Pat O'Neill (Fine Gael)
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Senator Zappone is in possession if she wishes to make further comments on the amendment.

Katherine Zappone (Independent)
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I welcome the Minister of State. It is great to have him here to take this Bill. I understand this is his first time to take Committee Stage of the legislation, this being our third session on this Stage of the Bill.

We are all aware that the Government will bring forward its own amendments on Report Stage. These amendments were prepared almost two years ago and I offer the rationale that I constructed then and I very much look forward to hearing the Minister of State's response because it would help me to understand where he is going with this on Report Stage and also whether to resubmit some of the amendments. It is great also to know that the Minister of State had a background in the origins of this Bill before us with the leadership of Senator Bacik.

Amendment No. 4 proposes "In page 4, to delete lines 1 to 4" and substitute what is set out in the text. I tabled the amendment with the following legal logic in mind. The way I viewed section 2(1)(b) was that it was an attempt to bring some of the provisions and wording of article 4(2) of the EU framework directive into Irish law. That is a sound approach. What we have is a section that attempts to offer additional protections to employees so that discriminatory treatment can only be taken with regard to an employee where there is a genuine occupational requirement to do so. As the Bill stands, it appears that it is intended to mean that an employee is still protected with regard to his or her private life, that is, anything that happens outside the context of employment. That is some of my thinking in trying to understand this section of the Bill and the thinking behind this amendment.

As the Bill stands, it is very cumbersome in its efforts to bring the EU framework to bear on our domestic law. It conflates or fuses genuine occupational requirements and broader religious ethos type exceptions. These should be separated out once for and for all in order that with legislative changes we can ensure for employees, or perspective employees, that the balancing of religious ethos concerns can only be done with regard to the characteristic of religion or belief or the characteristic of the equality ground. Balancing religious ethos concerns can only be done with regard to that one ground and this balancing must have regard only to a genuine occupational requirement. I propose that the best way to do this is to bring the protections of a genuine occupational requirement, to which the framework directive refers, into the subsection where it states "takes action which is reasonably necessary to prevent an employee... from undermining the religious ethos of the institution". In other words, I am trying to bring up and integrate the language used in section (1)(b)(ii) into section 1(a)(ii) because the drafters separated that out. I wonder why they did that. Was it to enable them to put in additional protections only for employees who work for institutions that receive public moneys? What about employees who work for private institutions or private individuals who do not receive public moneys such as churches, synagogues or the housekeeper of a presbytery? Why should they not be protected with the notion that they can only be treated unfavourably with regard to religion or belief if this is a genuine occupational requirement of the job? If section 1(a)(ii) is retained without the change I propose, then those employees who work for a religious institution who do not receive public moneys could still be discriminated against by virtue of their sexual identity, disability, age or race, by virtue of who they are, because their private lives are not off-limits for the institution when it reflects on what does or does not undermine its religious ethos. That was my thinking at the time.

Ivana Bacik (Independent)
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I will be brief. I welcome the Minister of State, Deputy Ó Ríordáin, to the House on this his first appearance before us on this Bill. I welcome members of the Gay and Lesbian Equality Network, GLEN, and other stakeholders in the Gallery. I very much welcome the resumption of Committee Stage. There has been a long gap, as colleagues will be aware, of more than a year since we first started Committee Stage and I very much welcome the news that Government amendments for Report Stage were approved earlier this week. I look forward to the Minister of State's response to Senator Zappone's amendment and to his outlining what may be in the Report Stage amendments that we will deal with next week. I know we will have a briefing for all Senators on those next Tuesday. All of us share the same objective, which is to see this Bill made as strong as possible to ensure the strongest possible protection against discrimination, in particular, on grounds of sexual orientation or on grounds of family or marital status in employments, particularly in the education and health sectors. I look forward to the Minister of State response on this amendment and I very much welcome our resumption of Committee Stage today.

Averil Power (Independent)
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I also welcome the Minister of State, Deputy Ó Ríordáin, to the House. He is the fourth Minister to deal with legislation in this area in the House. The former Ministers, Deputies Quinn and Shatter, dealt with it when I tabled a Bill in 2012. The Minister of State, Deputy Kathleen Lynch, dealt with Senator Bacik's Bill in 2013 and the Minister of State is taking it. It has been a long time coming. Ending discrimination against lesbian, gay and bisexual teachers, medical staff and other employees is a personal priority of mine. It is for that reason that I brought forward the Bill in 2012 to amend section 37 of the Employment Equality Act and unequivocally outlaw any discrimination against employees solely on the grounds of sexual orientation or on other inherent personal characteristics such as gender or marital status. I was disappointed at the time that the Government did not accept the Bill but I welcome the fact that this issue has stayed on the agenda for the past three years. I appreciate the work other Members of the Oireachtas have since put in, including Senator Bacik on this Bill. Senator Zappone has been pushing it along and other items of legislation have been put forward in the Dáil. I hope the Minister of State is the last Minister who will have to come into this House to discuss this issue with us. I know this is an issue to which he has a personal commitment, both in his current role and as a former teacher. I hope we can work together on a cross-party, cross-group basis to get properly robust and progressive legislation through both Houses as soon as possible. There is one standard that the final legislation will be held against, and that is whether employees can be secure in knowing they are free to be themselves at work, that there is no doubt about that and that they no longer have to hide any aspect of their personalities, including sexual orientation. I know the Minister has heard from teachers about the heartbreak of going into the staff room on a Monday and not being able to speak about their weekends or their partners, or not being able to tell people that they participated in a civil partnership or got married abroad. I hope they will soon be able to say they got married in Ireland when that legislation is passed. People should be able to have the same conversations that everybody else has about their lives, and be open and comfortable in doing that. No employee can be really happy in his or her job in those circumstances. It is particularly cruel that people who are good at their jobs - people whom everybody knows to be good teachers, doctors or other top-class professionals - are still unhappy in their work for that reason, especially in 2015. The standard will be that people do not have any fear, and that requires that the final text give people certainty that there are no circumstances whatsoever in which any employer will have a legal basis for arguing that an inherent personal characteristic of an employee is a threat to the ethos of the workplace or a ground for taking any action against him or her. I am concerned, as I stated in the debates on earlier Stages of this legislation, that the current text of the Bill does not meet that test. That is something that the Gay and Lesbian Equality Network, GLEN, the Irish National Teachers' Organisation, the INTO, and the Irish Council for Civil Liberties, ICCL, have said publicly also. The ICCL stated on the last occasion that the Bill would be a partial thawing of the current chill factor that exists for LGBT staff, but not a full thawing. The Minister has indicated that he will table amendments on Report Stage, and I welcome the fact that he met with myself and Senators Zappone and Bacik yesterday to indicate his intentions. It would be helpful if he could outline those to the House. A particular issue, which I have highlighted previously, is that it can only ever be legitimate to take action against any employee - gay or straight, male or female, religious or non-religious - on the basis of some form of misconduct in the workplace. That is not a requirement in the current Bill and it is essential that it be included.

I have tabled amendments on the separation of public and private institutions, which we can discuss later, including amendment No. 5. It is essential that people in private institutions have some protections.

As Senator Zappone stated, in the current draft of the Bill the Minister is not changing the religion ground. As the legislation stands, an employer can discriminate on the grounds of religion by saying it is reasonably necessary to protect the ethos of the workplace, but it is not a genuine occupational requirement, as mentioned in the European Union directive. None of us would argue that it would be appropriate to insist that the church hire female priests, but it would be utterly inappropriate not to hire somebody as a gardener, youth worker or some other employment that does not have a religious teaching element to it on the basis of a personal characteristic that is not related to the job. It is something the Minister needs to examine.

I have tabled a number of amendments that I would like to discuss with the Minister and on which I would like feedback from him before Report Stage. In the first instance, however, it would be helpful to get his views on the record about the Government's intentions for Report Stage. There is a long way to go and I hope we will go there together.

Mary Moran (Labour)
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I, too, welcome the Minister, Deputy Ó Ríordáin, to the Seanad this afternoon. I am proud to have seconded the Bill proposed by Senator Bacik, and I am delighted that it has reached Committee Stage. As someone who taught in a religious school for years and took part in conversations in the staff room, it is only right and proper that every member of staff in whatever job, be it in our religious schools or in our hospitals, has the right to free speech in terms of coming into work and describing our weekends and talking about the people we love without fear of being discriminated against in our employment.

I am delighted also that there was approval for the amendments this week, and I look forward to Report Stage next week. I also look forward to listening to the debate this afternoon.

Pat O'Neill (Fine Gael)
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I, too, would like to welcome the Minister of State, Deputy Ó Ríordáin, to the House.

Aodhán Ó Ríordáin (Dublin North Central, Labour)
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I am very pleased to be here today on the resumption of Committee Stage of this important Bill. To respond to Senator Power, it is my intention and my hope that I will be the final Minister to deal with it.

Senators will be well aware of my strong opinions on the need to amend the current section 37(1) of the Employment Equality Act 1998 and that I, together with Senators Ivana Bacik and Mary Moran, as well as Deputies John Lyons, Dominic Hannigan and Ciara Conway, first introduced this Bill to the Houses in 2013. I also want to acknowledge the work done by Senator Power on her previous Bill on the issue and a similar Bill two weeks ago from Deputies Catherine Murphy, Ruth Coppinger and Joe Higgins.

The existing section 37(1) of Employment Equality Act 1998, as amended by section 25 of the Equality Act 2004, provides that where a religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person if it gives more favourable treatment, on the religion ground, to an employee or prospective employee where it is reasonable to do so in order to maintain the religious ethos of the institution, or it takes action that is reasonably necessary to prevent an employee or prospective employee from undermining the religious ethos of the institution.

The provision was previously contained in the Employment Equality Bill 1996, which was referred by the President to the Supreme Court under Article 26 of the Constitution. While the court held that Bill to be unconstitutional on other grounds, the constitutionality of what is now section 37 was upheld as a reasonable balance between the competing constitutional rights involved. While we can seek to find a new balance that better meets the needs of employees, the logic of the Supreme Court decision is that a balance does need to be struck; it is not simply a matter of deleting certain elements of the existing Act.

For this reason, the Government, in the programme for Government, committed to amending section 37(1) to ensure that its operation leads to a fairer and more equitable balance between the rights of freedom of religion or association, on the one hand, and, on the other, the right of persons in employment, or prospective employees, to be free from discrimination and to privacy in their personal lives.

A key feature of the Bill before us is the distinction it makes between religious institutions that are entirely privately funded and those which are funded by the taxpayer. The rationale is that in the case of the second category, the Government has the right - and arguably the duty - to protect employees who are paid from the public purse from unfair treatment or discrimination.

On examination by the Attorney General's office, the Bill was found to be essentially constitutionally sound, although some amendments are required to the text as published to enhance its constitutional robustness.

Aside from some technical changes, the most significant change that needs to be made - the precise details of which I will bring before the House on Report Stage - is to replace a proposed power for the Minister for Justice and Equality, in consultation with the Minister for Health or the Minister for Education and Skills, to issue directions or guidelines to relevant employers for the purpose of giving effect to the proposed amended provision. It was felt that this approach would be unsafe, as the courts could find it to be an unlawful delegation of authority by the Oireachtas. Instead, the Government amendments will oblige relevant employers in religious-run schools and hospitals to show that favourable treatment of an employee or prospective employee is limited to the religion ground and that action taken against a person is objectively justified by reference to that institution's aim of protecting its religious ethos and that the means of achieving that aim are appropriate and necessary.

The proposed new subsection will provide that action taken against an employee or prospective employee on the religion ground shall not be regarded as justified unless it is rationally and strictly related to the institution's religious ethos; a response to conduct by a person which undermines or would undermine the religious ethos of the institution, rather than a response to that person's status under any of the other discrimination grounds, such as sexual orientation, that are set out in equality legislation; and proportionate to the conduct of the employee or prospective employee, having regard to alternative action the employer could take, the consequences of any action taken for the employee or prospective employee and the actual damage caused to the religious ethos of the institution.The aim is to raise the bar so that religious run schools and hospitals will have to show real damage to their ethos, are precluded from discrimination on any of the other equality grounds and that any action taken is reasonable and proportionate. I wish to signal my intention to the House to use the opportunity afforded by the Bill to advance on Report Stage a number of other, mainly technical, amendments to existing equality legislation.

On rent supplement and housing assistance payment, the most significant amendment is to prohibit discrimination in the letting of residential accommodation on the basis that a person is or is not in receipt of rent supplement or housing assistance payment. It will eliminate the inclusion, by some landlords, of references to rent supplements not being accepted in advertisements for residential rented property. This will involve an amendment to sections 2 and 6 of the Equal Status Act 2000.

I also intend to amend the definitions of indirect discrimination in the Equality Acts to follow precisely the definitions in the relevant EU directives and their evolving interpretation by the Court of Justice. Therefore, amendments will be advanced to the definitions of indirect discrimination in the Employment Equality Act 1998, Equal Status Act 2000 and the Pensions Act 1990 to bring the letter of the legislation into line with those directives.

While the Employment Equality Act 1998 prohibits discriminatory advertisements, there is no provision to allow an aggrieved party - in relation to an employment opportunity - to take a case to the Equality Tribunal other than a referral by the Irish Human Rights and Equality Commission, formerly the Equality Authority. I intend to remedy this deficiency by allowing the person, him or herself to take a complaint, as distinct from allowing cases to be taken solely by the IHREC. This will involve amendments to sections 2, 8(5), 12 and 13 of the Employment Equality Act 1998.

While the Framework Employment Directive 2000/78/EC, which outlaws age discrimination in employment, was transposed into law by the Equality Act 2004 based on the wording in the directive, the case law of the Court of Justice has since established that national provisions laying down retirement ages could amount to age discrimination if they cannot be justified under the specific provisions of the directive. The court has also held that the provision of fixed-term contracts on the basis of age constitutes age discrimination and would require justification under Article 6 of the directive. I therefore intend to bring forward amendments to bring our domestic legislation more into line with these judgments. The amendments required are to sections 6 and 34 of the Employment Equality Act 1998.

The State is obliged under the European Economic Area agreement and the EU-Swiss agreements to ensure that benefits in admission to any course of vocational training offered by an educational or training body are extended to EU nationals and are also extended to EEA and Swiss nationals, in the absence of an explicit provision to the contrary in these agreements. In practice, the same benefits in terms of such fees and admission are afforded to EEA and Swiss nationals, but the equality legislation does not refer to Swiss and EEA nationals and needs to be amended to explicitly reference them. I will bring forward the necessary amendments on Report Stage. Amendments required here are to section 12 of the Employment Equality Act 1998 and to section 7 of the Equal Status Act 2000. Finally, as these amendments will extend the scope of the Bill, it will be necessary to amend on Report Stage the Bill's Long and Short Titles along with the collective citations.

In conclusion, I look forward to engaging further with Senators on Report Stage and ensuring that an effective Bill is passed by both Houses and enacted as quickly as possible.

Averil Power (Independent)
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I thank the Minister for outlining his intentions for Report Stage. I also acknowledge the additional criteria he has set out, the new test, in requiring that actions taken are rational, proportionate and are responses to actual conduct and not to a person's individual characteristics, as I had called for. It is a significant improvement in the Bill and I welcome that. I believe the Minister has listened to earlier debate on the requirements for forms of conduct in the workplace. However, I have a number of concerns which I ask the Minister to reflect upon before Report Stage.

The Minister has indicated that a distinction should be retained between public and private institutions. I can accept that if an institution is publicly funded then it should be subject to the highest possible standards and the most rigorous application of our equality law, but I am not convinced that we cannot go further in respect of our private institutions. I do not believe that an institution being a private one should give it a licence to discriminate without any requirement that its action is rational and is related to a genuine occupational requirement.

The Bill, as currently drafted and as the Minister has indicated, intends to retain the section that private institutions' actions are reasonably necessary to maintain the ethos. The reason we are changing the language for the public institutions is that we all accept that that language is too vague and a source of insecurity for people. They are unsure what it does and does not mean; what does "ethos" mean and what is "reasonably necessary"? The Minister is putting in a higher test for public institutions that requires their actions to be rational and related to an occupational requirement. The absence of such a test for private institutions is problematic and I ask the Minister to look at this again.

It is fair enough to require that somebody be of a particular faith where that is a genuine occupational requirement for the job, but that may not always be reasonable in respect of the post involved, as seen in case laws from other countries. A religious run youth service discriminated against a person on the grounds that the person was not of the same faith. It was struck down because the person, a youth worker, was not involved in any form of religious service so the employer lost on the basis that it could not show a genuine occupational requirement.

The European directive does not make a distinction between public and private institutions. The Irish Human Rights and Equality Commission points this out in its report; that there are no grounds for a blanket distinction between the two. I ask the Minister to reflect on that.

I welcome the test which is introduced in the Bill. The Bill refers to recurrent grants and, in this context, perhaps the Minister would clarify the language around what is and is not considered to be a private institution. For example the Mater public hospital is a public institution but is the Mater private a fully private institution? Will the Bill lead to a situation where a doctor who is working in both can feel comfortable working in the public hospital but still be nervous working in the private one? Greater clarification is needed around what is and isn't a public institution and what is meant by recurrent annual grants? Could it be the case that the State could give a significant capital grant to an institution which would still be able to evade responsibilities?

I would also look for more clarity on the conduct tests. There have been problems in the US in situations where, for example, a teacher has been out openly for years without any difficulty, and then married. The act of getting married is taken by the employer as conduct contrary to the ethos, and then the person faces discrimination. We need to be clear in respecting the will of the people, as overwhelmingly expressed in our referendum in May in favour of marriage of equality. There can be no question of a person being discriminated against in any form of employment, public or private, simply for exercising their constitutional right to get married. I believe this is unclear under the current wording and under the Report Stage amendments, which is why I have tabled that an amendment stating that no action could be taken against somebody for being married, for being clear in the workplace that they are married, for wearing a wedding a ring or for speaking about the fact that they are married. I ask the Minister to look at making that clearer in the final wording in the legislation.

The INTO and GLEN are concerned about other scenarios in regard to what does and does not constitute conduct. Take for example the challenging of homophobic comments in the staffroom or the classroom - is that conduct? Is that challenging the ethos of the institution?What about a case in which one child bullies another because the other child has two fathers, but the teacher says every family is equal? Would that be conduct undermining the ethos of the school? People have a genuine concern about clarity around these issues. One of the biggest problems to date has been fear of the unknown. No employer has won a discrimination case on the basis of section 37(1) of the Employment Equality Act 1998. However, the difficulty is that it creates a chilling effect for employees, and people feel the need to self-censor and hide. Many teachers who have come out find that their colleagues and principals are overwhelmingly supportive, while their boards of management do not have an issue. Others are petrified, however, of taking that step. We need to have clarity on this. Will the Minister of State respond on what does and does not constitute conduct that would undermine the ethos of the institution?

Another scenario raised with me is one in which a teacher who works in a religious school attends a gay pride parade. Could the employer take exception to a photograph in the local newspaper of the teacher carrying a banner at a gay pride parade? I hope, rationally, that that would not be the case. However, the Irish National Teachers Organisation, INTO, has raised this concern. What about protests to repeal the eighth amendment? That is not related to an inherent personal characteristic but to a political viewpoint. The teacher unions are concerned about this too. They feel that only conduct that is related to the workplace or directly to the job should be judged by the employer. It should not be about somebody's personal views, private life or political participation which an institution might claim is contrary to its ethos in the broader sense. My concern is that the Bill in its current wording and the wording proposed by the Minister of State does not restrict the conduct to the workplace. It just refers to conduct, which might be too broad.

Katherine Zappone (Independent)
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It is terrific to have the Minister of State’s response, which I appreciate. Is the procedure for me to respond to what the Minister of State has just said or to respond generally?

Pat O'Neill (Fine Gael)
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Sorry, Senator, but we are discussing a specific amendment, amendment No. 4, which proposes to substitute a portion of section 2 of the Bill with the following:

it takes action, on the religion or belief ground, which is reasonably necessary to prevent an employee or prospective employee from undermining the religious ethos of the institution, and that, by reason of the nature of the employment concerned or the context in which it is carried out, the action taken is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.

Katherine Zappone (Independent)
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I appreciate what Senator Power had to say. It is an unusual circumstance in which we find ourselves. I would like to comment on what the Minister of State has said. I have the freedom to do that, as my colleague has done. Senator Power asked several questions which are related to the Minister of State’s proposals for Report Stage.

Pat O'Neill (Fine Gael)
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The Minister of State said he would be tabling amendments on Report Stage.

Aodhán Ó Ríordáin (Dublin North Central, Labour)
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That is my intention, and the individual discussions can then take place on Report Stage.

Pat O'Neill (Fine Gael)
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For now we need to speak on amendment No. 4.

Katherine Zappone (Independent)
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Let me try it this way.

The Minister of State indicated that one of the primary changes will be the replacement of the proposed power of both Ministers in a later section. Does that mean that the section that I am trying to amend is actually going to stay the same?

David Norris (Independent)
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I support this amendment strongly. It seems to be very judiciously worded and covers all the possibilities. It is very reasonable and moderate in manner. I commend Senator Zappone for tabling it. It hits exactly the medium targets. I opposed the exemptions for the Catholic Church when they were first introduced in this legislation. However, the Minister at the time, Mervyn Taylor, a very decent man, said it was impossible to do any more in the political climate of the time. He may very well have been right about that. However, on a matter of principle, I felt the exemptions were wrong.

Although nobody, as far as I know, has so far been dismissed from a post on grounds of conflict with the ethos and so forth, there is a very real fear about it, particularly among teachers. I hear this expressed constantly when I meet teachers at their annual conferences and so on - namely, that there is a very real and tangible fear that inhibits and undermines them in their teaching practice.

It seems to me this amendment is carefully worded. It confines it to what is reasonably necessary to prevent an employee from undermining the religious ethos of the institution. Nobody could disagree with that. It also uses the phrase, “by reason of the nature of the employment concerned or the context in which it is carried out.” Again, there are specific tasks such as teaching religion. I do not think it is appropriate to have an atheist teaching religion. Children pick up immediately on what a teacher feels. In such a case, they will know instinctively that this person does not believe a word of what they are saying. I am not saying atheists should not be employed as teachers; I am saying it is not appropriate to have them teaching religion, for example.

The amendment contains the phrase, “the action taken is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.” In addition, it would be good if the term “proportionate sanction” was introduced.

I welcome the fact that the Government is moving towards whittling down these amendments, which is significant. I look forward to the day when they are gone altogether or we have something very close to Senator Zappone's amendment.

Ivana Bacik (Independent)
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I am conscious that we have had two goes already on Committee Stage and we are debating this somewhat in a vacuum. I thank the Minister of State for outlining so clearly what will be in the Government's Report Stage amendments. I particularly welcome the much higher bar that will be set in terms of discrimination on the grounds of section 37(1)(b), which is the real concern for all of us. I am conscious that the Minister of State has set out the three-stage test that will be in the Government's amendments.

Paschal Mooney (Fianna Fail)
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I do not want to interrupt the Senator, but a debate on this will take place on Report Stage.

Ivana Bacik (Independent)
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In light of what Senator Zappone has pointed out in her question about amendment No. 4, I would point out that there is a facility for us on Report Stage, under Standing Order 126, to recommit specific Report Stage amendments if the House believes there has not been sufficient time to deal with them because they were not before us on Committee Stage. That might be the appropriate point for the Minister of State to make the more detailed response on some of the questions that have been raised in this debate. I am conscious that the only text we have before us is the text of the specific amendments, amendment Nos. 4 and 7, which we are debating, and then the other amendments, amendments Nos. 8 to 12, inclusive. Any more detailed debate on the text of the Government amendments should wait until we have those amendments before us. I think that would be more helpful.

Paschal Mooney (Fianna Fail)
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I thank the Senator. That is a matter for the House to decide, as she said.

Averil Power (Independent)
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It is very unusual for me to disagree with Senator Norris. On religion teachers, I think the purpose of Senator Zappone's amendment is that even on the religion ground, it should be a genuine occupational requirement. In a second level school, obviously somebody opts to teach religion as a core subject. In a primary school, every teacher has to teach religion - it is part of the job. I do not think it is a genuine occupational requirement that a primary school teacher should be of the same faith as the school, provided the person is prepared to teach the curriculum, whether of a different belief or a non-believer. Obviously, there will be more passion from somebody who believes. I appreciate that. With 95% of our schools under religious patronage, it is unfair that a requirement to be of the same belief as the school would be a restriction on employment.

David Norris (Independent)
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They should not be required to teach religion if they are atheist.

Averil Power (Independent)
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Yes. All of our primary teachers have to teach religion. I know that is a broader issue in terms of patronage of schools. We can have that debate another time but until we have that debate, I support the sentiments behind this amendment. When hiring a primary school teacher being a particular faith is not a genuine occupational requirement because the protections are already there that if the employer believes the person is not doing their job or is challenging the ethos, the employer can take action. That is why I support this amendment. In both private and public institutions, where any action is being justified on the grounds of religion, it must be related to a genuine occupational requirement and not just some broad concept of ethos.

Katherine Zappone (Independent)
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Is the Minister of State accepting the amendment? I did not hear whether he was accepting it or not.

Martin Conway (Fine Gael)
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It is a very interesting discussion. I do not have a deeply held view either way. I remain to be convinced by either side. I have no doubt that the Minister of State is taking on board the various aspects of this. Senator Power spoke about teachers who are not necessarily of a faith teaching the curriculum and I think that most teachers are very professional in that regard. When one is a member of a political party, sometimes one has to sell a policy that one does not necessarily agree with.

David Norris (Independent)
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The electorate can smell it a mile off.

Martin Conway (Fine Gael)
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We all find ourselves in that type of unique situation every now and then. I think the Minister of State will reflect all of these concerns on Report Stage or, at least, I hope he will.

Paschal Mooney (Fianna Fail)
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So the Senator is agnostic on this.

Aodhán Ó Ríordáin (Dublin North Central, Labour)
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He reminds me of a good friend of mine, a committed Dublin supporter, who once had to do teaching practice in Meath and had to convince all the children of the merits of supporting the Meath football team, which really went against his ethics. Not to belittle the point that has been made, the difficulty we have here is a procedural one because it has been two years since we had this conversation in this House. There are various reasons for that, but we are here now. We cannot accept the amendment on Committee stage. It makes much more sense to do so on Report Stage when the Government amendments are published. The proper context can then be given and a proper discussion can then be had as to reasons various amendments can, should or may not be accepted. I appreciate the Senator's position. We are on amendment No. 4, but we are having a broader debate now on the substance of the entirety of the Bill. I think it would be more appropriate do this on Report Stage but I appreciate what everybody here is saying. We have gone off into whole new area with what Senator Norris said, which will probably capture most of the headlines, but we need to focus back on the procedural element, which is what we are doing on Committee Stage. Report Stage will be taken next week. I accept there is a problem with the procedural elements in the House of having such a long delay between the last discussion two years ago and the discussion we are having now.

Paschal Mooney (Fianna Fail)
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Is the amendment being pressed?

Katherine Zappone (Independent)
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I move amendment No. 5:

In page 4, line 5, after “paragraph (a)” to insert “and the institutions named therein”.

Aodhán Ó Ríordáin (Dublin North Central, Labour)
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Procedurally, again, my response is the same as to all these amendments. Report Stage would be a better context in which to debate them.

Paschal Mooney (Fianna Fail)
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Amendment No. 6 is in the name of Senator Power. Amendments Nos. 6 and 12 form a composite proposal and may be discussed together by agreement. Is that agreed? Agreed.

Averil Power (Independent)
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I move amendment No. 6:

In page 4, lines 5 to 8, to delete all words from and including “where” in line 5 down to and including “funds—” in line 8 and substitute the following: “where the institution is an educational or medical institution—”.

On a technical point, the reason we are having a somewhat unusual debate is that this Bill has progressed in an unusual way and we are now, effectively, going to have a different Bill next week on Report Stage but a significantly improved one, which is a good thing. Senator Bacik's name will still be on the Bill.

Ivana Bacik (Independent)
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It is a greatly improved Bill.

Averil Power (Independent)
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We will be looking at completely different wording and a range of other issues not related to section 37, such rent supplement. It is an unusual situation. Senator Zappone and I have not pushed amendments today and instead will seek to resubmit them. This will be somewhat complicated by the fact that if we do not have sight of the actual wording of the Government amendments prior to Report Stage deadline, then we will be writing in a vacuum in terms of even paragraphs and line numbers. That will be very difficult for us. I know the Minister of State did not want to publish the Report Stage amendments or that, technically, the House could not publish any Report Stage amendments until we had concluded Committee Stage but I know they have been drafted and the text is ready to go. I ask that they be submitted well in advance of the deadline and that they are circulated to members so we have a chance to look at the text, or even just the layout of the text, before drafting our amendments. Otherwise, we cannot do our business in a sensible way. That is a technical request.

Paschal Mooney (Fianna Fail)
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For the information of the House, my understanding is that it will be a matter for Members to table amendments to the Government amendments on Report Stage. In other words, when the Government amendments are published, if Members wish to amend the Government proposals on Report Stage, they can table amendments to the Government amendments.The text of the Bill is still the same. As soon as Government amendments are circulated, the text of the Government amendments can be amended.

Averil Power (Independent)
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There is usually a deadline for submitting Report Stage amendments and if the Government did not submit its amendments until an hour before the deadline, we would only get them at that time, yet we would have to respond. I ask that the Government submit the amendments straight away so that they can be circulated now.

Paschal Mooney (Fianna Fail)
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I understand what the Senator is saying but it is a matter for the Department, rather than the House, to publish the amendments and I presume the Minister, in goodwill, will ensure the amendments are published in sufficient time to allow Members to table amendments to the Government amendments if they so wish. Otherwise, this is not proper procedure because it would not permit this House to reflect on Government amendments so that we can put forward our own amendments. I presume the Department will take cognisance of that reality so that the business can be ordered accordingly.

Ivana Bacik (Independent)
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I understand the Government amendments are already with the Bills Office so they can be published without delay and well before the deadline to enable colleagues to put in amendments to the amendments.

Averil Power (Independent)
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Thank you.

Paschal Mooney (Fianna Fail)
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The deadline is governed by when the Bill is ordered to be taken and debated on Report Stage. The business is ordered accordingly.

Aodhán Ó Ríordáin (Dublin North Central, Labour)
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We are trying to achieve this together. In the Dáil three weeks ago, a Bill was tabled by three Deputies from the Anti-Austerity Alliance and the Government did not oppose the Bill because it accepted its spirit, despite the fact that a Bill was already working its way through the process. I hope Senators will accept my bona fides. We are trying to ensure we have full context to what we are doing and we understand that Senators need Government amendments to work on so that we can have a proper debate on Report Stage. That will be done.

Katherine Zappone (Independent)
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I move amendment No. 8:

In page 4, to delete lines 30 to 33 and substitute the following:“(c) The Minister, after consultation with the Minister for Education and Skills, and the Minister for Health, will issue guidelines to the institutions identified within this Act, to define and publish their ethos, and may issue further directions or guidelines for the purpose of giving effect to paragraph (b).”.

It would be most helpful to issue guidelines to institutions to give their religious ethos so that it would be much easier for employees to determine whether they were in tune with it and how they would conduct themselves in the workplace. My amendment would make things clear, it would reduce the chill factor and it would lend sufficient clarity to the law. I am aware of the fact that the Supreme Court acknowledged that the term "ethos" in the Employment Equality Bill 1997 was vague and it was also a contentious issue in the Oireachtas debates on the Bill. Nevertheless, I wonder why it would be so difficult for religious institutions to publish their ethos.

When this issue was debated in the past, the then Senator Brendan Ryan asked:

Who undermines the ethos of an institution? Is it the eminent secondary school teacher who owns 15 slum dwellings in a small town and rips off the poor? Or is it the person living with someone who is not their spouse? I know which has been sacked and which has not been sacked.

Averil Power (Independent)
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Guidelines could be helpful. I understand that the Minister says the Attorney General would prefer to have a more specific three-part test because guidelines without tests are problematic under Article 15 of the Constitution, which states it is for the Oireachtas to set out principles and policies in legislation and the courts to decide within that. There needs to be more clarity. I accept that the existing wording in the Bill is too vague and that there is a need for a test for rationality, proportionality, conduct and other such things. That does not preclude guidelines; it simply means guidelines are not enough.

It would be useful for the legislation to contain a provision that would allow the Minister to supplement the test already set out in the legislation by providing guidelines clarifying issues that might arise. If issues arise which the stakeholders are not sure how to interpret such as those around ethos or conduct, as was the case with INTO as regards what was and was not covered by tests, the Minister would be able to issue supplementary guidelines at some point in the future. It would be in everyone's interest to have this additional clarity. I understand why a deeper test is required but guidelines as well would avoid having to revisit legislation in the future by allowing a future Minister to issue guidelines to assist with interpretation.

Aodhán Ó Ríordáin (Dublin North Central, Labour)
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Again, in the absence of Government amendments, the same point is being made and I will repeat my remarks. The Government amendments will oblige relevant employers in religious-run schools and hospitals to show that favourable treatment of an employee, or prospective employee, is limited to the religion ground. The religion ground shall not be regarded as justified unless it is the following circumstances - rationally and strictly related to the institution's religious ethos; a response to the conduct of a person, which was the point made by Senator Power, which undermines or would undermine the religious ethos of the institution, rather than being a response to that person's status under any of the other discrimination grounds such as sexual orientation, marital status or being an unmarried parent or divorcee, as set out in equality legislation; and is proportionate, which is a key word, to the conduct of the employee, or prospective employee, having regard to alternative action the employer could take, etc.

In terms of the amendment, the Government will also table amendments to the Bill. Today, we are discussing the text of my remarks. Rather than get into the substance of the debate I understand where the Senator is coming from. It would be better for the debate, in its totality, to take place on Report Stage when we have the context of the Government amendments, rather than working from the initial Bill and my own remarks.

David Norris (Independent)
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This brings me back to my initial position. I would prefer to see these exemptions got rid of altogether. The United Nation's Human Rights Committee in July 2014 said that Ireland should amend Section 37(1) of the Employment Equality Act "in a way that bars all forms of discrimination in employment in the fields of education and health". That is my position but I understand that it is not the Government's position.

With regard to the amendment I have to say that, unlike the previous amendment tabled by Senator Zappone which I complimented for its clarity, I am not sure that this one is quite so clear. It places an obligation or wish on the Minister to issue guidelines to an institution about its ethos. I am not sure that a Minister or a Department is the appropriate place to issue guidelines to a religious institution about its ethos.

An interesting point was made that there is no definition ethos, or at least it is very vague. Religions could publish books on what their ethos is and, in fact, there have been books published on the Christian ethos, Islamic ethos, etc. Therefore, I am not sure how practical a definition would be so, like my friend and colleague, Senator Martin Conway, said about an earlier matter, I will suspend judgment.

Paddy Burke (Fine Gael)
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Is the amendment being pressed?

Katherine Zappone (Independent)
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No.

Aodhán Ó Ríordáin (Dublin North Central, Labour)
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I appreciate what has been said. However, most European countries have a section 37(1) or their own version of section 37(1). The difficulty in Ireland is that the vast majority of schools, particularly national schools, are under religious patronage whereas in other European countries that is not the case. In every other European country that I am aware of, a version of section 37(1) is on their statute books. In those countries the State's education system runs in a particular way but parallel to that are religious ethos schools and teachers make their own determinations. The difficulty in this country is that we do not, effectively, have a State-run education system. We have a State-funded education system which is then outsourced to patron bodies and that is how we run the system here. We have a section 37(1) on our Statute Book which has a huge impact on virtually every primary schoolteacher unless he or she is fortunate enough or has the facility to teach in a school that does not impinge on his or her ethos. The difficulty is the population of schools, or the number of schools, which are run under a religious ethos and trying to balance the constitutional right of parents to have education delivered through a particular religious ethos with the right of the worker. In other countries the balance is easier struck but here it is not as easy to do, unfortunately. That is the balance that we are trying to strike.

Ivana Bacik (Independent)
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I support the Minister of State's claim that it is about the context. A number of us, including myself, made the same point on earlier Stages of the Bill. While many of us, myself included, would like to see a complete change of the education system so that we remove the religious basis, that is the reality of the context in which we are working. That does make section 37(1) particularly problematic for teachers in the current situation. That is why it is so important that we replace the current test, in section 37(1)(b) in particular, with the higher bar that the Minister of State has spoken about, and one which we hope to see on Report Stage next week.

Paddy Burke (Fine Gael)
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Amendments Nos. 9 to 11, inclusive, are related and may be discussed together.

Averil Power (Independent)
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I move amendment No. 9:

In page 4, line 34, to delete “paragraph (b)” and substitute “paragraphs (a) or (b)”.

Amendment No. 10 is much more comprehensive and it was written against the background of the original text of the Bill. My amendment was designed to make it clear that there were no circumstances in which it would be possible to discriminate against somebody purely on the basis of sexual orientation or civil status. From what we have heard from the Minister of State, it is clear that he will address that aspect in the Report Stage amendments by way of a requirement for conduct. I accept that is something that he has taken on board and I do not need to press the issue.

Amendment No. 10 goes further as it provides clarity in other areas. For example, paragraph (g) would prevent a person from being treated less favourably on the basis that he or she exercised his or her lawful right to free expression or free assembly. My amendment was designed to prevent an employee, or prospective employee, being penalised for participating in a marriage equality march, pride parade or other form of assembly which an institution could argue was contrary to its ethos.

Aodhán Ó Ríordáin (Dublin North Central, Labour)
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I would-----

Averil Power (Independent)
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Exactly. Paragraph (h) is designed to safeguard the right to privacy. It emphasises that the private life of an employee, or a prospective employee, is not the business of a person's employer. I have not been fully reassured that these two issues are dealt with in Report Stage amendments, that the Minister of State has indicated. I accept that there is now a restriction in terms of the circumstances in which an employer can take action to those where there has been some conduct, on the part of the employee, it does not say that the conduct must have occurred in the workplace. Also, the legislation does not specify what type of conduct could and could not reasonably be perceived to be a threat to the ethos. I appreciate that the provision imposes some requirements of rationality but it does not provide enough clarity. That is why I tabled amendments on these issues.

My amendment also covers the issue around marriage. I refer to ensuring that the simple act of getting married, or speaking about one's marriage, in the workplace could never constitute conduct. I ask the Minister of State for his response to my queries. Perhaps he will consider or reconsider those issues between now and Report Stage to ensure that the Bill provides the clarity that is required in respect of those areas.

David Norris (Independent)
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I support these amendments. Obviously I am against the discrimination of employees on the basis of sexual orientation. I am little bit surprised and am curious to know if there is a reason the word spouse was introduced rather than marriage or whatever. Perhaps the amendments were contemplated and put together before the passage of the referendum.

Averil Power (Independent)
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I was very optimistic before the referendum.

David Norris (Independent)
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I am concerned about the term "spouse." I favour the term and prefer it to using the phrase of husband and wife in a same-sex relationship.

The amendment is about marriage. It is very much in line with the thinking of the Irish people, as expressed in the marriage equality referendum and, therefore, it is appropriate that the amendment be put forward. It would be extraordinary, in these circumstances, that anybody would be discriminated against simply for getting married. I wish to quote the American gentleman who took a case to the Supreme Court. He made an interesting point that had not struck me at all. He said that after this decision we are talking about marriage. He claimed we would not be talking about gay marriage but talking about marriage full stop and I think that is the situation here in this country.

There is the question of attending pride marches or whatever. This may seem a bit remote but 20 or 30 years ago there was a case in Scotland which I have instanced on the record of the House before. A man was employed as a gardener at a school in Scotland but he was fired for attending a political demonstration on gay rights. He took an action against the school's board but the court upheld the board's right to dismiss him simply for attending a march. That shows there is case precedent within these islands for this kind of thing.I completely agree that it seems to be very reasonable that actions should not be permitted to an institution which would be illegal if carried out by the State. This operates a kind of equality of treatment for people which is perfectly reasonable. I support these amendments although I do understand the Minister of State's position that all this should be suspended in anticipation of the amendments on Report Stage. There is probably some very rational explanation as to why these amendments have not been tabled by the Government on Committee Stage rather than on Report Stage. Perhaps that was explained by the Minister of State before I came into the House, so he need not explain it again if he has already done so, because I will read the record.

Katherine Zappone (Independent)
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I support these amendments in the spirit in which they were written. They really push so clearly that issue of unequivocal guarantee about which Senator Power has spoken at length. If we are not deleting the section, then we need to provide as tight a guarantee as we can for employees to be protected. This effort by employers that may have some justification, in terms of discriminatory treatment on the basis of religion, must in no way and in no instance be extended into the private lives of the employees. I support the spirit of the amendments and the thought that was given to preparing them.

Aodhán Ó Ríordáin (Dublin North Central, Labour)
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The essence of the amendments is to provide a clear definition of what "conduct" means. My nervousness is that because it took so long to get it to this stage, if we start giving specific examples of the meaning of "conduct", it could take a lot longer before the Bill is enacted. I take on board what the Senator said that perhaps we need to do some work on language and perhaps we can do something when the Bill goes to the other House. In the absence of any case law, it is very difficult to know what would or would not happen in that eventuality. Speaking personally, the only issue that was raised about my prospective employment was membership of a particular political party and I had to deal with that.

I have sympathy for the Senator's position. However, other legislation protects the freedom of assembly and freedom of speech. We hope to get a clearer definition of the meaning of "conduct". Assuming a particular course of action would not lead to any kind of ramifications in a person's employment is not good enough and tighter language or explanation is required. We can work on that but I am slightly nervous that if there are too many scenarios, this Bill would end up back in the Attorney General's office and we might not see it again in the lifetime of this Government. While I appreciate what the Senator is trying to do and we can work on that, there is the question of how successful it would be.

If a private citizen goes on a march in support of something he or she feels strongly about, and this is technically not in line with a particular religious view of the world, it is a question whether this will impact on his or her employment prospects. For example, if a promotion opportunity arises in a school or a hospital, will the person be overlooked because he or she is demonstrably in favour of a political viewpoint? Let us work on it. I am conscious that we have spent a long time on this Bill and I am anxious to get it through. We have made substantial amendments to the original text. That will have been obvious in the discussions yesterday and the amendments have been roundly welcomed. We can have a more comprehensive debate on Report Stage. We are trying to nail down the definition of the word "conduct" and this will be the key element. It is all about raising the bar to make it so high that it would really have to be a very unusual or a deliberate event to contradict the ethos of the institution concerned.

Paddy Burke (Fine Gael)
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When is it proposed to take Report Stage?

Ivana Bacik (Independent)
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Next Tuesday.