Seanad debates

Thursday, 9 July 2015

Employment Equality (Amendment) (No. 2) Bill 2013: Report and Final Stages

 

10:30 am

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Before we commence I remind Senators that a Senator may speak only once on Report Stage except a proposer of an amendment who may reply to the discussion on the amendment. Also on Report Stage, each amendment must be seconded.

Amendment No. 1 is a Government amendment, amendments Nos. 1 to 3, inclusive, and amendment No. 19 are related and may be discussed together by agreement. Is that agreed? Agreed.

Recommittal is necessary in respect of this amendment No. 1 and the other related amendments as they do not arise out of Committee proceedings.

Bill recommitted in respect of amendments No. 1 to 3, inclusive, and amendment No. 19.

Government amendment No. 1: In page 3, to delete lines 7 to 14 and substitute the following: "An Act to provide for certain changes in the exclusion of discrimination on particular grounds in certain employments; to provide for certain changes relating to discriminatory job advertisements; to give further effect to Council Directive 2000/43/EC of 29 June 20001 implementing the principle of equal treatment between persons irrespective of racial and ethnic origin; to give further effect to Council Directive 2000/78/EC of 27 November 20002 establishing a general framework for equal treatment in employment and occupation; to give further effect to Council Directive 2004/113/EC of 13 December 20043 implementing the principle of equal treatment between men and women in the access to and supply of goods and services; to give further effect to Directive 2006/54/EC of the European Parliament and of the Council of 5 July 20064 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast); to prohibit discrimination in the provision of accommodation on the basis of receipt of certain payments; and for those and other purposes to amend the Pensions Act 1990; the Employment Equality Act 1998 and the Equal Status Act 2000 and to provide for matters connected therewith.".

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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I hope my visit to the House this afternoon will be more productive than my visit here this morning. Before addressing the content of amendments Nos. 1 to 3, inclusive, and amendment No. 19, I hope I may be allowed to make one or two brief introductory remarks. We had an unusual Committee Stage and an unusual journey to get to Report Stage. I appreciate that the rules under which we operate on Report Stage may restrict Senators in the contributions they can make. I want to make it clear that I am more than happy to co-operate with Members in terms of recommitting groups of sections, as has been advised to us as the appropriate procedure, to ensure we can have a full discussion on each and every aspect of the Bill and the amendments I am recommending be made to it.

Given the additions I am proposing to the Bill, the Long Title has been amended to reflect these changes, including references to the relevant EU directives, the Pensions Acts 1990 to 2014, the Equal Status Acts 2000 to 2012, the Employment Equality Acts 1998 to 2011 and to matters related thereto. The references to the EU directives will be helpful to my Department in its discussions with the European Commission in relation to our transposition obligations - the point being that part of what we are proposing to do is to make technical changes to the existing equality legislation to reflect in specific areas the evolving jurisprudence of the European Court of Justice, our own courts and the Equality Tribunal in equality law cases. That is the context for amendment No. 1. A Chathaoirleach, will I proceed to deal with amendments Nos. 2, 3 and 19?

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Yes. They are all being taken together.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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Amendment No. 2 introduces a definition of the "Act of 2000" as we need to refer to the Equal Status Act 2000. Amendment No. 3 deletes the definition of "Minister" as we do not need this as we are amending existing legislation that already has this definition.

In Amendment No. 19 we are making consequential changes to the Short Title, collective citation and the commencement provisions. The Title of the Bill will change so that once enacted it will be known as the Equality (Miscellaneous Provisions) Bill 2015. This change is needed as we propose to amend both the employment equality and the equal status streams of equality legislation and to amend relative provisions in the Pensions Acts.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Did Senator Bacik indicate she wishes to speak?

Photo of Ivana BacikIvana Bacik (Independent)
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Yes. I do not believe there can be any objection to these Government amendments as they are technical in nature and they reflect the change in the nature of the Bill, which I very much welcome as the original proposer of this Private Members' Bill. This is a proud day for the Seanad to see what started life as a Labour Party Private Members' Bill, and what had been worked on by many colleagues, including Senators Power and Zappone both before and since, now become a Government Bill and, hopefully, today conclude its passage through the Seanad. It is also very welcome, as amendment No. 1 suggests, that the Bill will now become broader in focus. The Government amendments, which are reflected in this new Title, and which we are going to debate, will not only make the hugely important and long overdue change to section 37 of the Employment Equality Act but will also make very progressive change in terms of prohibiting discrimination in relation to rent supplement and housing assistance payment in equal status legislation. That is hugely welcome, although it is not at all what was in the original version of the Bill but I do very much welcome it. I believe it will receive a broad welcome. The other provisions, to be inserted by Government through amendments, on the definition of indirect discrimination, on discriminatory job advertisements, on retirement age issues and on the technical issue regarding EEA nationals and Swiss nationals are all very welcome amendments. I very much welcome them and I welcome the change to the Title to reflect them in amendment No 1.

Amendment agreed to. Government amendment No. 2:In page 3, between lines 17 and 18, to insert the following:" "Act of 2000" means the Equal Status Act 2000;".

Amendment agreed to.

Government amendment No. 3: In page 3, to delete line 19.

Amendment agreed to.

Bill reported with amendments.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Amendments No. 4 is a Government amendment, amendments Nos. 4, 10 and 11 are related and may be discussed together by agreement. Is that agreed? Agreed. Recommittal is also necessary in respect of this and the other related amendments as they do not arise out of committee proceedings.

Bill recommitted in respect of amendments Nos. 4, 10 and 11.

Government amendment No. 4. In page 3, between lines 19 and 20, to insert the following:"Amendment of section 68 of Pensions Act 19902. Section 68 of the Pensions Act 1990 is amended in subsection (1) by the substitution of “an apparently neutral rule of the scheme concerned would put persons" for "an apparently neutral rule of the scheme concerned puts persons.".

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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The principal equality directives have essentially the same definition of indirect discrimination. I will quote from the Framework Employment Directive 2000/78/EC, which contains the following definition: "indirect discrimination should be taken to occur when an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage ...".

There is more in the text of the directive but that quote captures the key point, and I will quote from this one directive only in the interests of brevity.

The wording of the directives was not followed when the directives were transposed into Irish Law. The words "would put" was replaced with the word "puts", as follows, for example, in section 19(4) of the Employment Equality Act: "Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender (being As or Bs) at a particular gender at a particular disadvantage in respect of remuneration compared with other employees of their employer."

The reason for this is that there was a view at the time the Acts were drafted that the term "would put" could lead to persons taking cases where they did not have locus standior were not members of the particular ground under which they were claiming discrimination. Therefore, the word "puts" replaces the words "would put".The case law is now clear: to claim indirect discrimination, a person must assert membership of a particular class of persons to whom the Acts apply and must demonstrate actual personal detriment. Speculative or theoretical claims are not permissible. It is proposed, therefore, that the definitions of indirect discrimination in Irish equality legislation be amended to follow precisely the EU definitions. Amendments are required to the Employment Equality Acts, the Equality Status Acts and the Pensions Acts, as is evident from the text of amendment No. 4. Essentially, we are replacing the indicative with the subjunctive. We are bringing our legislation into line with the actual language used in the EU directives but not making any change to the actual law as it is applied in practice. In addition, arising from amendments Nos. 4, 10 and 11, this issue comes up in respect of amendment No. 7. However, as the main issue in that amendment relates to advertising, we will discuss it with the next group of amendments but without my repeating this element of the explanation. The nature of the Equality Acts is such that technical adjustments are required in individual sections that relate to more than one of the substantive amendments I am recommending. I hope, therefore, that Members will bear with me.

Photo of Ivana BacikIvana Bacik (Independent)
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These are purely technical amendments to bring Irish law on discrimination into line with the relevant EU directives. There can be no objection to them. I should have welcomed earlier the people in the Visitors Gallery whom I hope have come to witness the final passage of the Bill through the Seanad.

Amendment agreed to.

Bill reported with amendment.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Amendments Nos. 5, 7 and 9 are related and may be discussed together. Recommital is also necessary in this case.

Bill recommitted in respect of amendment No. 5.

Government amendment No. 5: In page 3, between lines 19 and 20, to insert the following:“Amendment of section 2 of Act of 1998 3. Section 2 of the Act of 1998 is amended in subsection (1) in the definition of “advertisement” by the substitution of “includes every form of statement to the public and every form of advertisement, whether to the public or not” for “includes every form of advertisement, whether to the public or not”.”.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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The group of amendments includes amendments Nos. 5, 7 and 9, but, due to the structure of the Equality Acts, part of amendment No. 8 is also relevant. However, as that amendment mainly deals with a different issue related to the position of Swiss and EEA nationals, it has been grouped with amendment No. 18 with which it will be discussed.

We are considering a group of amendments that relate to advertising. Section 10 of the Employment Equality Act 1998 prohibits discriminatory advertisements. Section 85(1)(d) allows the Equality Authority, now the Irish Human Rights and Equality Commission, to refer a publication or display to which section 10 applies to the director of the Equality Tribunal, soon to be the Workplace Relations Commission, for adjudication and decision. However, there is no provision to allow an individual who considers that he or she has been discriminated against in an employment opportunity to take a case. The Equality Tribunal brought this issue to my Department’s attention, with a request that the current provision be amended so as to allow an aggrieved individual to submit a complaint. The tribunal pointed to a case in which the Court of Justice of the European Union stated: “The fact that an employer states publicly that it will not recruit employees of a certain ethnic or racial origin constitutes direct discrimination in respect of recruitment within the meaning of Article 2(2)(a) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, such statements being likely strongly to dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market.” The judgment refers to the race directive and access to the labour market. Therefore, the changes to the legislation being proposed include access to vocational training and membership of certain bodies, in addition to access to recruitment and promotion. To ensure the amendments proposed do not allow for what might be termed an “officious bystander” to take a case, that is, where that person may not be a potential candidate for the particular vacancy or membership that may be involved, the approach taken in the drafting of the amendments is to amend sections 8, 12 and 13 of the Act to ensure there is a real connection between the person claiming discrimination and the advertiser.

The definition of the word "advertisement" in section 2 of the Employment Equality Act is being expanded to include a public statement as per the judgement of the European Court of Justice. We are not proposing a similar amendment on the equal status side and this question needs further consideration as the court judgment does not refer to the relevant directive. This is a question that is being examined further in consultation with the Equality Tribunal and, if deemed appropriate and necessary, can be addressed in future legislation, but I do not anticipate that we will have completed this examination in time for our consideration of this Bill.

Amendment agreed to.

Bill reported with amendment.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Amendments Nos. 6 and 12 are related and may be discussed together. Recommital is also necessary in this case.

Bill recommitted in respect of amendment No. 6.

Government amendment No. 6: In page 3, between lines 19 and 20, to insert the following:“Amendment of section 6 of Act of 1998 4. Section 6 of the Act of 1998 is amended in subsection (3)by the substitution of the following paragraph for paragraph (c):“(c) Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if—(i) it is objectively and reasonably justified by a legitimate aim, and (ii) the means of achieving that aim are appropriate and necessary.”.”.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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When the framework employment directive, Directive No. 2000/78/EC, which outlaws age discrimination in employment, was transposed into law by the Equality Act 2004, reliance was placed on the wording of recital 14 of the directive which states: "This Directive shall be without prejudice to national provisions laying down retirement ages". The conclusion is that it was not necessary to amend section 34(4) of the Employment Equality Act 1998. Section 34(4) states: "Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees...". However, the case law of the Court of Justice of the European Union has since established that national provisions laying down retirement ages could amount to age discrimination if they cannot be justified under the specific terms of the directive, in particular Article 6.1. Article 6.1, entitled, Justification of differences of treatment on grounds of age, provides that: "Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary".

The Court of Justice of the European Union has in the course of a series of judgments applied this test to national compulsory retirement schemes. The High Court, the Labour Court and the Equality Tribunal have applied this test in Irish cases. As a result, the text of section 34(4) which seems to give carte blancheto employers to set any age as a retirement age does not reflect the law as it is actually applied. It is, therefore, proposed that it be amended to reflect the law as it actually is, that is, as developed in the jurisprudence. Similarly, section 6(3)(c) of the EEA also requires amendment. Section 6(3)(c) provides: "(c) Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground". The Court of Justice of the European Union in its case law 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.

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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This is about age discrimination. The Minister of State is going through this rapidly and I am trying to absorb the rationale. His last comments seem to suggest there could be discrimination. Fixed-term contracts seem to be a way of terminating the employment of somebody over the compulsory retirement age. The amendment reads: "...it is objectively and reasonably justified by a legitimate aim". Will the Minister of State clarify what this means? The amendment also reads: "...the means of achieving that aim are appropriate and necessary". What does this mean in simple English?

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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I am informed that we do not have a national framework in this area. Effectively, there is no discrimination on the basis of age if the offering of the fixed-term contract reflects the practice or the nature of the business over a period of time. It is unusual for a termination to take place in the context of this legislation, but we are effectively transposing requirements from EU directives into national legislation, thus tidying up many things that need to be tidied up. While the thrust of the Bill was actually to deal with employment equality legislation, we are using this vehicle to transpose others in the Bill before the House. I understand from where the Senator is coming. Effectively, the amendment employs legalistic terminology on what is known to be the case already.

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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I thank the Minister of State. The only reason I raise this issue is I am considering the example of what occurs when somebody who has been employed for some considerable time in a particular institution or business exceeds the retirement age and is suddenly offered a fixed-term contract. This seems to suggest, or at least imply, that there is something more to the offer than meets the eye. Is the Minister of State satisfied that the amendment will prevent the offering of discriminatory contracts and that the onus of proof will be on the employer rather than the employee who would have to take a case on age discrimination grounds if his or her contract terms were to be changed once he or she passed the compulsory retirement age? There could be an inference that the employer wanted to get rid of the employee by offering a fixed-term contract.This was a way of doing it and because the law is so strong to simply tell somebody to go this provision could be used as a vehicle to terminate an individual's employment. A fixed-term contract could extend for three or six months. The Bill does not state its length.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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The provision brings the Bill in line with the law as it stands. There is effectively no change other than streamlining existing legislation to ensure clarity.

Amendment agreed to.

Bill reported with amendment.

Government amendment No. 7: In page 3, between lines 19 and 20, to insert the following:“Amendment of section 8 of Act of 1998 5. Section 8(5) of the Act of 1998 is amended -(a) in paragraph (a), by the substitution of “offered,” for “offered, or”, (b) in paragraph (b), by the substitution of “materially different, or” for “materially different.”, and (c) by the insertion of the following paragraph after paragraph (b):“(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.”.”.

Amendment agreed to.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Amendments Nos. 8 and 18 are related and may be discussed together, by agreement. Is that agreed? Agreed. Recommital is also necessary in this case.

Bill recommitted in respect of amendments Nos. 8 and 18.

Government amendment No. 8. In page 3, between lines 19 and 20, to insert the following:"Amendment of section 12 of Act of 1998 6. Section 12 of the Act of 1998 is amended -(a) in subsection (1)-(i) in paragraph (b), by the substitution of “facility,” for “facility, or”, (ii) in paragraph (c), by the substitution of “provided, or” for “provided.”, and (iii) by the insertion of the following paragraph after paragraph (c):"(d) by publishing or displaying, or causing to be published or displayed, an advertisement in contravention of section 10(1) in respect of any such course offered.",(b) in subsection (7)(a), by the substitution of the following subparagraph for subparagraph (i):"(i) the fees for admission or attendance at any such course by persons who are citizens of Ireland, nationals of another Member State, nationals of the Swiss Confederation or nationals of a member state of the European Economic Area and persons who are not, or",and (c) by the insertion of the following subsection after subsection (7):"(8) In this section, ‘member state of the European Economic Area’ means a state that is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by all subsequent amendments to that Agreement."."

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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Section 12(7) of the Employment Equality Act and section 7 of the Equal Status Act 2000 provide different fees, grants and admission arrangements for vocational training and access to education may apply between Irish and EU citizens on one hand, and citizens of other states on the other. The State is obliged under EEA agreements and EU-Switzerland agreements to ensure the benefits extended to EU nationals are also extended to EEA and Swiss nationals in the absence of explicit provision to the contrary in the agreements. In practice, the same benefits are extended to such individuals but the Acts do not reference them explicitly. These amendments are required to provide for an explicit reference.

Amendment agreed to.

Bill reported with amendment.

Government amendment No. 9: In page 3, between lines 19 and 20, to insert the following: "Amendment of section 13 of Act of 1998 7. The Act of 1998 is amended in section 13 by - (a) designating the section as subsection (1), and (b) the insertion of the following subsection after subsection (1) (as designated by paragraph (a)):"(2) A body referred to in subsection (1) shall not discriminate against a person by publishing or displaying, or causing to be published or displayed, an advertisement in contravention of section 10(1) in so far as the advertisement relates to -(a) membership of that body or any benefits, other than pension rights, provided by it, or (b) entry to, or the carrying on of, a profession, vocation or occupation controlled by that body.".".

Amendment agreed to.

Government amendment No. 10 : In page 3, between lines 19 and 20, to insert the following:"Amendment of section 19 of Act of 1998 8. Section 19 of the Act of 1998 is amended in subsection (4)(a) by the substitution of “apparently neutral provision would put” for “apparently neutral provision puts”.”.

Amendment agreed to.

Government amendment No. 11: In page 3, between lines 19 and 20, to insert the following:"Amendment of section 22 of Act of 1998 9. Section 22 of the Act of 1998 is amended in subsection (1)(a) by the substitution of “apparently neutral provision would put” for “apparently neutral provision puts".".

Amendment agreed to.

Government amendment No. 12 : In page 3, between lines 19 and 20, to insert the following:"Amendment of section 34 of Act of 1998 10. Section 34 of the Act of 1998 is amended by the substitution of the following subsection for subsection (4):"(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if -(a) it is objectively and reasonably justified by a legitimate aim, and (b) the means of achieving that aim are appropriate and necessary.”.”.

Amendment agreed to.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Amendment No. 13 is a Government amendment. Amendment No. 14 is a physical alternative to amendment No. 13. Amendment No. 13, amendments Nos. 1 to 11 to amendment No. 13, and amendment No. 14 may be discussed together by agreement. Is that agreed? Recommital is necessary in this case.

Photo of Ivana BacikIvana Bacik (Independent)
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Having consulted the proposers of these amendments, while everyone is in agreement with the general grouping, Senators Power and Zappone suggest that we might discuss amendment No. 14 first and then group the 11 amendments to amendment No. 13 in under six different headings. It will speed up matters and facilitate a more straightforward discussion because the issues arising are complex.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Amendment No. 14 is a physical alternative to amendment No. 13.

Photo of Ivana BacikIvana Bacik (Independent)
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That is right.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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They have to be discussed together.

Photo of Ivana BacikIvana Bacik (Independent)
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We can discuss them together but we want to address our remarks to amendment No. 14 first.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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If it is Committee Stage, the Senators can speak as often as they want.

Photo of Ivana BacikIvana Bacik (Independent)
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We have recommitted.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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I presume they will be recommitted. They can be discussed together.

Photo of Ivana BacikIvana Bacik (Independent)
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We are proposing a slightly difference sequence of amendments. We are not disagreeing with the grouping. This will become clear as we progress.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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On the grouping, the Senators can speak to amendment first if they so wish but they can also speak subsequently on amendment No. 13.

Photo of Averil PowerAveril Power (Independent)
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I agree that we should take amendment No. 14 first because it is an alternative.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Senators can discuss amendment No. 14 first but we are taking the grouping. They have to be recommitted first, however.

Photo of Averil PowerAveril Power (Independent)
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I explained this to the Clerk of the Seanad prior to the debate because what we propose is somewhat complicated. There are 11 amendments to Government amendment No. 13, and amendment No. 14 is an alternative to amendment No. 13. We are, in effect, proposing to discuss 13 different issues which have been grouped together for the purpose of this debate. We are simply proposing that Members, in making their contributions, would do so in a structured way by agreeing to discuss amendment No. 14 first.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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As the amendments will be grouped together, Senators can speak when they want.

Photo of Averil PowerAveril Power (Independent)
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We want to explain what we are proposing to assist other Members in understanding the matter. We propose to debate amendment No. 14 first and when we proceed to amendment No. 13 and the 11 amendments to that amendment, we would debate them in six different sections. We would begin with amendments No. 1 to 3, inclusive, because they relate to the public-private distinction, followed by amendments Nos. 2 to 6, inclusive, because they relate to the propagation of religion, amendments Nos. 4 and 11, inclusive, in respect of ethos -----

Photo of Paddy BurkePaddy Burke (Fine Gael)
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The Senator can contribute as often as she wishes.

Photo of Averil PowerAveril Power (Independent)
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----- amendments Nos. 5 and 10, which provide for an employee's privacy, No. 8 in respect of marriage and No. 9. We are asking Members to make their contributions in a logical and structured fashion. It would be ridiculous if I was to speak about amendment No. 3 and another Member spoke about No. 3 or No. 9.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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They are all related.

Photo of Averil PowerAveril Power (Independent)
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We ought to deal with them in a sensible way.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Is it agreed to discuss them together in the format proposed? Agreed. Can the Senator advise us which amendment she wishes to discuss first?

Photo of Paddy BurkePaddy Burke (Fine Gael)
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What are the other groupings?

Photo of Averil PowerAveril Power (Independent)
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After No. 14, we would debate the 11 amendments to amendment No. 13 in the following order: amendments Nos. 1 and 3; amendments Nos. 2 and 6; amendments Nos. 4 and 11; amendments Nos. 5 and 10; amendments Nos. 8; and amendments Nos. 9.

Photo of David NorrisDavid Norris (Independent)
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Perhaps the Cathaoirleach would be kind enough to advise the Seanad of the groupings before they are discussed.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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They are her groupings. She can advise the House how she wants them to be addressed.

Photo of David NorrisDavid Norris (Independent)
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Perhaps the Cathaoirleach would remind us which groups we are discussing.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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They are being recommitted on Committee Stage, so the Senator can speak as often as he wishes. What about amendments Nos. 5 and 7?

Photo of Averil PowerAveril Power (Independent)
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As most of them are my amendments, when I rise to propose one I will be clear about the grouping being discussed.

Photo of David NorrisDavid Norris (Independent)
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Senator Power will say it. Excellent.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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What about amendment No. 7?

Photo of Averil PowerAveril Power (Independent)
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Amendments Nos. 5 and 10 are grouped together because they relate to employee privacy. Amendment No. 6 is with amendment No. 2.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Amendment No. 7.

Photo of Averil PowerAveril Power (Independent)
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Amendment No. 7 is in my name but I will not be moving it because is sufficiently addressed in the Government's Report Stage amendments. That is why I did not mention it.

Bill recommitted in respect of Amendments Nos. 13 and 14.

Government amendment No. 13: In page 3, to delete lines 20 to 35, and in page 4, to delete lines 1 to 38 and substitute the following:"Amendment of section 37 of Act of 1998 11. Section 37 of the Act of 1998 is amended -(a) in subsection (1), by the substitution of “Subject to subsections (1A) and (1B), a religious, educational or medical institution” for “A religious, educational or medical institution”, and (b) by the insertion of the following subsections after subsection (1):"(1A) Where an educational or medical institution referred to in subsection (1) is maintained, in whole or in part, by monies provided by the Oireachtas, more favourable treatment on the religion ground referred to in paragraph (a) of that subsection shall be taken to be discrimination unless -(a) that treatment does not constitute discrimination on any of the other discriminatory grounds, and (b) by reason of the nature of the institution’s activities or the context in which the activities are being carried out, the religion or belief of the employee or prospective employee constitutes a genuine, legitimate and justified occupational requirement having regard to the institution’s ethos. (1B) Where an educational or medical institution referred to in subsection (1) is maintained, in whole or in part, by monies provided by the Oireachtas, action of the type referred to in paragraph (b) of that subsection shall be taken to be discrimination unless by reason of the nature of the employment concerned or the context in which it is carried out -(a) the action is objectively justified by the institution’s aim of preventing the undermining of the religious ethos of the institution, and (b) the means of achieving that aim are appropriate and necessary.(1C) An action referred to in subsection (1B) shall not be objectively justified in accordance with paragraph (a) of that subsection, or appropriate and necessary in accordance with paragraph (b) of that subsection, unless the action of the institution is -(a) rationally and strictly related to the institution’s religious ethos, (b) a response to conduct of the employee or prospective employee undermining the religious ethos of the institution rather than a response to that employee’s, or prospective employee’s, gender, civil status, family status, sexual orientation, age, disability, race or membership of the Traveller community, and (c) proportionate to the conduct of the employee or prospective employee, as the case may be, having due regard to -(i) any other action the employer may take in the circumstances, (ii) the consequences of that action for that employee or prospective employee, and (iii) the actual damage caused to the religious ethos of the institution by the conduct of that employee or prospective employee.”.”.

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

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

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

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

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

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

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

Photo of Paddy BurkePaddy Burke (Fine Gael)
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I call on Senator Averil Power to formally move amendment No. 1 to amendment No. 13.

Photo of Katherine ZapponeKatherine Zappone (Independent)
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I will move amendment No. 14.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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To enable the discussion to go ahead, Senator Averil Power needs to move amendment No. 1 to amendment No. 13 first. Amendment No. 14 is being discussed with the group that includes amendments Nos. 1 to 11, inclusive, to amendment No. 13.

Photo of Averil PowerAveril Power (Independent)
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I will formally move amendment No. 1 to amendment No. 13 and we will then discuss the amendments in order.

Photo of Ivana BacikIvana Bacik (Independent)
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We are discussing amendments Nos. 1 to 11, inclusive, to amendment No. 13.

Photo of Ivana BacikIvana Bacik (Independent)
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There are 11 amendments to amendment No. 13 which are being discussed with amendment No. 14.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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We need Senator Averil Power to open the discussion on amendment No. 1 to amendment No. 13.

Photo of Averil PowerAveril Power (Independent)
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I wish to move amendments Nos. 1 to 11, inclusive, to amendment No. 13 and the ghost amendments Nos. 12 and 13.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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We are dealing with amendment No. 1 to amendment No. 13.

Photo of Averil PowerAveril Power (Independent)
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I move amendment No. 1 to Government amendment No. 13:



In the text proposed to be inserted by paragraph (b), to delete "(1A) Where an educational or medical institution referred to in subsection (1) is maintained, in whole or in part, by monies provided by the Oireachtas, more favourable treatment on the religion ground referred to in paragraph (a) of that subsection" and substitute the following:"(1A) In respect of an institution to which subsection (1) refers, more favourable treatment on the religion ground referred to in paragraph (a) of subsection (1)".

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Does Senator Katherine Zappone wish to second the amendment?

Photo of Katherine ZapponeKatherine Zappone (Independent)
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Yes. I will speak to amendment No. 14.

As the Minister of State said, we are at the heart of the Bill. I acknowledge the extensive work the Government and its officials have done on the Bill, as exemplified by the Report Stage amendments. I understand the Government and the original sponsor of the Bill, Senator Ivana Bacik, are extremely keen to get it right as best we can.

Amendment No. 14 is a logical response to amendment No. 13, about which I have very strong feelings, coming from a locus standiof sorts derived from what my spouse, Dr. Ann Louise Gilligan, and I had to face over a decade ago. I welcome her, as I welcome all of the other advocates present from the INTO, the LGBT helpline and GLEN, including Dr. Fergus Ryan and others, but I particularly welcome her because she took a case against the State while she was an employee of an institution managed by the Catholic archbishop. She was effectively outed in the case, by her own choosing, as a married lesbian and at the time section 37(1)(b) was staring her in the face. Amendment No. 14 proposes to delete it. If the Government was to accept it, we would not need Government amendment No. 13.

The section referred to states a faith-based organisation, including an educational institution, is not deemed to discriminate if it takes action which is reasonable necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution. Could conduct in public which clearly demonstrates that a woman is a married lesbian be reason enough in an educational institution managed by the Catholic archbishop for that institution to take action against her with regard to her employment? Would that action not be deemed to be discriminatory in the eyes of the law? The answer was "Yes" and it is still the answer. Was she afraid? The answer is yes. Did that stop her? The answer is no. However, there should be no fear and no chill factor, as the Minister of State called it. There should be only freedom to live as who we are and to make the choices we make, consonant with who we are, rather than denying who we are. We should place this alongside the freedom to respect an employer's ethos and values, although we may not agree with them.

As lawmakers, what should we do to section 37(1)(b) of the 1998 Act in order that such conduct, or other conduct that flows from an employee's identity, is not reason enough for a religious institution to discriminate against that person to protect its ethos? Amendment No. 14 proposes that we delete the offending section from our current law. Many advocates and advocacy organisations have argued for this in the past, but I will put forward my own arguments.

Despite what the Minister of State said, we have still not heard a full response from the Government on why we cannot delete the section. The Minister of State said on Committee Stage and has repeated today that the Supreme Court, in a 1996 judgment, upheld the constitutionality of section 37 because it was viewed as a reasonable balance between the competing constitutional rights involved. He has said that while we can seek to find a new balance, the better to meet the rights of employees, the logic of the Supreme Court's decision outlines the need for a balance to be struck and that it is not simply a matter of deleting certain elements of the existing Act.I still disagree, which is why I am moving this amendment.

It is important for the Government to elaborate even more than the Minister of State has done today in order to provide a substantive and reasonable rejection to what so many people in Ireland advocated for to offer absolute assurance to Irish employees working within religious institutions that deliver public services. Once again, I propose that it is more effective to delete existing section 37(1)(b). I will put forward two reasons for this. First, it is because the institution's right to protect its religious ethos is already adequately protected in Irish law. I agree that there is an important balance to strike between the protection of an institution's religious ethos and the rights of an employee to pursue their career without fear and discrimination. However, religious ethos is protected by sections 16, 25, 37(1)(a) and 37(2) of the Employment Equality Act and a number of other laws. Section 37(1)(a) allows an institution under certain conditions to give preference to members of its own faith for a job, promotion or particular duties. Sections 37(2) and 25 permit all employers to treat people differently where there is a genuine and necessary occupational requirement. These sections, coupled with the duties arising from people's individual employment contracts, form an adequate safeguard for the religious ethos of the institution.

My second argument for the deletion of I consider to be an offensive section in the former Act is the fact that although the Supreme Court found the section to be compatible with the Constitution, which the Minister of State has just said and which I accept, I do not think it is by any means clear that the Constitution as interpreted by the courts requires us to have this exception. Does our Constitution require the additional protections of ethos found in section 37(1)(b)? The Constitution as interpreted in 1996 might have allowed for an exception like this but by no means would the Constitution require it, as far as I can determine. I do not think the court ever said that it was required. As per my first argument, it is already adequately protected. Those are the arguments to delete the offensive section. I believe that it would provide an absolute guarantee to protect the employee while our laws adequately protect a religious institution's ethos. I hope the Minister of State might shed a bit more light on that.

Photo of Averil PowerAveril Power (Independent)
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I support where Senator Zappone is coming from in that, ideally, I would prefer to see section 37(1) deleted rather than amended. I know the Minister of State will say that his legal advice is that this is not possible. I brought forward the first Bill on this issue in 2012 and I must be honest and say that the legal advice I received was that the best we could do was amend it and that it would not be possible to delete it. I wish we could delete it but I must be honest. I cannot say that I brought forward a Bill that seeks to amend the section and then put pressure on the Minister of State politically to delete it when I had to accept that this may not be possible constitutionally.

Our task today is to come up with the strictest possible wording. That is where I am coming from in terms of the amendments I have tabled today. The Government Report Stage amendment is a significant improvement on the previous text and does address some of the concerns I raised on Second and Committee Stages about the fact that the original text did not require any conduct on the part of the employee. It would have been possible for the employer to discriminate against someone or at least to make a case for discrimination solely on the basis of who the person was. That is my most fundamental objection to section 37(1). It is incredibly unfair treatment of people who are very good at their jobs and who just want to be judged on the same basis as everybody else, namely, their performance in the workplace, but who are subjected to unfair discrimination and the fear and threat of facing such discrimination because of who they are - because they are gay, lesbian, bisexual, transgender, divorced or a single parent. That is repugnant to any sense of fairness and decency and that is the fundamental thing we must change. I accept that the Bill goes so far in respect of that.

The Government amendment now requires that there be conduct on the part of the employee. I have some concerns. We need clarity around some of the issues. It does not define conduct or say that it is restricted to the workplace. It uses the words "genuine occupational requirement" but we are not clear what they mean or even what the ethos of the institution is because there is no requirement to publish the ethos. I have tabled a number of amendments that would deal with those issues and I propose to raise them when we come to discussing amendments Nos. 1 to 11.

I completely understand where Senator Zappone is coming from. My preference would be deletion. In trying to achieve as much as I can, I will push for each of the amendments I have tabled to be accepted. I think they are all reasonable. They are based on solid legal advice from people with expertise in this area and I hope that the Minister of State will go through them one by one as we get to those issues to see whether they can be incorporated into the current wording or not. It is essential that we give people the clarity and comfort they deserve. I know the INTO LGBT group is here with us today and the ASTI has also highlighted the issue of LGBT teachers. It is so that people are free to be themselves in the workplace, get on with their jobs the same as everybody else and not have to carry the fear and misery of pretending to be somebody else, hiding from their colleagues or not being free to be open about their personal lives.

I hope we are all together on this issue. I certainly see it as one where we can achieve something on a cross-party, non-party basis. It is not a party political issue, which is why when I published my Bill in 2012, I spoke to the two Ministers concerned before it came to the House and engaged in a lot of lobbying. I have worked with Senators Bacik and Zappone on this issue since then. I hope we will take that spirit of co-operation as we go through each of the issues today and do what we can to tighten up this revision as much as possible.

Photo of Ivana BacikIvana Bacik (Independent)
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In welcoming the Minister of State, I should have acknowledged his long personal commitment in respect of this issue and the fact that he was an original sponsor of the Bill when we introduced it in 2013. In respect of amendment No. 14, I echo the words of Senators Zappone and Power. My personal preference without reference to any laws would be simply to delete section 37(1)(b) as well. As Senator Power acknowledged, we have received clear legal advice not just as individuals but in terms of the legal opinion of the Irish Human Rights and Equality Commission, which was published a year ago. I understand that the Government has received advice from the Attorney General that deletion is not possible. I am looking at the words of the senior counsel who drafted the legal opinion for the Irish Human Rights and Equality Commission. They stated that removing section 37(1) entirely could constitute a violation of rights of employers and employees to religious freedom. They went on to say that they viewed this option as far too legally uncertain. The last thing we want to do is to open up this important and overdue Bill to legal challenge. Unfortunately, we are in a position where we must amend rather than delete section 37(1), particularly section 37(1)(b). Therefore, we must make sure that the amendment offers as strong a protection against discrimination as possible.

In respect of amendment No. 13, which was moved by the Minister of State, I am glad to hear him say that the Bill as published is largely constitutionally sound. Although the Government amendments do extensively change the text of the original Bill, it is clear that the structure of the Bill is maintained and that some of the key principles are maintained within it. As others have said, the amendments significantly improve the Bill and greatly strengthen and enhance protection for employees against discrimination, which is hugely important. Amendment No. 13 strengthens the protections against discrimination both in terms of section 37(1)(a), which concerns more favourable treatment on religion grounds, and, more importantly, section 37(1)(b), which allows employers to take action reasonably necessary to prevent employees from undermining religious ethos.The new test that will be inserted into section 37 if amendment No. 13 is passed is very strong. It sets the bar much higher.

I will speak generally on Government amendment No. 13 before we get into the individual amendments to the section. The new subsection (1A) that is proposed to be introduced would change the nature of the current section 37(1)(a) which allows more favourable treatment on the religion ground. The new section 37(1A) would say that where a publicly funded educational or medical institution gives more favourable treatment on the religion ground, that shall be discrimination. It is clearly stated that it shall be discrimination unless it "does not constitute discrimination on any of the other discriminatory grounds, and ... [that] the religion or belief ... constitutes a genuine, legitimate and justified occupational requirement having regard to the institution's ethos". That is a much stronger statement against discrimination. The chilling effect, of which the Minister of State has spoken and of which we are all very aware, is particularly evident in the current section 37(1)(b) which, as I say, allows employers to take action against employees where they are seen to undermine religious ethos. The new subsections (1B) and (1C) dramatically change the position for employees or prospective employees in publicly funded education or medical institutions - schools or hospitals.

Amendment No. 13, as I see it, would introduce a new one plus five test for publicly funded institutions. The provisions say that it shall be discrimination where any action of this sort is taken by an employer. It is presumed to be discrimination. The five test is, first, that the action must be objectively justified by the aim of preventing the undermining of the religious ethos. Second, the means of achieving the aim must be appropriate and necessary. In subsection (1C) there is a threefold further test that an employer must get over to show that an action is objectively justified and that the means used are appropriate and necessary and, crucially, in subsection (1C)(a), (1C)(b) and (1C)(c), the action must be rationally and strictly related to the religious ethos of the institution which, effectively, requires an institution to show what its ethos is. It is saying, in effect, that the institution must show how the action it has taken is rationally and strictly related to its ethos. That is hugely important. Second, it must be a response to the conduct of the employee. I think Senators Power and Zappone have referred to this. This is a hugely important insertion, that there is a requirement of conduct rather than just of status. Specifically subsection (1C)(b) says that the action of the employer cannot be a response to the employee's or prospective employee's gender, civil status, family status, sexual orientation, age, disability, race, or membership of the Traveller community. Finally, in subsection (1C)(c), the action of the employer must be proportionate to the conduct of the employee or prospective employee. There is a further threefold test as to how a court or tribunal would measure proportionality, looking in particular at the consequences of the action for the employee or prospective employee, at any other action the employer could have taken and, crucially, the actual damage caused to the religious ethos of the institution. While I understand it is difficult to define ethos or to require institutions to define religious ethos, effectively the combined text of amendment No. 13 would require an employer seeking to justify discriminatory action to put forward a definition of its ethos to justify the action it had taken to prevent an employee undermining its ethos. I think the bar is set so high that it would be almost impossible to envisage a situation in which an employer could discriminate against an employee under this provision, and that is to be welcomed.

I accept the Minister of State's point that this is a great improvement on the mechanism in our original Bill, which was simply that directions or guidelines could be issued on the criteria in section 37(1)(b). I think this hugely strengthens it because it sets out this one plus five test by which publicly funded institutions will be judged if they attempt to take action against employees that is discriminatory.

Photo of David NorrisDavid Norris (Independent)
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I think in these amendments we are getting to the nub of the action. I commend the Minister of State on his amendments although it seems to be an incremental approach. I remember opposing this section strongly when it was introduced by the former Minister, Mervyn Taylor, but I think there should be certain principles enacted and enshrined. It is obvious that State-funded institutions should not be allowed to discriminate at all on the grounds of religion or belief. It would be mad to allow the State to fund religious discrimination against its citizens, which was, in effect, the situation under the original Bill.

It is not just gay people who are involved. There is also a question of religious belief and the question of people who are atheist. I am a retired fairy but I am definitely not an atheist, but I think that atheists have rights as well. I remember when we removed the special position of the Roman Catholic Church from the Constitution, so there is no longer any constitutional reason this should be sustained. The State has a duty to be neutral and impartial between religious, non-religious and philosophical beliefs. It has been stated that Directive 78/2000 of the European Union requires member states to allow discrimination on the ground of religion or belief, but this is not the case at all. Article 4 merely permits discrimination if countries want it but it also allows for far wider grounds for religious freedom. I will quote from the record of the Seanad - I think this is Senator Bacik but if I am wrong I am sure she will correct me:

We were advised, however, that EU Directive 78/2000 requires a somewhat more conservative approach. Article 4 of that directive gives protection to the right of churches to require individuals working for them to act with "loyalty to the organisation's ethos".
And:
There is a constraint not only in domestic law but also under EU Framework Directive 78/2000. Article 4 of the directive places constraints on how we can move forward on this, particularly the reference to ensuring "national practice as existing as the date of adoption of the directive".
I believe this is based on a complete misreading of the EU directive because what Article 4 actually says is that member states may - and I emphasise the word "may" - provide that a difference of treatment shall not constitute discrimination in certain circumstances. In Article 4(2), "Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practice existing at the date of adoption of this Directive" in certain circumstances. It also reads: "This difference of treatment shall be implemented taking account of Member States' constitutional provisions and principles, as well as the general principles of Community law," and "this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation's ethos." It is really a question of "may" and "shall". The European Union directive does not oppose the kind of amendment we were suggesting but it gives freedom for states to provide a difference in treatment and apparent discrimination and so on and so forth, but it is a question of "may" all the time. It does not prescribe that this is what we have to do.

To make things even clearer, Article 8 ensures minimum requirements, not maximum requirements, for protecting equality and states: "Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive." That gives us carte blancheto go beyond what was being suggested. It goes on to state: "The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive."

Turning to the idea of including atheists in this, the European Court, in a judgment, recognised:

[T]he supporters of secularism are able to lay claim to views attaining the "level of cogency, seriousness, cohesion and importance" required for them to be considered "convictions" within the meaning of Articles 9 of the Convention and 2 of Protocol No. 1 ... More precisely, their views must be regarded as "philosophical convictions", within the meaning of the second sentence of Article 2 of Protocol No. 1, given that they are worthy of "respect 'in a democratic society'", are not incompatible with human dignity and do not conflict with the fundamental right of the child to education.
While the churches may propose and maintain very rigid doctrinal positions, in a democracy one should consider the behaviour of people, which is instructive in this regard. An MRBI poll conducted in 2012 found that 78% of Irish Catholics follow their consciences rather than church teaching when making moral decisions. This is an interesting finding. What constitutes the church and its ethos? Is it a compendium of doctrinal statements of a particular church or the belief and practice of the majority of people who constitute that church? I am a churchgoer and also attend Roman Catholic churches. I frequently hear priests of various denominations state the church is not Rome or Canterbury but the people. Almost 80% of the people are making up their own minds on questions of ethos.

Implicit in all of this is a distinction between State-funded bodies and bodies not funded by the State. I admit that there may be some small grey areas in this regard but when it is a question of fundamental human rights, the latter should be held to the same human rights standards as State-funded bodies. It is apparent and obvious that the State should not fund discrimination. However, it is also true that it should not tolerate discrimination. I thank the Cathaoirleach for his indulgence.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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Senator Zappone seeks to delete a significant section from the Act. I wish we could do so. I also wish we were not dealing with the existing education system and Constitution or the reality in which we find ourselves. Yesterday, when I met many of the groups represented in the Gallery, I made the point that the education system perpetuates inequality by its very constitution. Since its establishment, the State has abdicated responsibility for education by outsourcing the education system. It was decided to have a State-funded education system, rather than a State education system. Schools were established and the State placed them out for tender and asked patron bodies to oversee the running of them. I do not like this but it is the reality within which we must operate. Unfortunately, whatever manner or means we employ to regulate this area, it will never be perfect and education will never be as equal as we would like it to be.

I meet many deputations who raise the issue of equality in the education system. For example, parents ask why they must baptise children to send them to a local school. I am deeply uncomfortable with the idea of having a number of denominational schools in a given area, with children going into school through different school gates. We consistently separate children on the basis of religion and gender. Moreover, because the education system is fundamentally based on the idea of competition, it is inevitable that children who are more disadvantaged lose out and those who are more advantaged gain.

I fully agree with the approach proposed by Senator Zappone because the current position is unjust. While the Bill focuses primarily on employees, what is the child of a lesbian, gay, bisexual or transgender, LGBT, couple, a divorcee or a single parent expected to feel in this scenario? I am keenly aware of this issue but what does one do when one is charged with responsibility of legislating within constitutional confines? That is the position in which this Government finds itself and any other Government would find itself. I would love to delete the section, as proposed in the amendment, but I predict that if we were to do so, we would be on the losing side in a case before the High Court or Supreme Court. It is inevitable that a court case will be taken in response to this legislation because that is what people tend to do in these circumstances. This will mean we will be back working off the original section 37, rather than the amended section we are trying to introduce today.

Senator Bacik stated that the mechanism we are trying to insert in the Act would make it almost impossible for any employer to suggest that anyone, on the basis of his or her nature, is undermining anything. By continuing to allow more than 90% of the infrastructure of primary level schools to remain in a religious ethos, we will perpetuate inequality. That is a fundamental reality of the position in which we find ourselves and that position is backed up by the Constitution.

People tell me how wonderful the education system is in Finland and what wonderful literacy statistics it produces. In Finland, there is one school in each school district, which means there are no primary, secondary, boys' or girls' schools. Schools in Finland are like palaces because they reflect the Finnish value system and the beliefs of Finnish people. Regardless of who one meets from the Finnish political system, whether left-wing, right-wing, centre-left, centre-right, far-left or far-right, all of them will tell visiting deputations, and I was a member of one such deputation, that the concept underpinning their education system is equality. Fundamentally, all of them believe in equality. In contrast, the Irish education system is underpinned by patronage and neither the child nor the employee is at its centre. Ideology and the rights of patrons to perpetuate their ethos are at the core of our education system. This approach also impacts on medical institutions.

While we are waiting for a revolution in this area - I will be at the front of it - we must deal with the current constitutional reality. Unfortunately, the constitutional constraints within which we operate mean that the best we can do is raise the bar. Notwithstanding these constraints, what we are doing is no mean achievement. I do not want anyone to conclude that my comments are undermining what the Bill will achieve for people working in the school system or a medical institution who believe they cannot be themselves. I am keenly aware of this issue, having dealt with it myself. While I would love to be in a position to delete section 37, to do so would create an open goal for those who want to do down this agenda and inevitably result in us having to deal with the existing section until we radically overhaul the education system, which could take forever.

The European Union is happy for us to constitute our educate system in any way we wish. This is the system we have and I am trying to operate within it.

Photo of David NorrisDavid Norris (Independent)
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The Minister of State's words are well spoken.

Photo of Ivana BacikIvana Bacik (Independent)
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I echo the comments of the Minister of State who helpfully provided context for this issue, on which I spoke on Second Stage. Unlike Senator Norris, I am an atheist and I believe it is outrageous that we continue to-----

Photo of David NorrisDavid Norris (Independent)
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I will pray for the Senator.

Photo of Ivana BacikIvana Bacik (Independent)
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I am always grateful for Senator Norris's prayers. Many people have offered to pray for me in the past.

On a serious note, it is outrageous that any teacher should have to be of a particular religion and that 95% of schools are under religious patronage. As a parent, I fought against this and was instrumental in the establishment of a new multidenominational school to try to break the stranglehold the churches, in particular the Catholic Church, have on our primary and secondary education systems. For this reason, I would be the first to fully endorse the Minister of State's comment that a revolution is required. Unfortunately, it is extremely difficult to upset the status quo. Many parents who are not believers are proponents of the status quo in faith schools attended by their children and for good reason, namely, their desire not to rock the boat for the sake of their children. A major issue here is the context in which the Bill is being debated.

To address the point about what we can do within the confines of the Constitution and European Union rules, it is clear from a reading of the report of the Irish Human Rights and Equality Commission that while provisions similar to section 37 are in place in many European Union member states, they do not have the significance they have in Ireland because schooling in these countries is not religious-based.It is a state-based, secular system with a tiny minority of faith schools which are entitled legally to discriminate on a section 37-type model. If one looks at the Dutch, Danish or British legislation, one will see there are similar provisions. It is only in our system section 37(1) has this immense significance for all of us because 95% of the schools are under religious patronage and Educate Together and multi-denominational schools form only a tiny minority. That is the context. I wish it were not like that but one must be realistic.

Let me put it this way, as the Minister of State stated, this is no mean achievement. It is 17 years since section 37(1) was enacted. It is 30 years since Ms Eileen Flynn was sacked from the Holy Faith school in New Ross. It is not a mean achievement to overturn the potential for discrimination that still exists in law and that is what this Bill will do.

Photo of Martin ConwayMartin Conway (Fine Gael)
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It would be remiss of me not to echo and endorse the remarks of the Minister of State which are correct. I fully agree with them. I do not think there is anything in his summation that I do not agree with.

I come from a rural part of Ireland where the Roman Catholic Church made a significant contribution to teaching and education. If they were not there, it probably would not have happened at all or it would have been primitive. However, they should not have had to do it and they should not have been asked to do it, and now they should not be doing it.

In the town where I live there are three secondary schools even though there is a population of less than 1,000. There is a school population, if one were to combine the three schools, of 500. I am on an amalgamation committee to try and get a community school and we are making significant progress in that regard.

Photo of David NorrisDavid Norris (Independent)
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Then there would be four schools.

Photo of Martin ConwayMartin Conway (Fine Gael)
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There are four primary schools as well. It is hilarious. It is not good for children and it does not create equality. It certainly does not create opportunity. Maybe part of the problem is that so many Oireachtas Members are former teachers.

Photo of Ivana BacikIvana Bacik (Independent)
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Present company excepted.

Photo of Martin ConwayMartin Conway (Fine Gael)
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It is good to hear a former teacher express the observations he did because I would think he would be in a minority in the Houses of the Oireachtas in terms of his view. Certainly, in my parliamentary party, I hear Trojan defence of the Catholic Church's operation within education and its right of place, etc. I never seek to be in any way disrespectful to them, and certainly I acknowledge all of their achievements, but education in a modern Ireland is not what they should be doing. It is what the State should be doing. We fund it but we do not control it.

Photo of Averil PowerAveril Power (Independent)
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This has been a useful debate. It is useful to have that discussion about the broader context in which we operate here and I agree with much of what the Minister of State stated in that respect.

I share the concerns that have been outlined about the distinction in the Bill between public and private organisations which is an unjustified one, the lack of protection on the religious ground for teachers and other staff, and concerns about issues such as privacy.

We are debating amendment No. 14, which is the proposition to delete the section instead of the approach proposed by the Government. It is obvious, if nothing else, from the balance of power in the House, that the Government amendment will pass. I have a number of amendments down to the Government amendment to deal with the issues raised by Senator Norris and others and it would be helpful if we could move on to these amendments so that we can debate my proposals on those individual issues and tease them through.

Photo of Martin ConwayMartin Conway (Fine Gael)
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We all would agree with that.

Photo of Averil PowerAveril Power (Independent)
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While I must accept reluctantly that the Government has been advised not to proceed with the deletion route, as I said, I was given that same advice when I prepared my former party's 2012 Bill, I have to accept that is our starting point. However, the Minister of State could go much further and he could tighten up the language a good deal. I would like to get to the point where we can discuss the individual suggestions that I have made in that regard so that we can tease them through.

Photo of David NorrisDavid Norris (Independent)
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I will be brief and I hope we will then move on. I congratulate the Minister of State on what he has just said. It was an excellent speech and epitomised the core values of this Republic. I was proud listening to him. He explained clearly the difficulties and the way in which he is constrained, but he put his own ideals clearly on the record of this House and I compliment him on doing that.

If religion is so cherished by parents, they should teach it to their children. It should not be the responsibility of school. School deals in fact, not beliefs, unless it is treated as cultural artifacts. I say this as somebody who is a believing member of a Christian church.

The church is moving as well. I noted in the past few days a statement from a Roman Catholic bishop about the baptism of same-sex couples, making the point that there should not be any discrimination or distinction in the way in which these children are treated and no attempt to embarrass the parents. That is a very significant move forward by the Roman Catholic Church. It is not a church to which I belong but I applaud the bishop for making this position clear. I doubt if that would have happened if there had not been debates such as the debate that is taking place here today.

Photo of Katherine ZapponeKatherine Zappone (Independent)
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Clearly, from the Minister of State's response, he was a fine educator and I expect that he will be one of the leaders of that revolution that he speaks about.

It has been a useful debate. As Senator Power referred to, even in her own Bill there was not the deletion of this section even though many advocates for many years have argued for that. I thought it was important to put it forward now and to get this kind of response. Our time has not been wasted.

I suppose the heart of my questioning there had to do with the question as to does the Constitution, as the Minister of State said, back up what it is that he is doing, as distinct from deleting the provision, or does it require it not to be deleted. I appreciate he has the legal advice and Senator Power has had legal advice. I have had other legal advice. I have read the Irish Human Rights and Equality Commission's. Legal advice differs. I still stand not fully convinced that the Constitution requires that we keep it. Am I the only dreamer? Am I the only idealist?

Photo of David NorrisDavid Norris (Independent)
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Oh come on, darling.

Photo of Katherine ZapponeKatherine Zappone (Independent)
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It is not a matter of personal preference. It is because, in terms of the arguments, I am still not adequately convinced that we absolutely require to keep it from a legal and technical perspective.

Having said that, I fully accept and agree that it is no mean achievement what the Government is putting forward here today. We have some amendments with which we hope to improve that and maybe the Minister of State might consider some of those, and I acknowledge that extraordinary contribution that the Minister of State is making, especially supported by Senator Bacik and others.

Photo of Averil PowerAveril Power (Independent)
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Amendments Nos. 1 and 3 to amendment No. 13 are designed to remove the distinction in the text of the current wording from the Government between public and private institutions. Essentially, they would mean that the tougher conditions in subsections (1)(a) to (1)(c) would apply to all religious educational and medical institutions with the religious ethos covered by subsection (1) whether they are funded by the State or not.

The distinction between State-funded bodies and those not funded by the State is not made in the main body of the Employment Equality Act. Generally, self-funded businesses are not exempted from equality requirements simply because they do not receive State funding. As a general principle, the Employment Equality Act imposes the same obligations on State employers and State-funded bodies as it does on private businesses. The Government's amendment considerably improves the position for those working in State-funded bodies. However, it leaves the existing wording of section 37(1) for non-State-funded bodies.This potentially allows schools and medical institutions to buy their way out of compliance with the tougher requirements and clearly privileges wealthier communities, schools and organisations that are better able to survive without State funding. It is an unjustified distinction that will leave people who work in private institutions, for example private nursing homes which do not receive any funding from the State, without the protection they deserve. It will leave them in exactly the same situation that we are now saying is utterly unacceptable in the context of public employees. They will be left in the same precarious, frightening and uncertain situation and that is not good enough.

It is also important to note the distinction between State funded and privately funded bodies is not referenced in any way in article 4 of the framework directive. While there is possibly some logic in holding State funded bodies to more rigorous tests than for those not funded by the State, the mere fact a body is not funded by the State should not give it a licence to discriminate more easily. No institution should be allowed to exclude or treat somebody less favourably on account of, for example, their sexual orientation or civil status. However, that is what is happening here. The new test states that somebody may only be subjected to discrimination if they have engaged in some form of conduct which amounts to an undermining of the ethos, but that test will not be in place for employees of private institutions. Therefore, they will continue to fear that by merely being themselves and merely being open about the fact they are lesbian, gay, bisexual or transgender or that they are in a non-marital relationship or they have a child outside marriage or about any other aspect of their personality and personal relationships, the will be subjected to discrimination. This is utterly unacceptable. It is unjustified and is, arguably, repugnant to EU law.

EU law is, of course, superior to our Constitution. The European directive does not make a distinction between public and private organisations although it does provide for an ethos exemption. The Government has pointed to that exemption on grounds of ethos, but the EU directive expressly states that the exemption should not justify discrimination on a ground other than religion, such as, for example, sexual orientation, age or disability. Nor does the directive provide any basis for a distinction to be made between State funded and non-funded institutions. While it permits more favourable treatment to be made on the religion or belief ground alone, it does so only where by reason of the nature of the activities or the context in which they are carried out, a person's religion or belief constitutes a genuine, legitimate and justified occupational requirement.

The Minister of State proposes to leave the wording in section 37(1) that an employer can act if he believes that such action is reasonably necessary to protect ethos and this is the only statement in respect of private institutions. However, the directive goes much further and makes it clear that the test the Department is applying for public bodies, which makes it clear it must be a genuine occupational requirement, should also be applied to private bodies. It expressly says this in the exemption the Government is relying on. It says the exemption can only be relied on where the person's religion or believe constitutes a genuine, legitimate and justified occupational requirement. Therefore, the Government's proposed wording falls short of the requirements set out in the directive. I believe that for that reason it is repugnant to the directive.

A European Commission report from 2007, entitled Religion and Belief Discrimination in Employment - the EU Law, by Professor Lucy Vickers of Oxford Brookes University, states that in Ireland too, section 37(1) of the Employment Equality Act contains an exception to the non-discrimination principle for the purposes of maintaining the religious ethos of an institution. Professor Vickers states then states that this is broader than is allowed for in the directive, as it does not provide that religion or belief must be relevant to the particular job in question, nor does it limit the exception to discrimination based on the grounds of religion or belief so that it can not be used to justify discrimination on another ground. Elsewhere, Professor Vickers has said that article 4(2) of the directive allows for exceptions allowing religious organisations to maintain a religious ethos and require loyalty of staff to that ethos, but only where such exceptions constitute a genuine, legitimate and justified occupational requirement in regard to the institution's ethos.

I have tabled these amendments to ask the Minister of State to look again at this issue. I welcome the fact that we are making improvements the protection for public employees, but there is a serious gap in the legislation in that sufficient protection is not being provided for those who work in the private sector. This distinction is not made in the EU directive. It will leave people in private institutions, such as private nursing homes, fully private primary schools and other private institutions that would fit under the definition of private body in the legislation, without the protection we are providing for others. That is unacceptable. It would be preferable to distinguish based on the requirements of the role, what the job is, whether working in a private or public context. With this legislation we should be asking what exactly is their role. We should ask whether it is a role that actively involves propagating a religion, such as the role of rabbi, priest or minister. We would accept that institutions, whether public or private, have a right to hire such people based on their religious belief. However, if it is a role that is in no way related to such requirements, such as a gardener in a convent or an administrator, accountant, lawyer, teacher or doctor in a private institution where their job has nothing to do with ministering a particular faith, no institution public or private should be allowed to discriminate against that person solely on the grounds of their sexual orientation, gender, family status or any other inherent personal characteristic.

Photo of David NorrisDavid Norris (Independent)
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I have already put forward my reasons for opposing differentiation between publicly funded and privately funded bodies. I do not intend to repeat all of that. However, I mentioned a grey area. I do not think it is appropriate for atheists to teach religion, except in a historical, cultural context. Children always know when somebody is not being true to themselves. I also believe it is a violation of the conscience of atheists to have to teach religion. If I was an atheist, I bloody well would not teach religion. I would simply refuse to do so.

I also see the possibility of such situations arising within churches. Obviously a priest will not be hired unless he is ordained. However, priests can move around and can lose their faith. I do not think it would be appropriate for a church to install a rector, vicar, dean or whatever else, if he has publicly stated that he does not believe in God or the divinity of Christ and does not believe in the immortality of the soul. These are three fundamental beliefs of Christianity and if somebody denies them, it is not appropriate that he should be appointed. A case of this nature arose in the Church of Ireland and it had, for the first time in many years, a heresy hearing on the issue. What I would have done in that situation was to allow the person take evensong, take matins, visit the poor, get his wife to or make jam himself, but not celebrate communion or mass because that would be an absurdity as a non-believer.

I see certain areas where there should be some discrimination. It is obvious it should be done, because not to do so would constitute a violation not just of children's right to an appropriate and adequate teacher, but also of the rights of a conscientious atheist. If I was an atheist, I would simply refuse to teach Christianity as if it was true. I think it is wrong to teach it if I do not believe it. If I do not believe in God, I will not go around teaching children to believe in God. That is morally reprehensible.

Photo of Rónán MullenRónán Mullen (Independent)
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I did not get an opportunity to contribute to this debate on Second Stage.

Photo of David NorrisDavid Norris (Independent)
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The Senator was electioneering.

Photo of Rónán MullenRónán Mullen (Independent)
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I have followed the progress of this Bill carefully through the House, mainly from my office. I am anxious to put on record my support for the Bill and my opposition to the amendments proposed.I have followed much of the debate from my office and I have found it very interesting and revealing. Thanks to the operation of the Irish Constitution and the intervention of the courts in their decisions we have a sensible Bill which seeks to reconcile competing aims to do with the rights of employers and those who have funded schools to promote their vision about life and the meaning about life and reality, which is fundamental to the educational enterprise. I speak as somebody who sits on the board of CEIST, an organisation which is a trustee for more than 100 voluntary secondary schools in the country, which do very great work and respect diversity in how they operate and admit. This competes with legitimate individual aspirations. In every workplace, and not just in educational or health facilities, there may be tension between peoples' legitimate desire to express themselves fully and be themselves fully, and the right of the organisation employing them to promote ideas which are central to its sense of what is good and true and fundamental in life.

What is good about the Bill is it requires objective standards for decisions to be made. It is clear from what the Minister of State said that he would like to go in a very different direction to what the Bill actually does. He takes credit for what he sees the Bill as achieving. I support what the Bill achieves. What it achieves is an insistence that any action taken be objectively justified by a legitimate aim and that the means of achieving the aim would always be appropriate and necessary. This is the nub of it. No reasonable person could ever argue with the establishment of a standard like this.

I have noticed in debates of this kind an easy recourse to a false dichotomy. We are presented with the alternative of a world where the State decides what values we must all have and what values may be legitimately communicated, the communication of which being a requirement for State funding-----

Photo of David NorrisDavid Norris (Independent)
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Or the church decides.

Photo of Rónán MullenRónán Mullen (Independent)
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-----and some other kind of world seen as less enlightened where there is a diversity of visions entitled to provide education according to their values and the values of the people supporting them. Every time I hear the Eileen Flynn case mentioned in the Irish discourse I know people are no longer interested in cogent analysis but in propagandising.

Photo of David NorrisDavid Norris (Independent)
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That is rubbish. It depends on the context in which one mentions a case.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Senator Mullen without interruption.

Photo of David NorrisDavid Norris (Independent)
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It is an absurd argument and he should be challenged on it. Rubbish.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Senator Mullen without interruption.

Photo of David NorrisDavid Norris (Independent)
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Just mention Eileen Flynn and one is prejudiced. Utter tripe.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Senator Mullen without interruption.

Photo of David NorrisDavid Norris (Independent)
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If he says that kind of thing again he will be interrupted.

Photo of Rónán MullenRónán Mullen (Independent)
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Very few people in the country remember the details of the case and it would not serve fairness to anybody to revisit the details of the case or try to extrapolate-----

Photo of Paddy BurkePaddy Burke (Fine Gael)
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On the amendment, Senator.

Photo of Rónán MullenRónán Mullen (Independent)
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-----from that case material relevant to the issues covered in the Bill. Leaving aside the prejudice and, I would argue, the unthinking approach adopted by those seeking to invoke the Eileen Flynn case in a way to close down debate rather than to open it up-----

Photo of David NorrisDavid Norris (Independent)
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You are the one who is closing down debate by trying to prevent people mentioning a very relevant case.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Senator Mullen is perfectly entitled to make his contribution.

Photo of David NorrisDavid Norris (Independent)
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He is being very provocative and I will rise to the challenge.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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We are on Committee Stage and Senator Norris is allowed to come in again.

Photo of Rónán MullenRónán Mullen (Independent)
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I listened to the Minister of State's most recent intervention, and the contributions of other Senators, including Senator Conway. I have great respect for everybody here but his contributions are normally more to my taste. I felt very grateful for the provisions of the Constitution. Without the protections of the Constitution we would be in a very dangerous place.

The Minister of State extolled the education system in Finland. He mentioned in passing that the schools are like palaces, and I certainly agree with him that resources are often a critical issue in securing the equality with which we all would and should agree, but the Minister of State would like a world, and I know from what Senator Conway stated he would also like a world, where the only issues that could be taught in school and the only agenda for schools would be one sanctioned by the State, and frankly that would be a very intolerant world. It would be a vision of education-----

Photo of David NorrisDavid Norris (Independent)
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They are the only provisions allowed. They are all sanctioned by the State.

Photo of Rónán MullenRónán Mullen (Independent)
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-----that would be reduced to the hard will of the currently powerful majority. A school that would try to communicate the idea that respect for life at all stages from conception to natural death is fundamental to our civilisation would suffer under the rule of the Minister of State, Deputy Ó Ríordáin. A school that would argue-----

Photo of Martin ConwayMartin Conway (Fine Gael)
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On a point of information for my good friend and colleague-----

Photo of Paddy BurkePaddy Burke (Fine Gael)
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The Senator can make another contribution.

Photo of Martin ConwayMartin Conway (Fine Gael)
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-----I have always advocated that the education of religion is something to which people should be able to opt in or out.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Senator Conway resume your seat. Senator Mullen without interruption.

Photo of David NorrisDavid Norris (Independent)
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I thank Senator Conway.

Photo of Rónán MullenRónán Mullen (Independent)
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A school that would try to teach that the difference between men and women is fundamental and marriage between men and women has a particular value would certainly suffer under the rule of the Minister of State, Deputy Ó Ríordáin, because it appears it would be in the power of the State to determine what children must learn. This is not education, it is propaganda, and it is the antithesis of the type of pluralism that should be at the heart of what education is about.

Education in the origin of the word means to draw out of children, so respect for the child is and ought to be the most fundamental thing. The ideological misuse of equality to insist on a certain menu of ideas for children is far from respecting children. It should not be necessary for me to remind the Minister of State that the reason the churches have been so involved in the provision of education is because, as Senator Conway generously acknowledged, they were ready and willing to provide education when nobody else was and when the State was not in a position to do so. To go from there to saying that now the State is in a position to provide all of the infrastructure and finance that religious institutions should be banished from education is simple intolerance.

I agree with anybody who says it is farcical that 90% of schools should be under the patronage of one organisation. I would like to see an Ireland with generous resources for education. Starting from the principle that the parents, and not the Minister with responsibility for education, is the primary educator of children there should be generous resourcing for education according to the values of families and what they seek for their children. Senator Bacik acknowledged earlier in the debate, and I listened to her say it, that many people who may not be practising believers still seek to perpetuate the system as it is. She suggested this is because they do not want to put at risk their opportunities to have their children educated, but this is ungenerous. I do not mean this in a morally critical sense but it does not do sufficient justice to the range of motivations. Many people who may be agnostic or atheist recognise there is a value system, particularly in the western world according to the Judeo-Christian system, which they want their children to have, whether it is men respecting women, care for the poor or care for the environment-----

Photo of David NorrisDavid Norris (Independent)
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There is not much of that in the Judeo-Christian ethic.

Photo of Rónán MullenRónán Mullen (Independent)
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There is a particular inheritance there that many people value, even if they are not believers themselves or if they are not sure where they are on the plane of faith. It is wrong to suggest there is some kind of mass hypocrisy going on. What is going on is that parents must in some way exercise their right to seek an education for their children and they must not be required simply to obey and only pick from the State's chosen menu. There are balances which must be struck. None of us would support education which would promote the subjugation of women or which would endorse violence. These are real issues in the western world when we think of militant Islam.To pretend that the State is some kind of a protector of civilised values at a time when children's right to life is not guaranteed in the western world and there is massive intolerance, when even Ministers struggle in their use of social media to maintain a level of civility that would be appropriate to democratic debate and to suggest the State should decide everything is a very dangerous thing to do.

Photo of Ivana BacikIvana Bacik (Independent)
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I do not think any Member has suggested during this debate that the State would decide everything. I think we have moved quite significantly away from the Committee Stage debate on the amendments.

Photo of Rónán MullenRónán Mullen (Independent)
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I am saying this is clearly what flows and what has flowed from the contributions. In the contributions I have listened to I did not hear the nuance one would need to recognise that different people have different value systems and they ought to be entitled to be educated according to those value systems. I did not hear the Minister of State or any other contributor, with the exception of Senator Mooney, say that, although I will admit that I did not hear every contribution, although I heard many of them.

I support this Bill. I do not thank the Minister of State for it, but I thank the Constitution and the good sense of our courts. The Minister of State has been constrained to respect difference on this occasion by the provisions of the Irish Constitution but I hope-----

Photo of Paddy BurkePaddy Burke (Fine Gael)
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On the amendments, Senator.

Photo of Rónán MullenRónán Mullen (Independent)
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Let me make one last point. The separation of children, as the Minister of State described, is not to treat children with any lack of respect or inequality per se. There may be cases, and Northern Ireland comes to mind, where the denominational distinctions in schools could be argued to have contributed to the problem, on which subject one would have a very lively debate, but there can be social circumstances in which one could argue that one needs to bring children from different backgrounds together. I think we all understand that in the context of provision for people of different racial backgrounds and so on. Schools under religious patronage in Ireland have a very good record of promoting that kind of diversity and of respecting it. I have visited these schools and I have been in them but it should not be assumed or implied that it is wrong to have any kind of distinctions in schools according to denominational background or allow preference to be given to people from a particular background in certain circumstances. There is always a balance to be struck. We should be generous in our assumption and assume that if one is dealing with a Protestant school, that is a Protestant school following a Christian ethos, to take the example of Christianity,that teaches and insists on respect for the other, which is core to Christianity. We should not assume that separation is bad automatically. It is how it is done and sometimes it should not be done because of compelling social or political circumstances that might point to the need for greater levels of integration. We should give more credit to the good intentions of educators and to the quality of their work and acknowledge more forcefully and more audibly that people who teach according to a denominational school or Gaelscoil tradition, which operate through a particular appreciation of the Irish language, are also capable of inculcating the exact same level of respect for other people as, for example, an Educate Together or a vocational school.

Photo of David NorrisDavid Norris (Independent)
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An atheist there.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Senator Norris can pray for me when he prays for Senator Bacik

Photo of David NorrisDavid Norris (Independent)
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I will pray for Senator Mullen.

Photo of Martin ConwayMartin Conway (Fine Gael)
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I have a high regard for the contributions of my good friend and colleague, Senator Mullen, which are always well thought out and thought provoking. I agree with the principle that the State should be the leading and main provider and manager of education, but I would not subscribe to the idea that religion should not be taught in schools. I think there is a very significant difference between the Catholic or Protestant churches running a school and teaching religion within it and the State running and managing a school and a religious ethos being taught through religion, be it Catholic, Protestant or of any other religion. That is the structure I would like to see. It is fair to point out that there is a cavalier attitude to the contribution the Catholic Church has made to education in Ireland. As I said earlier, and I thank Members for acknowledging it, and as I am going to repeat-----

Photo of David NorrisDavid Norris (Independent)
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I have repeatedly mentioned and commented on the importance of the Roman Catholic Church historically.

Photo of Martin ConwayMartin Conway (Fine Gael)
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-----were it not for the Catholic Church, hundreds of thousands of people would not have got an education. It is easy to be cavalier in dismissing the role of the Catholic Church and, in a modern society that espouses equality, saying it should be the role of the State. I take Senator Bacik's point on board but we must remember the State is run by those who have a mandate from the people. That mandate has to be respected.

Photo of Averil PowerAveril Power (Independent)
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I respectfully remind Members that we had agreed to discuss amendments Nos. 1 and 3, on the distinction made in the legislation between public and private institutions. I am eager to hear the Minister of State's response on that and if he will accept-----

Photo of Martin ConwayMartin Conway (Fine Gael)
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It is a very good debate.

Photo of Averil PowerAveril Power (Independent)
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It is an interesting debate and I will be more than happy to give my two cent worth on another occasion, but we have been here for an hour and three quarters and we are still on the first amendment. We have several other amendments and a number of very serious issues to discuss. With respect to the people in the Gallery, who have come from GLEN, the INTO group and others who are here today-----

Photo of Paddy BurkePaddy Burke (Fine Gael)
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What is the Senator's point?

Photo of Averil PowerAveril Power (Independent)
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It would be useful for us to have a discussion on the individual amendments and to focus our attention on trying to improve the legislation before us as much as possible. Perhaps on another day we could have statements on the broader issues.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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I have to let each Member speak once on the amendments. Senator Power is the only Member who has come in a second time on this group of amendments.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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I was unnerved for about 30 seconds when I found myself in agreement with Senator Mullen but then I was gratefully relieved by the rest of his contribution.

Photo of Rónán MullenRónán Mullen (Independent)
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We will go to mediation some time.

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

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

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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Okay. Members can predict what I will say on amendment No. 2.

Photo of Averil PowerAveril Power (Independent)
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In his response the Minister of State referred to the Irish Constitution and competing constitutional rights between equality, the individual's right to earn a livelihood, to privacy and other personal rights an individual has as an employee or potential employee, and the right to freedom of religion under Article 44. EU law supersedes our Constitution. That includes the directive I referred to in explaining amendments Nos. 1 and 3. It did include an exemption to provide that member states could continue with previous practices, provided they were in line with EU law and that, in any case, whether the institution is private or public, any discrimination would have to be related to a genuine occupational requirement. The EU directive makes no distinction between public and private organisations. It focuses instead on the role the person performs in the workplace or is applying for. That is more appropriate and it is what EU law requires of us. That is not only my point of view or that of my legal advisers, it was a point made by the Irish Human Rights and Equality Commission, IHREC, in its report on this legislation.

When I introduced this Bill in 2012 the then Minister for Justice and Equality, Deputy Shatter, decided that instead of accepting the Bill he would request IHREC to carry out work on section 37, with a view to informing future Government legislation and to consider each of these issues. IHREC did that and made clear in its report that making a distinction between public and private institutions is not justified. It highlighted EU law in that respect.

I do not accept that the justification in the legislation is fair, and more important, I believe it is repugnant to EU legislation. I urge the Minister of State to reconsider it and to accept these amendments. I accept that in particular posts, be they in private institutions or public ones, there are legitimate reasons for religious organisations to insist that somebody holding a particular position share their religious faith. That is fair enough in particular posts but that is the same, regardless of whether the institution is public or private. To make a blanket distinction between organisations and to give some organisations a licence to discriminate and opt out of the tougher test put in place for public bodies because they do not receive public funding, is unjustified.

Photo of David NorrisDavid Norris (Independent)
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Has anyone noticed there is no sign of any Fianna Fáil Senator here?

Photo of Averil PowerAveril Power (Independent)
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That is because I am over here.

Photo of David NorrisDavid Norris (Independent)
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The Republican party, hah! Senator Power is not in Fianna Fáil.

Photo of Averil PowerAveril Power (Independent)
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There is nobody left over there to argue this issue.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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Senator Norris is holding the space over there.

The suggestion that Ireland did not transpose the employment directive properly in section 37(1) has been addressed by the Attorney General in advice to the Department, quoting the text which is relevant here, Article 4.2:

Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person's religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation's ethos. This difference of treatment shall be implemented taking account of Member States' constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.
I am not seeking to defend the text of section 37(1) but there is no point starting from a false premise. Short of referring to section 37(1) in the text I quoted, the meaning could not be clearer. Article 4.2 was negotiated specifically by the Irish delegation at the time to ensure that the law as set out in section 37(1) would not be altered by the directive and would continue on the basis of a specific protection for its terms.

The Commission, as guardian of the treaties, did subsequently institute infringement proceedings in relation to this specific issue and having considered the response from the Irish authorities closed the file on the matter.

Photo of Averil PowerAveril Power (Independent)
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The Minister of State has made my point in reading out that article from the directive because the latter part makes it very clear that the exemption applies only “where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief constitute a genuine, legitimate and justified occupational requirement”. That is the test in the EU directive and that is the test the Minister of State is failing to put into this legislation in respect of private institutions. He is applying that text in respect of people who work for public bodies but he is opting not to include it for those who work for private institutions. The directive does not permit that. It does not make any such distinction. The paragraph he has read out does not do that and neither does any other part of the directive permit it. It is important to point out that the exemption negotiated at the time provided that member states “may” make distinctions, it did not say “shall”, “should” or “will”. It provided for exemptions for public and private bodies where a test about genuine occupational requirement could be met but it makes no distinction between public and private bodies. That is not my view alone, it is also the view of the IHREC, which is tasked by the Government, and set up by these Houses to make recommendations on legislation such as this, to get appropriate legal advice and to advise Ministers on it. IHREC made clear in its report, requested by the former Minister, Deputy Shatter, prior to this legislation, that there is no legitimate reason to distinguish between public and private bodies.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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We will have to agree to disagree. I do not agree with the Senator. My suggestion would be that an individual, privately funded church or congregation of people who have a particular belief system could legitimately take a case on the basis that it is a private institution, privately funded with a particular belief system and therefore is constrained by what we are trying to do here and could potentially win that case.

Photo of David NorrisDavid Norris (Independent)
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That cedes extraordinary powers to sects and cults. Has anybody thought of that? Some kind of lunatic sect could hire somebody and then fire that person out on his or her ear because he or she does not agree God delivered cargo to the humble aboriginals at Shannon Airport in 1927.

Photo of Averil PowerAveril Power (Independent)
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Amendment No. 2 to amendment No. 13 is mine and amendment No. 6 to amendment No. 13 is Senator Zappone’s and they deal with the same issue.

Amendment No. 2 states that in addition to referring to the institution’s ethos we would also insert a new sub-section:

(c) the relevant position of employment primarily involves the propagation of religion, such that the religion or belief of the employee or prospective employee is integral to that position.”.
This is trying to move on from distinguishing between bodies on the basis of how they are funded and instead on the basis of the role an individual is asked to play within the organisation. I accept that there are some roles for which it is fair that an institution insist that somebody share its belief. The situations in which that is allowed should be restricted to roles that involve propagating religion, for example, preaching or faith formation, and hiring or promoting a minister, priest, rabbi or imam. In that case it would be ridiculous not to do so but that is not the case when hiring a gardener, an accountant, a nurse or a care assistant in a nursing home. There is no justification to discriminate against somebody in those roles. The Government text does refer to a genuine occupational requirement and inserts a test for an employer to show that religion is a genuine occupational requirement.However, there is a need for greater clarity in the legislation as to what exactly that means. Personally, I do not think that to teach a particular religion a person should have to be of that particular faith. To accept this proposition is to accept that a person cannot get a job as a primary school teacher in this country unless he or she is Catholic because more than 90% of our schools are of Catholic ethos. This means such a person would be restricted to teaching in the small number of Educate Together or other schools that are not of Catholic ethos.

Photo of David NorrisDavid Norris (Independent)
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They can hire in teachers.

Photo of Averil PowerAveril Power (Independent)
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As it stands, primary school teachers are hired to teach the full curriculum.

Photo of David NorrisDavid Norris (Independent)
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That is wrong.

Photo of Averil PowerAveril Power (Independent)
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That is the situation. For as long as this remains the process by which we hire our teachers and organise our schools it will be impossible for individual schools to find a way of hiring in a teacher to teach one subject.

I know from my discussions with primary teachers-----

Photo of David NorrisDavid Norris (Independent)
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They could hire Senator Mullen. He would do the job for nothing.

Photo of Rónán MullenRónán Mullen (Independent)
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Absolutely.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Senator Power without interruption please.

Photo of Averil PowerAveril Power (Independent)
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I know from my discussions with individual teachers and their representative groups that teachers are happy to teach the curriculum. Some of them would, in an ideal world, like the system to be changed. I have met teachers who told me that while they are atheists they are happy to teach religion and prepare children for their Holy Communion.

Photo of David NorrisDavid Norris (Independent)
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What about the children? This is not about teachers only.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Senator Power without interruption.

Photo of Averil PowerAveril Power (Independent)
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On the last occasion we discussed this issue it was argued that it is okay to refuse a person employment on the basis that he or she does not share the religion of the school. I do not accept that. This remains acceptable in terms of the wording being put forward today by the Government. The programme for Government, to which the Minister of State's party and Fine Gael signed up when they came into office, specifically states that people of non-faith or minority religious backgrounds should not be deferred from training or taking up employment as teachers in this State. The programme for Government commitment did not relate only to LGBT teachers. While I appreciate the moves being made on this aspect, in terms of changing our equality law, the Government appears to have completely abandoned the commitment not to exclude people from employment because of their religion. I think that is regrettable.

The amendment I have put forward provides an opportunity to address that and to address the unusual position in Ireland whereby the vast majority of our primary schools and a significant number of our second level schools are under religious patronage. While patronage arrangements must be respected and teachers should uphold the ethos of their schools, which means all teachers at primary level must teach religion, the fact that a teacher is not personally adherent to the same faith as the school should not prevent him or her getting a job or promotion. If teachers are prepared to fulfil the full functions of the posts their personal faith should not be an issue.

The National Directory for Catechesis in Ireland sharing of the good news published by the Irish Episcopal Conference states that teachers will be employed on the understanding that they will commit themselves actively to supporting the ethos of the school. At the same time, the school will respect the freedom of conscience of teachers in matters of personal religious belief and practice. I do not believe the two are mutually exclusive. I agree with Senator Norris's earlier comments about atheists. In a free society, people should be free to believe, or not, whatever they wish. Everybody should have the same rights and respect in their personal lives and in the workplace. All I am asking is that we would make clear in the Bill that the fact that a person does not personally share an institution's religious ethos is not a bar to employment. I accept that the provision as drafted provides that the religious ground can only be relied on where there is a genuine occupational requirement but the difficulty brought to my attention by teachers in particular is that this concept is arguable. There is disagreement on it in that some of the patron bodies may well argue that being of the same faith as the school is a genuine occupational requirement. Personally, I do not believe it is if the teacher is prepared to respect the ethos of the school and fulfil all of the functions of their role. I am asking that the Minister of State provide clarity in the Bill in this regard. As I said, my objective in each of these amendments is to seek to improve on the Government wording and to try to give people as much clarity as possible. While the Minister of State may feel these issues are implicit in the legislation I think we should make them explicit.

The INTO, ASTI, TUI and other teacher unions need to be able to go back to their members and clarify that the legislation explicitly provides that the fact that they do not hold the same religious belief as a school in which they work or are seeking to work is not a bar to employment or promotion. It is not sufficient to provide that this may or may not be the case or that a court may or may not accept that. People need clarity on this issue.

Photo of David NorrisDavid Norris (Independent)
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I support amendment No. 2 to amendment No. 13, which goes to the point I was making earlier that there are certain limited numbers of positions where a commitment to religion is significant.

With regard to teachers who are atheists but happy to teach religion and prepare children for their Holy Communion, I am not surprised by this. It explains the phenomenon of these children making their first Holy Communion, which does not exist in the Anglican church, dressed up as Cinderella, with fake tan and so on. Of course, this will happen if they are taught by people who do not believe in it. Teaching religion is different to teaching geography or history. We all know that in 1066 something happened and that London is the capital of Britain. There is very little argument about that. One would hardly be able to teach geography if one thought Dublin was the capital of Britain.

Most national schools have a number of teachers. Surely, it is possible even in this day and age to find at least one teacher with a sprinkling of religion to teach the religion class. Otherwise, we should abandon it. I am strongly of the view that having atheists teaching children religion is ridiculous, unless they are teaching it in a historical and cultural context. Children will pick that up. I believe that in many of these ceremonies there is less and less spirituality. Families are spending enormous amounts of money on tawdry trappings, which have nothing whatever to do with the religion. It is perfectly obvious to me that the children are not being properly taught religion and that their parents do not know the first thing about religion if that is how they approach the sacraments.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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A thousand thoughts come to mind. On the amendment, teaching in a religious ethos school is not just about the teaching of religion. It should run through every subject taught and throughout the entire day. Technically, a teacher in a Catholic school is supposed to teach history, geography, mathematics etc. through the Catholic ethos. This is not only about the teaching of religion.

In regard to the programme for Government, our determination was to establish a form of patronage and pluralism. The determination then was to examine the entire infrastructure of the school system in Ireland and the reality of there being 4,000 school buildings in a country with a population equal to that of Manchester. It is unsustainable to have that number of school buildings and so on in a country which, as I say, has a relatively small population in comparison with other countries in the European Union. However, some people did not play ball. They wanted to keep things as they are. In this regard, in terms of influence over children and education, this is the last hurrah for people of a certain mindset.

On amendment No. 2 to amendment No. 13, in my mind what it seeks goes too far. We have to accept that under the Constitution religious groups are free to establish their own institutions and can determine that religion or belief of employees is a genuine occupational requirement, even if the teaching of religion is not a direct feature of the particular post. I am unable to accept this particular amendment. This is an issue, and one not only relevant to religious institutions.What about a lobbying group that believes in human rights which has a reasonable expectation that someone working for it shares its belief system? What about someone working for a gay rights group, a women's rights group or a political party? Is it a reasonable expectation that an individual working in such an institution should share its mindset? It is not easy to nail down, which I totally accept. Unfortunately, or fortunately depending on one's point of view, we have to accept that the Constitution is quite clear on this point.

Photo of Averil PowerAveril Power (Independent)
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I do not wish to overly prolong the debate as it is clear the Minister of State is not going to move on this issue. The Constitution contains competing personal rights to protect the individual such as the right to earn a livelihood, the right to equality and others, which have to be balanced against the right to religious freedom. One right does not necessarily trump all others and all of these issues can be argued.

The Minister of State mentioned other countries which have their own form of section 37 and where religious institutions only run a small number of schools. In these countries there is no disproportionate impact on a teacher's right to earn a livelihood because if a teacher does not share the faith system of a particular school, he or she can opt to work somewhere else. There are plenty of public sector jobs where this can be done and only a minority of teachers opt to work in religious schools. Here, it is the opposite. Because of the level of respect afforded to freedom of religion, a teacher's right to earn a livelihood is, in some parts of the country, essentially rendered at nil. There is, thankfully, an increasing number of Educate Together schools, but there are many areas of the country in which all schools are under religious patronage. I do not think the balance is correct, although I accept that the Constitution requires a balancing act.

I understand from where the Minister of State is coming on a personal level but think he has been badly advised. I again ask him to re-examine this issue before the Bill is brought before the Dáil. We have an opportunity to deal with the issue here. The programme for Government did not just give a commitment to seek better diversity in schools, it also gave a very clear commitment that nobody would be prevented from taking up employment because of his or her religious beliefs. That issue is not being dealt with. I appreciate that the Minister of State has been told that it cannot be dealt with but my advice is that it can. I particularly acknowledge the work of Dr. Fergus Ryan who is in the Visitors Gallery. He is an expert in this area and drafted my Bill back in 2012. He has been meticulous in drafting amendments on this issue for the past three years, including the Report Stage amendments. He has put a huge amount of work into researching this issue, from an Irish perspective and the perspective of the relevant EU laws. He advises me that this is possible.

I understand from the Minister of State's reply that he is not going to accept the amendment, a decision which is unfortunate and unnecessary. I will be pushing the amendment to a vote. I ask the Minister of State to review and obtain more advice on the issues involved.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Does the Minister of State have anything further to add?

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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No.

Photo of Averil PowerAveril Power (Independent)
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Amendments Nos. 4 and 11 to amendment No. 13 would essentially require an institution which was seeking to rely on the exemption provided in section 37(1) to publish its ethos in writing. It is only reasonable and fair that those who could potentially be penalised for undermining that ethos be aware of what exactly it is. My objective is to provide clarity on these issues as many of them are open to argument. Different people have different views on what an institution's ethos might or might not be.

I note with interest that the Irish Episcopal Conference document to which I referred, Share the Good News, requires Catholic schools to write down their ethos. The directions given to schools in the document are quite detailed and comprehensive, even requiring schools to run courses on their ethos in order to make staff aware of it. If the Catholic church requires schools to write down their ethos, I do not see why there should be an issue with us requiring such documents to be published. It is in the interests of both the employer and the employee that everybody should know where he or she stands. If employees are being asked to respect a particular ethos, they should know exactly what it involves and where the line is in order that they do not step over it inadvertently. Senator Katherine Zappone's amendment essentially seeks to do the same thing.

Photo of Katherine ZapponeKatherine Zappone (Independent)
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On amendment No. 4 to amendment No. 13, if an institution is to draw on its religious ethos to lawfully discriminate against an employee, it is reasonable to require it to define its ethos in writing and to require that the employee or potential employee be made aware of it. If the Government, by its amendments to the Bill, maintains that it is reasonable to keep section 37(1)(b) in order to protect the constitutional provisions on freedom of religion, why is it not equally reasonable to require religious institutions to define their ethos? An employee should be crystal clear on what it is he or she needs to respect and should not undermine. If we have it included in the Bill, it should be required before anybody has to go to court rather than it being done afterwards, an issue to which the Minister of State referred. I cannot for the life of me think why a religious institution would not want to define its ethos in writing and, with confidence, make employees or potential employees aware of it. What might an ethos contain? Should it contain, for example, that one must love one's neighbour as oneself; that it is right and proper to respect the fundamental dignity of every human being; that the meek shall inherit the earth or blessed are those who hunger and thirst for justice for they will be filled?

Photo of David NorrisDavid Norris (Independent)
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I support the amendments on the practical basis that one cannot violate something that does not exist. If it is not specified, how can one possibly know that one is violating an ethos? It seems perfectly appropriate to require the churches to specify. That is all I am going to say. I would like to think we will have the Bill finished today.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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I welcome Senator David Norris to our side of the House.

Photo of David NorrisDavid Norris (Independent)
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I am the only person on this side.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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I appreciate from where Senator Katherine Zappone is coming. I am reminded of the G. K. Chesterton quote about Christianity, that it would be great if anybody bothered to try it.

Addressing amendments Nos. 4 and 11 to amendment No. 13 together, there is a weight of volumes setting out the belief systems of individual churches and other religious groups. There are theological and practice differences not just between but also within particular denominations. There is a line which we should not cross. The State should not, as a matter of principle, involve itself in seeking to define - even indirectly - what individual denominations do or do not hold central to their ethos. If we want to achieve a genuine separation of church and State - I share this objective with the Senators - we should not start with the State putting a mechanism in place to regulate how religious groups define what they believe in.

Photo of David NorrisDavid Norris (Independent)
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Define it, if we can find it.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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The State should not find itself having to police these definitions in any way. Even if the State were to take that step, I suspect that, in practice, any such statement would be formulated at a sufficiently high level of abstraction to be of no particular use in dealing with the requirements we are setting out in amendment No. 13. I hope the Senators will accept the reason for my reluctance and not press the amendments. It would be great if we could have this done this evening.

Photo of David NorrisDavid Norris (Independent)
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We might require a short addition to the time allocated.

Photo of Averil PowerAveril Power (Independent)
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I am disappointed by the Minister of State's reply. It is just common sense that if one is required to comply with something, one should be entitled to know what it is.As I have stated all along, the test for this legislation is whether it gives people the comfort to be free to be themselves and to know where the line is in the workplace, that is, if they are asked to respect something, they know what it is. People should be given sufficient clarity so that they need not live with fear, uncertainty or worry and they can get on with doing their jobs, which is what anyone wants to do, gay or straight, male or female, married or unmarried. The same applies in respect of faith and the other grounds set out in this legislation.

This is a straightforward amendment. Unfortunately, the Government will not accept it. It is probably the easiest to accept, given the fact that the Catholic church has placed a requirement on its schools to write down its ethos. I do not know why a teacher or potential employee should not be entitled to see that. For the purposes of this debate, I would like us to move on and get through the Bill, but it is important that we do this properly. People have been waiting a long time for this legislation and today is an opportunity to get it right, tighten its provisions and make it as strong as possible.

I have tabled amendments Nos. 5 and 8 to 10, inclusive.

Photo of Katherine ZapponeKatherine Zappone (Independent)
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Amendment No. 5 is mine, actually.

Photo of Averil PowerAveril Power (Independent)
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I am sorry. Senator Zappone and I have similar amendments, Nos. 5 and 10, respectively, on respect for an employee's privacy. I have tabled amendments on marriage and freedom of expression because I am concerned that the wording of the Bill is not sufficiently clear. While I appreciate that a certain conduct is required of employees or prospective employees where public institutions, albeit not private bodies, are concerned, this raises concerns about what type of conduct might be covered. In the US, for example, a teacher who was openly out in a religious school for years without any difficulty was discriminated against for getting married or wearing a wedding ring to school. The INTO's LGBT group has expressed concerns about the same happening in Ireland on the back of our beautiful decision in May to change our Constitution and introduce marriage equality. Teachers are concerned that, if a female teacher, for example, wears a ring into her classroom, is asked whether she got married and replies that she and Clare got married over the weekend or during the summer, this may be considered a form of conduct. Could the conversation, the wearing of the ring or anything related to the marriage arguably be a question of conduct? The Minister of State may believe it is not or that such protection is implicit in the Bill, but I am seeking for him to make it explicit, thereby making it clear that, from now on, no one can be discriminated against simply for being lesbian, gay, bisexual or transgender or for exercising a constitutional right to marry. This is the most basic measure that we are being asked to make, which is why I have tabled an amendment to that effect.

I have tabled a further amendment on-----

Photo of David NorrisDavid Norris (Independent)
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Why does Senator Power not wait until we get to the amendments?

Photo of Averil PowerAveril Power (Independent)
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We are discussing them.

Photo of Ivana BacikIvana Bacik (Independent)
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We are taking them together.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Senator Power, without interruption.

Photo of David NorrisDavid Norris (Independent)
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I am sorry, but I am seeking direction. What amendments are we discussing?

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Amendments Nos. 5 and 10.

Photo of Ivana BacikIvana Bacik (Independent)
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Senator Power is discussing related ones as well.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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These are amendments to amendment No. 13.

Photo of David NorrisDavid Norris (Independent)
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I am sorry. That was helpful clarification.

Photo of Averil PowerAveril Power (Independent)
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We are discussing amendments Nos. 5 and 8 to 10, inclusive, to amendment No. 13 together for the purpose of accelerating the debate.

Photo of David NorrisDavid Norris (Independent)
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I thank the Senator.

Photo of Averil PowerAveril Power (Independent)
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Amendment No. 9 relates to freedom of expression and is designed to address a concern that I mentioned on Committee Stage last week and that teachers have raised with me, namely, attending a pride parade. Clearly, this is a form of conduct, as the Bill does not restrict questions of conduct to the workplace. Could the mere fact of attending a pride parade or being photographed in local newspapers at a pride parade provide sufficient justification for discrimination? The Minister of State may argue that it is implicit in the legislation that this is not the case, but others would argue differently. It is important that we make it clear that it is not an issue. There should be no question of being penalised for exercising the lawful right to freedom of expression or association.

Dr. Ryan has drafted my amendments in such a way as for each to start with the term, "Without prejudice to the generality", as regards earlier provisions. This term is frequently used in Government legislation and makes it clear that, although we are inserting specific requirements in terms of the issues that I mentioned, these are not the only situations in which discrimination is prohibited under the Bill and are merely examples. The language has been carefully drafted to make that explicit.

My amendment No. 10 is on the employee's privacy. It addresses the concern that, while the Bill refers to conduct, it does not restrict its provisions to conduct in the workplace. Where the line between someone's personal and private lives lies is arguable. I have tabled this amendment to clarify that someone's personal and consensual relationships, be they of a sexual nature or otherwise, with other adults outside the workplace is not the business of the employer. The employee has a constitutional right to privacy and nothing that he or she does in exercising that right within the parameters set out in my amendments should amount to conduct justifying discrimination under the legislation.

Each of these amendments is designed to give people as much clarity as possible. I would have preferred to delete this provision. As Senator Zappone argued, it would be easier to get rid of it than to qualify it in so many ways. Given the fact that it is staying, however, the least we can do is restrict it as much as possible and give people clarity around the typical scenarios that have been raised by the INTO's LGBT group, the ASTI and others where teachers are seeking to know whether particular forms of conduct are covered and that they have nothing to worry about. No one wants to wait for this question to be determined by a court. The point of introducing this legislation is to remove section 37(1). It has never been relied on and an employer has never won a case based upon it. Whether something justifies discrimination has always been arguable, but the mere uncertainty and fear about whether people are covered in that regard has kept them living lives of anxiety and self-censorship. Let us give people as much certainty as we can. The Minister of State should accept these amendments so that it is clear that merely being out, married or in a relationship or exercising one's freedom of expression by getting involved in a pride parade or being photographed in the Áras with one's colleagues from the INTO's LGBT group does not constitute grounds for discrimination.

Photo of Katherine ZapponeKatherine Zappone (Independent)
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In the interests of time, I will discuss amendment No. 5 briefly. This seeks to add a more air-tight character to the Government's tests or criteria whereby religious institutions can justify discriminatory treatment against employees on the basis of their ethos. The amendment is rooted in my efforts on Committee Stage to amend the Bill.

I acknowledged that it is the intent of the Government and Senator Bacik to ensure that the employee's right to privacy is adequately protected and that his or her private life is effectively off limits to an objective justification by a religious institution for its discriminatory treatment. Amendment No. 5 would insert a simple and straightforward line in the Government's amendment to the effect that the employer must have due regard to the employee's or prospective employee's right to privacy. With this brief amendment, the Bill would be strengthened considerably so that the Government's efforts to protect freedom of religion could not extend beyond religious grounds into an employee's private life. A religious institution would have too high a bar to meet if it wished to discriminate against, for example, a lesbian or heterosexual woman who was pregnant through assisted human reproduction, a lesbian or gay man who wore a wedding ring, as Senator Power mentioned, or an unmarried mother who was living with her children.If this line were added, a religious institution would have too high a bar to meet if it wished to discriminate against a lesbian or heterosexual woman who is pregnant through assisted human reproduction or a lesbian or gay man who wears a wedding ring or an unmarried mother who is living with her children. To include a requirement to have due regard to the right to privacy in the Bill would be very straightforward as our courts recognise that the personal rights in the Constitution imply that right. It would go a significant distance to ensure that one's identity or the conduct that naturally flows from it would not jeopardise one's employment.

Photo of Ivana BacikIvana Bacik (Independent)
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I support the making of amendment No. 5 having had a small hand in it with Senator Zappone. It would be useful to include a specific reference to the employee's or prospective employee's right to privacy to strengthen the already strong test and high bar that I have already referred to as the "one plus five" test. A specific reference to privacy in subsection (1C)(c) would be helpful and cover some of the issues that have been so eloquently described by other colleagues. There is already a good deal of complexity in the amendments proposed by the Government. That complexity is necessary, unfortunately, to the scheme of employment equality legislation. As such and while we must be careful not to insert unduly complex extra amendments, a simple reference to privacy would be useful. I hope the amendment can be accepted.

Photo of David NorrisDavid Norris (Independent)
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I subscribe to all the amendments, in particular to the one on privacy, except amendment No. 10. The reason is that it is vaguely drafted. For example, paragraph (b) states:



For the purpose of this subsection, a person's right to privacy includes, but is not limited to, the person’s right to engage in sexual acts with other adults, as permitted by law, and to form and engage in intimate relationships with other adults, as permitted by law.”.
There is nothing to prevent people having umpteen sexual contacts or an orgy with five or six people. Perhaps that is a very modest orgy; let us say 25 people a-frolicking on the dining room floor. I do not approve of that.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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I demand clarification on that.

Photo of David NorrisDavid Norris (Independent)
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I do not think a national school would hire Domininque Strauss-Kahn to teach ethics to children. It would not be appropriate. It would be perfectly appropriate to discriminate against Mr. Strauss-Kahn whether or not he was involved in aggravated pimping. As such, I do not agree with the amendment which is too loosely worded.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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I had to resist the temptation to speculate on the number of individuals that constitute an orgy.

Photo of David NorrisDavid Norris (Independent)
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I have never been to one so I do not know.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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Possibly we should put down an amendment to clarify the matter. Amendments Nos. 5, 7, 8 and 10 take different forms and address the matter in different ways, but they have in common a focus on the employee's right to privacy. My Department has consulted with the Office of the Attorney General and I am happy in light of the consultation to accept the spirit of the amendments. Comparisons are invidious so I ask Members to forgive me, but in so far as a choice must be made, the style of amendment No. 5 conforms to the crisp and precise style in which the legislation is drafted. It captures the objective of the group of amendments without repeating the detail which I am advised is unnecessary. With the agreement of the House, I propose to accept amendment No. 5. On that basis, the other amendments might not be pressed.

I understand I should move a verbal amendment at this stage as the insertion of a new subparagraph (iii) in subsection (1C)(c), which is proposed to be inserted by paragraph (b) of amendment No. 13, will require that the existing subparagraph (iii) is updated to subparagraph (iv). It is a consequential technical amendment arising from the acceptance of amendments Nos. 5 to No. 13. Perhaps the House can confirm its agreement to this change in the version of the Bill as proposed by the Seanad to be published after today's debate.

Therefore I propose that in paragraph (c) of subsection (1C) proposed to be inserted by paragraph (b) of amendment No. 13, the existing subparagraph (iii) is renumbered as subparagraph (iv).

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

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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Amendment No. 9 is a difficult one. Elements of what it seeks to achieve are contained within the text on privacy which we discussed earlier. I signalled acceptance of the amendment from Senator Zappone which is in concert with the broad principle of what Senator Averil Power is also seeking to achieve. Other elements cross the line into territory where the Supreme Court is likely to decide that the text should be struck down. As such, we have to be very careful. No employee is free to act against the interests of or campaign against the values or ethos of the employer. That is a fact that goes beyond considerations of whether the employer is a religious institution. For example, civil servants above a certain grade are not free to participate in politics or campaign on issues of political controversy. A similar situation exists for An Garda Síochána. I would like to be able to give definite advice on where the boundary might lie in respect of a range of possible circumstances but it is not possible to do that. The right to privacy encompasses freedom of expression, assembly and association to an extent but not to the extent that the exercise of these freedoms includes campaigning against and, in particular, visibly campaigning against one's employer or the employer's values and beliefs. While I appreciate the motivation behind the amendment, I am, unfortunately, unable to accept it.

Photo of Averil PowerAveril Power (Independent)
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I welcome the fact that the Minister is accepting amendment No. 5 which is largely in the spirit of where I was coming from on amendment No. 10 in respect of privacy. However, I am still a little concerned in respect of freedom of expression and what the Minister of State has said about conduct outside the workplace that might be contrary to an employer's ethos. Does that cover someone attending a pride parade or who was openly pictured at the march for marriage prior to the referendum or who canvassed for marriage equality with the Yes Equality campaign? Clearly, it was campaigning on an issue that was against the public teaching of some of our religious bodies, including the Catholic Church. The Minister of State seems to be saying we do not know or are not sure. That is the reason there is still some anxiety among teachers about whether the legislation is going far enough. I welcome the inclusion of the amendment on privacy but I ask the Minister of State to clarify if that expressly includes the issue of marriage and wearing a wedding ring into the school. Privacy outside the workplace is another issue but does it cover somebody publicly speaking about their marriage in a school context and publicly wearing symbols of same-sex marriage in a school when that is against the teaching of the church running the institution? The Minister of State might say that, implicitly, he believes it is, but others would argue that it is not. That is why I was seeking to make those protections explicit. There is a particular argument for doing that in light of the fact that marriage equality is a constitutional right or will be when the vexatious litigation before the courts is concluded. It will be a constitutional right on a par with the constitutional right of freedom of religion. For that reason, it should enjoy a special status and we should be able to give people clarity that no act related to getting married could leave a person in a difficult position with his or her employer. Does the Minister of State believe somebody being open about his or her marriage to a same-sex partner in a school or who attends a pride parade is covered by the legislation?

Photo of Katherine ZapponeKatherine Zappone (Independent)
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I am grateful to the Minister of State for accepting amendment No. 5, which I moved. It represents also the spirit of amendments put forward by Senator Power. I acknowledge the support of Senator Bacik also. Her views on any legal issues are much respected. I also acknowledge the support of the Minister of State's officials. The Minister of State's "no mean achievement" just got better. It is my understanding that the inclusion of a right to respect for privacy of the employee offers a guarantee on some of the matters on which Senator Power is asking the Minister of State to speak.

Photo of Ivana BacikIvana Bacik (Independent)
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I welcome very much the acceptance by the Minister of amendment No. 5, which is a very straightforward amendment which seeks to capture the spirit of all of our concerns. We must put to rest the concern that somebody's marital status might be a ground of discrimination following this. Even without the amendment on privacy, it is clear from the wording of subsection (1C) that the action of the employer cannot be a response to an employee's civil or family status.We need to allay people's concerns about it. The test is set so high that an employer's actions cannot be a response to a person's marital status, same-sex or otherwise, or his or her status as an unmarried person or any other family status.

Photo of David NorrisDavid Norris (Independent)
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Wearing a wedding ring is a matter of no great consequence. Many people who are not married wear wedding rings and sometimes, in particular circumstances, people remove them. It would be inappropriate for a teacher to give a seminar on his or her marriage, whether same-sex or opposite-sex. I do not remember anything like that from any of the schools I went to, ghastly as some of them were. Nobody ever asked a teacher whether he or she was married or asked to hear all about his or her married life. Go away out of that. I do not know what kind of brats we are rearing now.

Photo of Averil PowerAveril Power (Independent)
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I thank Senator Norris. People want to be able to answer the type of casual question that is posed in the staffroom or the classroom that the rest of us take for granted.

Photo of David NorrisDavid Norris (Independent)
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"I am married, yes. Shut up. Geography."

Photo of Averil PowerAveril Power (Independent)
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The point of the legislation is that when teachers go in on a Monday morning and have the normal banter about how their weekend was, what they did, who they were with, lesbian and gay teachers feel they cannot answer those questions because they cannot be honest about who they are. They feel, when talking about their partners, they have to use non-gendered pronouns, for example a female does not say “she”. A woman might have to put up with intolerable situations such as a well-meaning colleague trying to set them up with their son, a physical education teacher or the guy across the street because she has not been free to say she is a lesbian. We are trying to deal with it. People do not want their private lives to be a matter of formal discussion, debate or instruction in the school. They just want to be free to be themselves in the same way as everybody else.

I accept what Senator Bacik is saying in that the mere act of being married can no longer provide justification for discrimination. I accept it is one of the listed grounds. My concern is about the conduct test. The Bill provides that discrimination can be exercised on grounds of religion if the employee's conduct is such that it challenges or undermines the institution. The Irish National Teachers Organisation LGBT group has raised with me the need for clarity. Wearing a ring, speaking about it freely and having a conversation is conduct. Honestly answering a question from a child about why one is wearing a ring and one's partner or spouse is conduct. Whether it is conduct justifying discrimination is the question they are asking. If the Minister of State tells me his legal advice is that it is not, it would provide me with reassurance. My concern in bringing forward the amendment and my advice from Dr. Fergus Ryan, who drafted it for me, is that it would be preferable to make it explicit and that, particularly if the Minister believes the issue is already implicit in the legislation, there is no reason not to make it explicit. Could the Minister of State please give me a reason not to make it explicit and very clear? I do not believe conduct related to conversations about marriage is explicitly provided for, although it is implicitly provided for. I would be more reassured if we were clearer on it.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I support what is being said, although in approximately 20 years in the staffroom, nobody ever asked me if I was married. Maybe they thought I was not worth hitting on at the time.

Photo of David NorrisDavid Norris (Independent)
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Maybe they thought you were a fairy.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I worked with a colleague who was in a same-sex relationship and she frequently spoke in the staffroom about the weekend they had and what they did and did not do. Sometimes, we can be afraid of things that are not there. However, I take the point that is being made, and maybe we need to make sure. Teachers do not care one way or another, and students could not care less.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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I disagree with the Senator. We are not afraid of something that is not there but are legislating for something that very much is there. We must be very mindful of it. While many school staffrooms are very inclusive places where people can be who they want, not every schoolteacher or medical professional feels the same, and we must ensure the chilling effect, as it has been described, ends. Senator Norris reminded me of a situation in which I was machine gunned with questions about my private life by students in my class who assumed I was gay because I was teaching in a girls' school. Then I got engaged and they saw a photograph of her.

Photo of David NorrisDavid Norris (Independent)
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Does she know?

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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They said: "God, Sir, your girlfriend is massive." In Sheriff Street, the word "massive" is a compliment. It is very different from Monaghan, where telling somebody their wife or girlfriend is massive it has a different connotation. I had to spend a little time explaining that one. I digress.

To speak bluntly to Senator Power's reservations, one cannot be seen to have been undermining anything if one answers a question factually. "Are you married?" "Yes, I am." That is not undermining anything, only stating a fact. It is not proselytising, undermining or campaigning. If somebody asks me, as a teacher, if I am running for election, the answer is yes. If somebody asks if I am running for the Labour Party, the answer is yes. If somebody asks if his or her mother should vote for the Labour Party, that is where the line is.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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No, she should not.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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It is a well-established line. One person's interpretation of what a ring means is different from somebody else's. As Senator Bacik has clearly said, one's family status or civil status cannot be taken into consideration in these matters as undermining anything.

Photo of Ivana BacikIvana Bacik (Independent)
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That is explicit.

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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It is explicit. There are nuances in schools and wearing a T-shirt with a particular political slogan on it would be considered inappropriate. There are many professions, such as the Garda Síochána and the Civil Service, in which expressions of political preference or ideology would not be appropriate. There is a line. If one answers a factual question and gives information that can be substantiated, it is not undermining anything. It is a statement of fact. “Are you married?” “Yes, I am.”

Photo of Averil PowerAveril Power (Independent)
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What if a person asks a teacher what her husband's name is and she says it is her wife?

Photo of Aodhán Ó RíordáinAodhán Ó Ríordáin (Dublin North Central, Labour)
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That is a statement of fact and it is explicit in the legislation that a person is not undermining anything by being who he or she is and having a marriage into which he or she has entered.

Amendment put:

The Committee divided: Tá, 5; Níl, 15.



Tellers: Tá, Senators David Norris and Averil Power; Níl, Senators Aideen Hayden and Michael Mullins.

Amendment declared lost.

Photo of David NorrisDavid Norris (Independent)
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A Chathaoirligh, it is utterly disgraceful that the Fianna Fáil Party has had no representative here at all today.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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That is not relevant. We must proceed to the next amendment.

Photo of David NorrisDavid Norris (Independent)
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It adequately justifies the actions of Senator Averil Power.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Senator Norris is completely out of order and wasting time. I call the Leader to move an amendment to the Order of Business.