a pregnant woman or the partner of a pregnant woman who is covered by the gender ground, a person who is HIV-positive who is covered by the disability ground or transsexual person who is covered by the gender and disability grounds. Given that we do not have the definition of gender identity as yet in Irish legislation, the gender ground under the equality legislation covers only transsexual people and not transgender people. Only a repeal of section 37(1)(b) can offer full protection to all people.

Photo of David NorrisDavid Norris (Independent)
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Hear, hear.

Photo of Katherine ZapponeKatherine Zappone (Independent)
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The Irish Congress of Trade Unions, the INTO, the Irish Nurses and Midwives Organisation and the Equality Authority, some members of which are present, all recommend deletion of section 37(1)(b). At this point in Ireland's history, in 21st century Ireland, the section should not be part of our laws.

Senators:

Hear, hear.

Photo of Paul BradfordPaul Bradford (Fine Gael)
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I wish to share my limited time slot with Senator Jim D'Arcy.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Is that agreed? Agreed.

Photo of Paul BradfordPaul Bradford (Fine Gael)
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I thank Senator Power for tabling the Bill before us this afternoon. Certainly it raises a challenge for all of us. I did not come here with a prepared script or defined views but I listened with interest to the speakers. Senator Power's challenge to us is high and demanding and the bar has been raised by the very interesting questions and concerns raised by Senator Zappone. The initial responses of the two Ministers present, and I acknowledge the unusual political situation we have this afternoon, were considered, fair and balanced. The word "balanced" must be at the heart of our response to the Bill and our more long-term response to the legislative situation which has been outlined.

All of us claim to live in a modern republic. We must also aspire to live in a moderate republic where respect and generosity are at the core of all we do by way of law and politics. In responding to what Senator Power has proposed, we must try to keep this balance to the fore. A sentence from the response of the Minister, Deputy Quinn, sums up the situation. He stated there are no easy answers to this dilemma nor should there be and reconciling the rights of people where they interact with each other is often complex and requires a high degree of creativity, foresight, wisdom and judgment.

It is also a challenge for us to get involved in the debate to bring about a fair, balanced and just solution. As has been outlined, people who operate religious-run institutions have a particular view of society and under the Constitution have particular entitlements to practice in a certain fashion. However, those who live outside this scope must also be respected and constitutionally protected. I would like to come up with a simple solution but I cannot do so. However, I look forward to engaging in the debate. If we keep generosity, fairness and respect at the core of what we do politically, we will resolve this issue.

Senator Zappone raised questions beyond the confines of the Bill but which are equally valid and from which we cannot run. Perhaps if she was not here this afternoon it would be easier for us to respond to what Senator Power stated but Senator Zappone's comments are very pertinent and very much part of the ongoing debate and they cannot be ignored or brushed aside. It has probably been the tradition of Irish politics that we generally try to kick matters to touch and brush them under the carpet but we cannot continue to do so.

While I am thankful to Senator Power for the presentation of her views and the Bill, the Ministers are outlining a response which will allow all of us to work with her to bring about a solution based on fairness. I would not like to see the House divide on this issue this afternoon. Yesterday, when we debated education we saw the Seanad at its best where genuine fair debate can bring about the type of changes and solutions we require. I ask the Senator to bear with us for a few crucial months and work with us and we will get it right.

Photo of Jim D'ArcyJim D'Arcy (Fine Gael)
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I commend Senator Power on bringing forward the Bill. I have had many discussions with her and I support the Bill. Senator O'Sullivan stated some people in his party would not be regarded as liberal and it is the same with mine. However, this is not about liberalism; it is about justice.

Photo of Ivana BacikIvana Bacik (Independent)
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The liberals are on the phone.

5:00 pm

Photo of Jim D'ArcyJim D'Arcy (Fine Gael)
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I will switch it off.

I recall the words of Fidel Castro, not that I am a supporter. He stated he did not have a liberal bone in his body but that he believed in justice. I do not know how true this is but he said it. I also believe in justice and I hope people would not be discriminated against when going for a job or in employment on the basis of gender or civic status. I recall when I went for a job in a religious school 30 years ago and I was before the Sanhedrin of three brave priests who asked me whether I thought someone with no religion could teach religion in schools. I was going for the principalship and I knew it was the defining question. I stated such a person could do so and I got the job. My friend who also went for the job answered "No" to that question and stated he knew from the body language that he was gone. Even 30 years ago people could make judgments based on one's ability to do the job. We must move forward and ensure it is on a more steady basis.

This brings me to a point made by the Minister for Justice and Equality. He wants us to be a little careful because the Bill touches on issues of profound constitutional sensitivity and importance. I do not think the Minister would say this lightly.

To judge from the fact he is in support of the spirit of the Bill, the Minister wants Members to hasten slowly. He wants them to take their time and come up with a long-term solution to this issue and I ask Senator Power to hold this Bill,based on the fact it is her Bill. Moreover, if I understood the Minister correctly, I am delighted to learn it will continue to be so. As I told her the other day, my main concern was that it would continue to be her Bill, because she deserves to bring it through the Seanad. I hope to be able to offer my full support to the Bill, with amendments. Finally, I note the phrase "early in the new year" is somewhat akin to Samuel Beckett's book, Malone Dies. I seek a specific date in this regard.

Photo of David NorrisDavid Norris (Independent)
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Hear, hear.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Senator Norris has six minutes.

Photo of David NorrisDavid Norris (Independent)
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First, I commend Senator Power, as it comes as a great relief to me not to be the person introducing such legislation, as well as to discover I no longer am the only gay in the village. I note another one has joined from the Minister's party in recent days, a development on which both he and his party must be congratulated. I also commend Senator Power on her flexibility. She has indicated she is prepared to have the Bill amended and will not press it further. She has started the process and discussion and a number of the Minister's comments have been extremely constructive and helpful, albeit not all of them, a point to which I will return in a minute, as I remember very well the cases he has cited. However, I make the point that people are afraid and have grounds to be so for as long as the sections under discussion exist. I was a Member of the House in 1998, when these provisions were put through by a very fine Minister for Equality and Law Reform, Mervyn Taylor. He maintained that while there was no constitutional objection, it was politically impossibility to get the equality legislation through because of the conservatism within all the political parties, that this was the maximum achievable and it would be necessary to continue to discriminate against gay people. I believe that Joe O'Toole and I were about the only two Members who voted against it on that basis. This demonstrates how far we have changed and thank God for that

I also remember the case law that applied in the neighbouring island and how dangerous it was. Approximately 15 years ago, a young fellow, who was employed as a gardener in a public school in Scotland, attended a gay rights rally as a member of the public. Unbeknownst to himself, he was photographed and his photograph appeared in the local newspaper, after which he was dismissed simply for attending a rally. While he had never attempted to subvert anything or to attack the ethos, he was dismissed and that case was upheld in the courts in Britain. There is an impact on bullying and Members should not fool themselves that this has stopped. I am delighted there are people from BeLonG To in the Visitors Gallery, although I cannot see everyone terribly well. However, I attended the opening of the BeLonGTo premises 18 months ago by the former Minister of State, Barry Andrews, at which a 16-year-old youth told of how he had put up the officially sponsored anti-homophobic bullying posters in a Christian Brothers school in north Dublin city and was forced, in the presence of his classmates, by the brother in charge to take them down. His life was made so intolerable that he was obliged to leave the school. This still is going on. Perhaps five or eight years ago, I launched a book about bullying. which included a section on homophobic bullying. At that point, 80% of schoolyard bullying included a homophobic element and 80% of cases were not addressed because teachers were afraid. One key to that fear is section 37, a section I would like to see removed. It is also very important to consider the question of the equality tribunals because the existing five rights fora are being subsumed into a single two-tier system. My concern is the unique features of employment equality cases do not appear to have been given appropriate attention under this new arrangement. Perhaps the Minister will confirm the welcome reports that equal status cases will not be heard before the District Court as it is very important that they do not do so.

As for the Minister's speech, he spoke of the rights of religious denominations to manage their own affairs and so on. I fully agree but as an Anglican, I am ashamed that it was my church, as well as the Roman Catholic Church, which insisted on denominational schooling. As a Christian, I do not believe that is proper and is one factor that has led to the situation in the North of Ireland. The Minister's cited the case of McGrath and Ó Ruairc v. The Trustees of Maynooth College. While I am unsure whether the Minister remembers the case, I remember it extremely well and I know the reason they were fired. They were fired because they left the priesthood and I believe one of them got married. They were teachers of history and that judgment was a disgrace. I do not care whether it came from the Supreme Court or from where it came as it was outrageous and certainly should be superseded. I certainly doubt whether that could happen in Maynooth now because the college has been separated into a pontifical university and a kind of secular institution. Mr. Justice Henchy was responsible, which just shows that an excellent judge can give a bad judgment. He gave a very good dissenting judgment in my own case. I welcome the Minister's helpful suggestions in outlining areas in which shading and nuancing must be included in the Bill and I believe Senator Power accepts this point.

I wish to make one comment on the contribution of the Minister for Education and Skills, Deputy Quinn, who stated, "I will repeat the sentiment expressed by the Minister, Deputy Shatter, lest there be any doubt - it is the position of this Government that we will ensure that discrimination against LGBT people, or against single mothers, will be brought to an end". If that is the case, I wish to see some action. For example, I refer to the most disgraceful example of child abuse perpetrated by the last Government, with the collaboration of a fair number of Members of this House, which allowed the non-recognition of the rights of children in same-sex marriage. It is the single provision that otherwise blights that otherwise excellent legislation. I was glad to see the Minister nodding and I hope it was in agreement. I hope this issue will be addressed because it constitutes a violation of the rights of children. While I note this commitment has now been made by two Ministers, let them live up to it. I do not believe there will be a Division in the House this evening and I believe this represents an important stage in the development of human rights. However, as a believing and practising Christian, I do not believe it goes far enough and would like to see the whole thing gone.

My final comment is that I was fascinated to hear Senator Jim D'Arcy state that he applied for and got a job even though he thought that someone who was an atheist could teach religion. I do not believe this because I believe children can pick up on sincerity. Children will know well if someone obviously thinks it is complete and utter poppycock. I would not have got the Senator's job because I would have agreed with the other fellow. I would have said the answer was "No", that such a person should teach geography or whatever and that someone else should be brought in. While one should not discriminate against such a person, I would not wish to be told something was true by someone who does not believe it, because I can smell dishonesty. Consequently, I think the Senator got the job on the wrong pretext.

Photo of Jim D'ArcyJim D'Arcy (Fine Gael)
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It is not about what I believed but about what they believed.

Photo of Ivana BacikIvana Bacik (Independent)
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With the permission of the House, I wish to share my time equally with Senator Moran.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Is that agreed? Agreed.

Photo of David NorrisDavid Norris (Independent)
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On a point of order, may I state how delighted I am that the decision of the Committee on Procedure and Privileges has been undermined so effectively?

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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That is not a point of order. I call Senator Bacik.

Photo of David NorrisDavid Norris (Independent)
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Two days ago, I received a note to the effect that one could not share time on Second Stage.

Photo of Ivana BacikIvana Bacik (Independent)
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As this Bill relates to both justice and education, the two spokespersons are speaking, just as the two Ministers shared their time. Consequently, this is entirely in keeping with the Committee on Procedure and Privileges rule.

Photo of David NorrisDavid Norris (Independent)
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One would know the Senator is a lawyer with a Trinity education.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Senator Bacik, without interruption.

Photo of Ivana BacikIvana Bacik (Independent)
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I hope this has not eaten into my time.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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It certainly has, by seven seconds.

Photo of Ivana BacikIvana Bacik (Independent)
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I welcome the Minister for Education and Skills, Deputy Quinn, and the Minister for Justice and Equality, Deputy Shatter, to the House. I also welcome this development whereby two Ministers are dealing with a Bill that clearly cuts between two different Departments, which is a welcome initiative. I also welcome to the Visitors Gallery members of groups such as GLEN, Marriage Equality, BeLonGTo and others, which have campaigned for a change in the law. I agree with the sentiments expressed by others. I commend Senator Averil Power on introducing this Bill and on her eloquent contribution on the need for it. We are all agreed that section 37 of the Employment Equality Act as currently drafted is untenable. It is a mandate to discriminate. As stated so eloquently by Senator Zappone, it is an inequality clause which upholds the principle in the appalling judgment in the Eileen Flynn case. Ms Flynn, a teacher at the Holy Faith Convent in New Ross in the mid-1980s, was sacked from her job when she became pregnant outside of marriage. The teaching unions have condemned that principle, enabling a religious-run educational institution to discriminate against a person it believed was undermining its ethos, as untenable in a modern society. It should be repealed. Like Senators Zappone and Norris, I would much prefer that this section be deleted, thus ensuring no exemption from discrimination is afforded to religious run institutions.

I commend Senator Power on taking the initiative in this Bill, which is drafted in a minimalist way and does not cover all people currently facing potential discrimination. Senator Power and I have had many meetings on this issue.

Photo of Averil PowerAveril Power (Fianna Fail)
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The Senator knows I am happy to accept her amendments.

Photo of Ivana BacikIvana Bacik (Independent)
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I drafted amendments that would have extended the reach of the Bill to cover other grounds of discrimination, including gender, family status - which deals with the Eileen Flynn issue - and disability. Having listened to the Minister for Justice and Equality, Deputy Shatter, and Minister for Education and Skills, Deputy Quinn, I accept that there is a need for more time and consideration of the correct framing of legislation to deal effectively with this exemption, which we are all agreed should be removed. I particularly want the Minister, Department and commission to have time to consider the more radical proposition put forward by Senator Zappone, namely, that the offending section in its entirety be deleted. This would be by far the preferable model if it would pass constitutional muster.

I agree with others that there is immense goodwill on the Government side in relation to this Bill. The Minister, Deputy Quinn, has publicly stated his support for the spirit of it. All of us support it in spirit. It is in the spirit of goodwill and of working together in the Seanad that we would prefer no division on this matter, although I accept that is Senator Power's prerogative. It would be a pity if we were to divide the House on an issue on which we are all agreed, in particular in light of the firm commitments given. A historic precedent was set in the Seanad today in terms of acceptance by the Minister for Social Protection, Deputy Burton, of a Private Members' Bill, the Civil Registration (Amendment) Bill 2012, to legalise humanist weddings, which I introduced. That Bill will now go before the Dáil as a Government Bill. Another Private Members' Bill, which I introduced, on the prohibition of female genital mutilation was accepted in spirit by former Minister, Mary Harney. I did not call a vote on that Bill and was glad I did not do so because the Government investigated the matter further, following which it produced a much more robust Bill which is now an Act. That is the way the Seanad works best. I welcome Senator Power's initiative. It would be great to see this legislation go forward as a Government Bill. We will hold the Minister to the introduction of his proposal in January.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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I allowed the Senator extra time, so Senator Moran has three minutes in which to make her contribution.

Photo of Mary MoranMary Moran (Labour)
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I, too, welcome the Minister for Justice and Equality, Deputy Shatter, and Minister for Education and Skills, Deputy Quinn, to the House. That they are both here for this debate indicates how serious they are about tackling the issue raised in the Bill introduced this afternoon by Senator Power. I also welcome the visitors in the Gallery mentioned by Senator Bacik, including the president of the Irish Nurses and Midwives Organisation.

I welcome the principle of the Bill introduced by Senator Power and congratulate her on bringing it forward. It provides a welcome opportunity to address the issues in policy terms, which debate it is hoped will establish cross-party support for the principle of the reform. I congratulate Senator Zappone on her powerful and evocative contribution this afternoon. I wholeheartedly agree with her that we are perhaps not going far enough and that the section concerned needs to be deleted.

I welcome the announcement by the Minister, Deputy Shatter, that he will refer the matter for advice to the new human rights and equality commission when established. Following its report, I look forward to the Minister returning to the Seanad in the new year with more developed proposals. I, too, would welcome a date in this regard. It is hoped Senator Power will take this into consideration and will agree to return the Bill to the Order Paper until the New Year.

We are all unanimous that discrimination against people on the basis of religion or sexual preference needs to be removed and that all people have equal right to employment, free from harassment and discrimination. As a teacher for many years, I witnessed how our education system evolved over the past decade. We now have students from different religions and countries in our schools, whose cultures and beliefs are incorporated therein. It is great to see our children embrace children of other religions, faiths and cultures.

Yesterday, I raised the case of the 16 year old who became pregnant and was refused entry to a school because according to its principal it was against the ethos of the school to admit her. We are all agreed that this type of discrimination needs to be removed immediately and that all children should be entitled to an education regardless of colour or creed. The programme for Government states that people of non-faith or minority religious backgrounds and publicly identified LGBT people should not be deferred from training or taking up employment in the State. I commend the Minister, Deputy Quinn, on his recent announcement of his intention to develop within a few weeks proposals for Government on this issue.

As I stated, I support the principle of Senator Power's Bill. However, I am concerned that it might not be fully compatible with the Constitution. In addition, there may be better ways of doing this that could eliminate discrimination more completely, as pointed out by Senator Zappone. I agree with the sentiments expressed by Senator O'Sullivan that education, particularly in schools, is based on what children learn. As a parent and former teacher, I totally agree with the sentiment that it is what children learn, rather than the beliefs of those teaching them, that is important.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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I am tempted to give up when I hear the Constitution invoked on a Fianna Fáil Private Members' Bill. The Constitution has been invoked as a reason not to accept every Bill ever introduced in this House by Fianna Fáil. It is about time that stopped. This Bill has been drafted in light, in particular, of the reference to the Supreme Court and the Employment Equality Bill in Article 26 of the 1997 Irish reports, which refers to balance. That Article states: ".....it is constitutionally permissible to make distinctions or discrimination on grounds of religious profession, belief or status insofar, but only insofar, as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution." It is not necessary to discrimination against homosexuals in order to guarantee the free profession and practice of religion as provided for in the Constitution. That is as clear as day.

Last summer, the Minister of State, Deputy Brian Hayes, while patting us on the head for having introduced a Private Members' Bill said the Government could not for constitutional reasons support it but would within a few weeks take action in respect of mortgages. However, nothing has happened. The Title of this Bill is: "Bill entitled an Act to amend the Employment Equality Acts, 1998 to 2011 and thereby extend the general protection against discrimination on the basis of sexual orientation, or civil status in, and in connection with, employment, vocational training and membership of certain bodies." If one supports the Bill, one votes "Yes". If against it, one votes "No". One does not pat people on the head, saying well done, nice Bill but we cannot support it.

The Minister, Deputy Quinn, made the ludicrous statement earlier that conversations in the Seanad is how things get changed. That is not true. It has not worked in this Seanad in respect of the many Private Members' Bills put forward by Fianna Fáil, all of which the Government supported but voted against in accordance with the instructions of party leaders. On the forthcoming referendum, Fianna Fáil was down in the opinion polls last week because of the comments of the Minister for Finance, Deputy Noonan, in regard to the famine. The Government needs to take Fianna Fáil more seriously if it wants to win the vote on the referendum. We are fully on board but our membership do not like us being continually patted on the head and told well done. If the Government supports this Bill it should vote for it. If not, it should vote against it.

I, and my party, wholeheartedly support this Bill because it is progressive and republican legislation. It is a Fianna Fáil Bill reflective of Fianna Fáil policy. In the 21st century, Ireland must stand firm in its opposition to discrimination of any type. It is unconscionable that a teacher, nurse or doctor could be fired, or not hired in the first place, because he or she is gay, lesbian, bisexual or transgender. The fact the various staff unions are heavily engaged in this issue shows how important it is to them. This Bill is a further step along the road to ensure all teachers and other professionals are treated equally and that their roles are based on capacity and not the perceived options of society of a person's private life.

President Lyndon Johnson, a one-time conservative who brought in some of the most far-reaching civil rights legislation, said in regard to the Voting Rights Act:

This time, on this issue, there must be no delay, or no hesitation, or no compromise with our purpose. We cannot, we must not, refuse to protect the right of every American to vote in every election.

Hubert Humphrey, in 1948 when there was a choice in his party as to whether to go with civil rights or the state's rights, said:

There are those who say to you - we are rushing this issue of civil rights. I say we are 172 years late.

That spirit and that urgency to protect civil rights contrasts with the Minister's contribution today. Because this is a Fianna Fáil Bill, he is talking about delay, procrastination and postponement. I commend my colleague, Senator Power, who is doing no more than her duty, as the main spokesperson on education in the Seanad for Ireland's main republican party, in putting forward what is republican legislation. If she calls a division, I urge Senators to support the legislation and not to vote "No". What message would a "No" vote send to gay, lesbian and bisexual people? It would send out the message that they are willing to sacrifice human rights for political expediency. That is a very sad message indeed.

I urge Senators to support this Bill. It may not go as far as Senator Zappone wants it to go but I do not want to go as far as that because I believe in the rights of religious organisations and religions to uphold their ethos in their institutions. However, it is not necessary to discriminate against gay people in order to uphold their ethos. Anyone who thinks it is should read the Roman Catholic catechism which talks in different terms than most people would presume about the Catholic Church in regard to gay people.

I support this Bill and urge the Government to stop patting us on the head, asking us to withdraw it and saying it might progress it next year. I have had enough of this. We hear this time and again in regard to Fianna Fáil Private Members' Bills. The Government should be serious. Senators should read the legislation and if they are for it, they should vote for it and if they are against, they should vote against it.

Photo of Caít KeaneCaít Keane (Fine Gael)
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I am delighted to speak on this Bill and commend Senator Power on bringing it forward. I am delighted to speak after Senator Byrne who asked us not to pat him on the head, etc. l remind him that this legislation is long overdue. He said 172 years. Who was in power last? Why was it not introduced when it was very necessary and when the Equality Authority, society and all the groups in the Visitors Gallery called on the Government to change the legislation? As Senator Bacik said, it goes back to the Eileen Flynn case in the 1980s. That is how long Fianna Fáil had to do it but it did not do so.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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I was not born.

Photo of Caít KeaneCaít Keane (Fine Gael)
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To the best of my knowledge, not one Fine Gael Private Members' Bill was accepted by Fianna Fáil. Mary Harney accepted the legislation brought forward by Senator Bacik on female genital mutilation. That is Fianna Fáil's record, so Senator Byrne should not lecture me or anybody on this side of the House on accepting Bills.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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The family law legislation was a Private Members' Bill.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Senator Keane, without interruption. I will not allow crossfire.

Photo of Caít KeaneCaít Keane (Fine Gael)
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Senator Byrne should not accuse me or anyone on this side of the House of patting him on the head. We are serious about this Bill. I remind him that before Senator Power brought it in, it was in the programme for Government and was agreed by both parties in government. I was not going to say that in deference to Senator Power but as Senator Byrne made a political football of it, I decided to say it. It is in the programme for Government-----

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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Let us abolish the Seanad if we are just going to have conversations or-----

Photo of Caít KeaneCaít Keane (Fine Gael)
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On 11 April, the Minister for Education and Skills made an announcement, which was welcomed by the chairperson of the Equality Authority, Ms Angela Kerins, that section 37(1)(b) of the Employment Equality Act would be amended to ensure it cannot be used to discriminate against lesbian, gay and bisexual teachers. Section 37(1)(b) is not explicit in regard to gay and bisexual people but Ms Kerins stated: "It is clear that this clause has reinforced fears of discrimination against lesbian, gay and bisexual workers in religious-run institutions, for example in schools and hospitals and makes it even more difficult for such workers to be open about their sexuality."

Research published jointly by the Equality Authority and the Equality Commission for Northern Ireland in 2007 found that fear associated with section 37 has a significantly negative impact on lesbian, gay and bisexual teachers and that the presence of this provision effectively forces these teachers to avoid seeking employment in given sectors or to take up employment in conditions in which they are compelled to conceal their sexuality. That was published in 2007 and who was in power then?

I welcome the commitment given and the respect shown to Senator Power, with two Ministers coming into this House. I am only a new Senator but I think it is unprecedented that two Ministers would come into the House for an Opposition Bill and give it the support they gave it and a commitment to move it forward.

Senator Power and everybody else can rest assured that I will follow up on this and ensure it comes back to this House because it is serious legislation. The INTO has come out in support of the amendment of the legislation as well. I will follow up on this, so it will not be left to those in opposition to do so.

The Minister for Justice and Equality, Deputy Shatter, who is a man of his word, and the Minister for Education and Skills, Deputy Quinn, have given a commitment. It is also in the programme for Government. We will ensure it is followed up on. Once again, I congratulate Senator Power on introducing the Bill.

Photo of Kathryn ReillyKathryn Reilly (Sinn Fein)
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Sinn Féin warmly welcomes this Bill and congratulates Senator Power on her initiative and assure her we will support the Bill should it be pressed. We firmly believe discrimination and intolerance should be challenged and stamped out wherever it exists and that the days of loopholes and shelters for any type of ignorance should be put behind us. Lesbian, gay, bisexual and transgender teachers have the right to have their private lives respected and the repeal of archaic loopholes which allow discrimination in the name of ethos must be removed as quickly as possible. We all believe teachers should be judged, employed and treated on the basis of their ability alone.

The ending of this legalised discrimination is about more than teachers, as was alluded to by a number of speakers. The weight of laws such as section 37 impress upon gay, lesbian and transgender people the type of self-censorship which enable and propagate homophobia in general. We all know schools are where children form their identifies and learn and develop as individuals. Our legislation and legal protections need to have tolerance, diversity and equality as paramount within them.

The treatment of lesbian, gay and bisexual teachers can have a major bearing on how young gay people see themselves. Teachers are role models for school children and this is no less true of gay teachers. Young people coming to terms with their sexuality should feel comfortable in having gay role models as teachers. When young gay people see that their role models are being discriminated against, or even verbally bullied, they will be less confident and less comfortable in asserting their individual rights.

While the ethos of the school must be respected, this should, in no way, allow for discrimination against teachers because of their sexuality. This week the Minister for Education and Skills, Deputy Quinn, told of us his plans to reshape the patronage system for schools. His plans show the need for our schools to reflect the reality of Ireland in the 21st and so does this Bill. Sinn Féin welcomed his proposals as a step in modernising our education system and we do the same today with Senator Power's Bill which, like the Minister's proposal, is long overdue. We wholeheartedly support this Bill.

Photo of Aideen HaydenAideen Hayden (Labour)
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I welcome both Ministers to the House. A significant part of the debate has focused on constitutional issues. I read the Minister, Deputy Shatter's speech with interest and I listened to Senator Zappone. As I am not sufficiently au fait with the Senator's arguments to know whether they are constitutionally robust, I will not respond to them.

A wider public issue must be addressed. Recent weeks in particular have given legs to our debate. A number of Members referred to the commitment in the programme for Government that clearly stated that people of non-faith or minority religious backgrounds and publicly identified lesbian, gay, bisexual and transgender, LGBT, people should not be deterred from training or taking up employment as teachers. Religious freedom has been discussed in the context of the Constitution. Some bodies that try to protect their ethos by ensuring that the people employed by them are sympathetic to their ethos will never employ openly gay persons. A number of Catholic parents regard being gay as abhorrent and against Catholic teaching. If there is a constitutional respect for the preservation of ethos, one cannot have legislation that will ensure that some schools will employ gay teachers. I would like to say that this argument is going in the right direction. Having heard of what has occurred, though, particularly the silencing of certain theologians, I am not convinced. It may be going in the opposite direction.

There is a perception in the media that every member of the Labour Party is atheistic, anti-Catholic or whatever the case may be. I will put my views on the record. I am what one might call an Àla carte Catholic. It is not wrong to be a homosexual, nor is the silencing of priests and brothers who take opposite views to the hierarchy in Rome. Neither is it right to discriminate against an entire section of the Irish population.

I agree with the sentiment of Senator Power's legislation. It is equally wrong to be against religious teaching from an atheistic point of view. I will illustrate using a personal story. My 15 year old daughter was attending a philosophy course at a large university and was derided for having pro-Catholic views. I am not in any way anti-Catholic, but ethos is important. We have a choice to make. If there is a contradiction between constitutional rights, those being, to religious expression, to earn a living and so forth, the Irish people must make a choice. I respect the Ministers' remarks and I agree with them that we may need more time to consider the issue. However and as Senator Reilly stated, the current situation is depriving some of the children of this country of a right to be taught by people who hold the same sexual preference that they do. We are not respecting gay children, given the fact that our tradition does not respect the rights of gay people.

Difficult choices must be made. If we cannot reconcile this situation, the time has come to put the issue to the people as a constitutional amendment. If this is what it takes to do what the Government has committed to, so be it.

Photo of Rónán MullenRónán Mullen (Independent)
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I share the sentiments of respect for people's private lives and of promoting a culture of inclusiveness, which have been key hallmarks of this debate. I appreciate the respect shown by both Ministers, particularly Deputy Shatter, for the fact that there are competing values. I agree with many of Senator Hayden's comments. In particular, I was struck by her account of the culture that exists in some quarters of deriding people for their religious beliefs. This is part of the issue that we must bear in mind. We must shape our institutions and policies in such a way that people with competing aspirations can have them reconciled as much as possible.

The purpose of the Bill is to change a section of legislation that allows religious education or medical institutions to take action that is reasonably necessary to prevent a prospective employee from undermining an institution's religious ethos. As it stands, this legislation does not mention homosexuality in particular. It provides a general protection. The right currently enjoyed by religious institutions is subject to an objective test of reasonableness and necessity. We must not allow ourselves to run away or be run away with the notion that there is a blanket right in law to engage in cruel and unjust discrimination. When the Supreme Court considered this matter, not only did it find that the section was constitutional, but it considered submissions from the Attorney General on whether the legislation would be constitutional without it. I am open to correction on that last point. There is a clear issue of competing rights that must be protected.

That there have been no test cases on this issue is testament to a genuine spirit of inclusivity and getting the balance right in institutions. That people cannot point to a single injustice so far speaks volumes. When we discussed the civil partnership legislation last year and I raised the question of whether a registrar would have the right to opt out of providing certain services as long as someone else could provide them, many Senators asked me to show them a case of a registrar having such a problem. I was able to point to a case in England, but the fact that no mischief had arisen in Ireland was deemed to constitute a strong point against the relevance of what I was proposing. The same applies in this instance. We have a good record in our schools and it is important that we appreciate the fact that they are not bastions of homophobia or unjust discrimination. Assuming otherwise does a severe disservice to the sensitivities of their patrons, managers and day-to-day administrators.

In considering the balance between guarantees of equality and the right to work and earn a livelihood on the one hand and, on the other, the right to religious freedom, the Supreme Court held that there was a reasonable balance in existing legislation. The court was clear that equality rights were not absolute. No one's rights, be they to equality, freedom of expression or to run institutions according to their particular values, can ever be absolute. There will always be competing rights. However, a church-run school must be able to protect its ethos in the case of a teacher who, for example, might tell a class that atheism is preferable to Christianity, religion is a waste of time, all of us are nothing more than bundles of atoms devoid of moral worth, the occult is a healthy spiritual community, there is no such thing as objective truth, the unborn child is nothing more than a parasite and can be aborted accordingly, marriage discriminates against polygamists' partners or the State and not God is the ultimate arbiter of what is right and wrong. These values are not held universally, yet they are essential issues in a church-run school.

Every Senator is united in the belief that we must have greater diversity but, in providing for such among types of schools, we must allow distinctive value systems to breed and thrive. This is not a question of guaranteeing the cold, sterile rights being asserted by institutions that have no compassion. This is about the values held by people who do not believe it is wrong to be a homosexual, but who may very well want to uphold a particular value of theirs, for example, the importance of marriage between men and women in the upbringing of children in society. These people should not be treated as second class citizens or made to feel ashamed of their values. I was encouraged by the Minister's comments because they reveal a sensitivity to the existence of competing values. However, there is a danger that the legislation will strike the wrong balance in circumstances where it is not possible to show that mischief has taken place.

The subculture of bullying that exists in our schools takes various forms. Bullying can occur for a range of reasons, including perceived sexual orientation. This is an important area in which people who have different value systems should be able to work together to ensure our schools are cold houses for bullies of any kind. I was fortunate to attend a school which applied an iron law that came down hard on anybody who bullied or dissed people for any reason, whether sexual orientation or physiognomy. These are the values that could be shared by schools of different kinds.

It is significant that existing legislation provides a test of reasonableness and necessity and there does not exist a situation of unjust discrimination to which anybody can point. It is important that we prepare sensible legislation. I am open to discussing possible changes but let us not treat people as second class citizens for holding values that some would characterise as traditional but which none the less are respectful of others' private lives. We must not pretend they do not have the right to access education for their children according to their values. To portray such people as bigots would be a travesty of a debate and I hope such a debate never takes place in this House.

Photo of Jim WalshJim Walsh (Fianna Fail)
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I followed the debate with interest. Most, although not all, of the contributors made accurate points and the Minister made a subtle distinction between behaviour orientation and other constitutional matters. I debated this issue with Senator Power late one night and I have do difficulty with the Bill, with the exception of the provisions in section 2 on positive discrimination.

The Bill deals with the categories of single mothers, separated and divorced people and gay people. I assume every Senator knows somebody working in a Catholic school who fits into one or other of these categories. I certainly know of people from these categories who are working in and accepted by that structure. I fully concur with Senator Power that gay people should not be in fear because of their sexual orientation. Everything we do should ensure that does not happen. The majority of speakers acknowledged that teachers should respect the ethos of the religious institutions in which they work, particularly given the role of such schools in the formation of the next generation. I know school principals who fall into the aforementioned categories but they do not broadcast their orientation or marital status. We should not produce legislation that would create a conflict in that regard.

There is a move towards secularisation, some of which is to be welcomed, but it tends to overrun religious beliefs and sometimes conscience is set aside. We had this argument in the context of the Civil Registration (Amendment) Bill but, unfortunately, that argument was not accepted.

Several speakers referred to the Eileen Flynn case. I assume that most Senators are familiar with that story through the media, which did not factually represent the circumstances of the case. I knew Eileen Flynn well. She was a good teacher and a lovely person. Unfortunately she has died. It was not the nuns who insisted on her being dismissed; it was the parents. I do not want to discuss the circumstances of the case because she is not around to defend herself. However, there are times when a person's lifestyle and behaviour is fundamental to his or her job, whether as teacher, garda or politician. Gardaí have been suspended for hitting people while playing hurling because such behaviour is regarded as incompatible with their professional responsibilities. Similarly, teachers are role models for their pupils. It is essential, therefore, that the legislation finely balances these distinctions.

Photo of Mary WhiteMary White (Fianna Fail)
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I welcome the initiative that Senator Power has taken with this Bill, which is fully endorsed by the Fianna Fáil Parliamentary Party. Under the law as it stands, a school can claim that hiring a gay, lesbian, bisexual or transgender teacher could undermine its religious ethos. In 1993, the then Fianna Fáil Minister for Justice, Máire Geoghegan Quinn, decriminalised homosexuality. It is important to remind Members that Fianna Fáil is a party that stands for justice and equality. Two years ago this House passed the Civil Partnership Act, which transformed the position of gay and lesbian people in Irish society. No longer are they the butt of jokes.

However, transgender individuals continue to suffer discrimination. They are the outcasts of society and they continue to be mocked. They were not born 100% physically male or female and over their lifetime they have had to come to terms with the fact that their sexuality is no longer what it was at birth. My sister worked as a midwife in the Coombe hospital in the 1980s. She once delivered a baby whose gender was not clear. That baby was sent home to the west of Ireland without any advice to the parents from the hospital. I have often wondered what happened to that child.

Fianna Fáil will be taking up the issue of rights for transgender people over the coming months. Ireland wholeheartedly welcomed gay and lesbian people and we have put the issue of homophobia behind us. Over my years as a politician, this society has become less conservative and judgmental. The biggest changes occurred when families found out they had gay or lesbian relatives. It was the same with unmarried mothers, who were discriminated against. In the 1950s and 1960s it was nearly taboo to look at an unmarried mother. We have made significant progress and this is another step in the direction of creating a just society. We have had a very interesting discussion today and the opinions expressed show the fascinating depth of knowledge in the Seanad. If I dare pick out one person, I compliment Senator Hayden. It is always a pleasure to listen to her.

Photo of Darragh O'BrienDarragh O'Brien (Fianna Fail)
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I wish to share time with Senator MacSharry.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Is that agreed? Agreed.

Photo of Darragh O'BrienDarragh O'Brien (Fianna Fail)
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This has been a good debate. I take a very simplistic approach to all this. I believe everyone in this country is equal. If we believe that people are equal, the law should reflect that. It is the job of the Houses of the Oireachtas to make good laws or to reform and repeal bad laws. That is the fundamental reason for us being legislators. I fully accept the bona fides of my colleagues who have spoken today. However, too frequently with successive Governments, including the previous Government, I have seen delays with caution getting in the way of progress. There is no reason not to accept this Bill on Second Stage to allow it to go to Committee Stage. Senator Power has put in phenomenal work and I welcome my Government colleagues' comments in that regard. It should be allowed to progress because there is no timeframe set on Committee Stage. Committee Stage can be taken and some of the concerns raised by both Ministers, Deputies Shatter and Quinn, can then be addressed. No one has said this is unconstitutional. The Minister said there may be some constitutional issues and I accept that it is complex. However, as legislators we need to do our job in what is not a political issue but a human rights issue.

I wish to make one comment on Senator Mullen's contribution. Just because a case has not been taken under section 37, that does not mean we should not act. I do not agree with the death penalty and would not want it on the Statute Book again. The death penalty was repealed here even though an execution had not been carried out for decades. However, it was deemed that that law was wrong and infringed on people's human rights and their right to life. In this case it is very simple. Teachers, gardaí and doctors are constantly being fobbed off by successive governments effectively with the line: "Don't ask; don't tell", which was the famous fudge used with the military in the United States. We are a progressive Republic. I respect those of all religions and those of none. I respect people regardless of their sexual orientation, creed, or where they come from.

It is our job to make the Seanad relevant - it is relevant. I accept what the Minister, Deputy Shatter, said to some degree and I fully accept his bona fides and that of the Minister, Deputy Quinn. However, there is no reason not to accept this Bill on Second Stage and allow amendments to be tabled on Committee Stage, on which there is no timescale. I do not want this matter kicked out until early next year. Why should teachers need to go through another school year from September waiting for action? Senator Keane is right in saying that much progress has been made over the years - but not enough. It is our job to pick that up. I urge colleagues in a non-political fashion to agree the Second Stage and then we can sit down to consider the amendments required. Every person in the State is equal and the law should reflect that.

Photo of Marc MacSharryMarc MacSharry (Fianna Fail)
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I join others in welcoming the opportunity to make a few points on the Bill, many of which have been made already. At this stage I do not want to take from Senator Power's concluding comments. I agree with our Leader on this side of the House that it is a basic question of all people in the country being equal and as such the same rights should be available to everybody. For far too long on a range of issues we have had the approach from George Orwell's Animal Farm that all people are equal, but some are more equal than others. Senator Power and the Fianna Fáil Party in introducing the Bill this evening have provided the Legislature with the ideal vehicle to begin the journey in changing this injustice. There is a bit of "previous" here in terms of legislation that has been suggested from this side of the House, which has been wholeheartedly welcomed by successive speakers on the other side of the House including the line Minister and then the constitutional safety net was introduced as the reason for not progressing beyond Second Stage - the Family Home Bill comes to mind. However, given that the Minister was able to accept Second Stage of the Debt Settlement and Mortgage Resolution Office Bill in the other House, it proves that Second Stage could be accepted here today.

Many of the people sitting behind me in the Gallery, many more watching online and very many more throughout Irish society would like a clear signal notwithstanding the Minister's comments which have been welcomed by everybody. The appropriate action would be to accept Second Stage and embrace what is after all the legislative process. Committee Stage will offer all - whether it is Senator Walsh on this side, others on the other side or indeed Senator Power herself - the opportunity to propose the necessary improvements so that the law can pass. For that reason I very much hope we will be putting the House to a vote on the issue.

6:00 pm

Photo of Averil PowerAveril Power (Fianna Fail)
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I thank Senators on all sides of the House for their contributions to the debate and thank the Ministers, Deputies Shatter and Quinn, for attending and giving us their views. I reiterate the commitment I made at the start. I had hoped we could agree on this issue as a matter of principle and finalise the text later on Committee Stage. I still believe it would be good to send out the message that we accept the urgency of it, want the Bill to move on and can argue over language later.

My concern is that progress should happen soon. Since I published the Bill, many people have contacted me to inform me that it is a real issue for them every day and is making them miserable. I made that point to the Minister and to other Members of the House over the past two months since we introduced the Bill. It is a real issue and it is immediate. When we initially started discussions with Members on the other side of the House I had hoped we could agree to progress this through to the next stage and that we could do that quite quickly. I am genuinely disappointed with a delay until January 2013, because if we suspend the Bill today, it will be January before anything could happen. As we would not have completed Second Stage we would need to restart the whole process again, which I find disappointing.

I appreciate that there are differences in wording. I again draw attention to the fact that the Bill was deliberately designed to balance different interests - the ones the Minister mentioned relating to people's religious rights and those of the individual to be protected. I believe it is proportionate and fair. There are obviously different perspectives in the House with some people wishing to delete the section altogether. My advice is that that would be unconstitutional. We could get into a nasty and unpleasant row about religion by taking on a broader fight and dragging lesbian, gay, bisexual and transgender people into it.

Over the past week discussions about timeframes have changed. We started off with a short timeframe which got progressively longer. Each night when I went home I had to think about what was the right thing to do with the Bill because I genuinely wanted Members on all sides of the House to send out a message that we are united on this.

I am concerned that if I pause it, nothing will happen.

It is with a very heavy heart that I call a division. I ask Members to vote on this Bill and ensure it goes through to the next Stage. We can argue about language at that point. We change legislation in here every day of the week; we agree in principle on Second Stage and then argue about language on Committee Stage. I ask colleagues to please put aside party differences. If they genuinely support the principle of this legislation, I ask them to put aside their differences and support it. We will not bring this Bill back on Committee Stage until work has been done on the legal side and elsewhere in terms of the wording of changes and until Members on all sides of the House are happy for it to proceed. I ask Senators to send out a message to all the groups that are here, the people who are watching at home and the people who have been in touch with me every day of the week for the last two months. Let us send a message that we understand the urgency of this, that we understand that from April to January is too long, and that we are starting this process today. We do not know where it will end up - we might end up with a very different wording from Senator Zappone or others on Committee Stage - but please, let us start. I do not want to put this on pause for the next few months. Let us send out a clear message that we are going to support this today. I regret that I will have to put this to a vote because I was hoping we could avoid it by saying we would accept amendments on Committee Stage. It is too important, because many people are relying on us to make a decision today. That is why I have to put it to a vote. I am genuinely sorry; I had hoped I would not have to.

Question put:

The Seanad Divided:

For the motion: 16 (Thomas Byrne, David Cullinane, Mark Daly, Terry Leyden, Marc MacSharry, Paschal Mooney, Trevor Ó Clochartaigh, Darragh O'Brien, Denis O'Donovan, Ned O'Sullivan, Averil Power, Kathryn Reilly, Jillian van Turnhout, Jim Walsh, Mary White, Diarmuid Wilson)

Against the motion: 33 (Ivana Bacik, Paul Bradford, Terry Brennan, Colm Burke, Deirdre Clune, Eamonn Coghlan, Paul Coghlan, Michael Comiskey, Martin Conway, Maurice Cummins, Jim D'Arcy, Michael D'Arcy, John Gilroy, Jimmy Harte, Aideen Hayden, Fidelma Healy Eames, James Heffernan, Imelda Henry, Lorraine Higgins, Caít Keane, John Kelly, Denis Landy, Marie Maloney, Mary Moran, Tony Mulcahy, Rónán Mullen, Michael Mullins, Catherine Noone, Susan O'Keeffe, Pat O'Neill, Tom Shehan, John Whelan, Katherine Zappone)

Tellers: Tá, Senators Ned O'Sullivan and Diarmuid Wilson; Níl, Senators Paul Coghlan and Susan O'Keeffe.

Question declared lost.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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When is it proposed to sit again?

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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Ar 10.30 maidin amárach.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Is that agreed?

Photo of Jim WalshJim Walsh (Fianna Fail)
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No.

Question, "That the House stand adjourned until 10.30 a.m. on Thursday, 3 May 2010," put and declared carried.