Senators: I thank Senator Power for giving us an opportunity to discuss how we can progress reform in this important human-rights area. From our three meetings she knows that I am committed – along with my colleague Minister Ruairí Quinn, the Minister for Education and Skills – to strengthening the statutory protection for equality.
My unequivocal conviction is that it is simply wrong to exclude people from employment or other opportunities in life on the grounds of , for example, gender, sexual orientation, gender identity, family status, marital status, religion, age, race, disability, race or ethnicity (including membership of the Traveller community). And more specifically, it is unjust that people whose wages are paid by the taxpayer and who are employed to provide essential public services should feel intimidated or feel a need to live their lives in secret for fear that their sexual orientation or family status, for example, should lead to victimisation by an employer. Or that a single mother should be excluded from employment.
As a society, we have a fundamental duty to ensure that minorities who have historically been subjected to malign discrimination are properly treated. Treating people properly means assuring them full equality without qualifications. Equality law is an important means of positively ensuring that lesbian, gay, bisexual and transgender people can live openly, safely and honestly in society. The bright-line pledge in our Programme for Government is that:
“people of non-faith or minority religious backgrounds and publically identified LGBT people should not be deterred from training or taking up employment as teachers in the State”,
Self-evidently, the State has a compelling human-rights interest in eradicating discrimination based on social prejudice. But the practical challenge for us today is this: How can we as a pluralist constitutional democracy commit to both equality of treatment and tolerance of and respect for religious differences? The advice available to me is that the Bill touches on issues of the profound constitutional sensitivity and importance. So we need to tread very carefully. I am unsure that this Bill as drafted would pass constitutional muster.
The test the Oireachtas faces when it legislates in this area is whether it has preserved a proper balance between the rights of religious denominations to manage their own affairs and maintain institutions for religious and charitable purposes and the rights of other citizens to equality before the law and to earn their livelihood. The courts have enunciated this test. It is important that we consider the relevant constitutional case law.
In their case law, the courts have endorsed the proposition that occasions arise when it is necessary to make distinctions in order to give life and reality to the constitutional guarantee of the free profession and practice of religion. In McGrath and O Ruairc v The Trustees of Maynooth College [1979] ILRM 166, 187, Henchy J affirmed this view. He said that the whole point of proscribing disabilities and discriminations at the hands of the State on the ground of religious profession belief or status is ‘to give vitality, independence and freedom to religion’. He added that:
Far from eschewing the internal disabilities and discriminations which flow from the tenets of a particular religion, the State must on occasion recognise and buttress them. For such disabilities and discrimination do not derive from the State; it cannot be said that it is the State that imposed or made them; they are part of the texture and essence of the particular religion; so the State, in order to comply with the spirit and purpose inherent in this constitutional guarantee, may justifiably lend its weight to what may be thought to be disabilities and discriminations deriving from within a particular religion.
In In re Article 26 and the Employment Equality Bill 1996 [1997] 2 Irish Reports 321, the Supreme Court cited this judicial opinion approvingly. In this Article 26 reference case, the court considered the constitutionality of section 37 of the Employment Equality Bill 1996, which is now section 37 of the Employment Equality Act 1998, which is the principal section the Senator’s Bill seeks to amend.. The court said that:
It would therefore appear that it is constitutionally permissible to make distinctions or discriminations on grounds of religious profession belief or status insofar -- but only insofar -- as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution.
The court acknowledged that section 37(1) and 37(2) form an exception to the general rule against discrimination on the religious ground. The court upheld the constitutionality of s 37(1). This provision entitles an institution to give more favourable treatment, on the religion ground, to an employee or a prospective employee ‘where it is reasonable to do so in order to maintain the religious ethos of the institution’ or to take action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution’. The court said that the use of the words ‘reasonable’ and ‘reasonably necessary’ implies that the test is to be an objective one and that the matter is to be resolved on a case to case basis. The court also upheld the constitutionality of section 37(2), which entitles an institution to prefer a particular candidate on the grounds of his or her religion if in fact being of that religion is an occupational qualification for the post in question.
Thus, the court took the view that the Oireachtas had achieved a correct balancing between the right of free profession and practice of religion on one hand and the right to equality before the law and the right to earn one's livelihood on the other.
It is important to say that the Constitution does not say that religious rights must always trump equality rights. Freedom to practise religion is subject to the requirements of public order and morality. However, we may reasonably infer from the Irish constitutional case law that action by the State that burdens a religious practice must be justified by a compelling public interest. The burden must be reasonable, proportionate and not arbitrary.
The competing rights in this area include freedom of religion, freedom of assembly, right to privacy and to earn a living, freedom of expression and conscience and the right to freedom from harassment and discrimination. The constitutional obligation on the State to vindicate the personal rights of citizens is also important.
Thinking aloud - out of respect for the dialogue the Senator has initiated - I would invite the House to consider that, in drafting legislation to amend section 37, we might draw some important distinctions. We might distinguish, first, between behaviour that might be purposefully intended to undermine the religious ethos of an institution, on the one hand, and on the other hand possession by a person of an inherent characteristic or ground on which discrimination is prohibited (e.g. gender, sexual orientation). Second, we might also distinguish between an autonomous religious institution and public services that are delivered in a partnership between state and religious controlled institutions, particularly where the religious institution is the de jure employer, but the state pays the salary. Making these distinctions might enable us to strike a constitutionally appropriate balance between freedom of religion and the right to equality in the context of publicly-funded educational and medical services.
We should assess the feasibility of an approach to amending legislation on the following lines. Section 37(1) could remain unchanged in respect of wholly autonomous religious institutions. But for educational and medical institutions, we might provide that
o First, that more favourable treatment on the religion ground (37(1)(a) ) for the purposes of this section cannot be based on a person's characteristics under one of the other grounds;
o Second, reasonable action to prevent an employee or prospective employee from undermining the religious ethos of the institution (section 37(1)(b)) may only be taken where an employee actively undermines or seeks to undermine, or where there is a reasonable belief based on demonstrable evidence that a prospective employee would so undermine or seek to undermine, the religious ethos of the institution concerned; and
o the section would be without prejudice to a person's constitutional right to privacy or freedom of expression;
The crucial thing would be to ensure that the power of the institutions to differentiate between employees or prospective employees should only apply where there is a real danger for the institution based on evidence. This might include:
· if the person acts with the conscious purpose of directly undermining the employer’s core religious beliefs or dogma , or
· if it is a genuine and demonstrably necessary occupational requirement of the employer that the employee act in a way consistent with the employer’s religious beliefs.
The provision might specify the specific considerations that must be weighed in arriving at this determination, including, for example, whether the employer’s action is rationally and strictly related to the
employer’s core beliefs or dogma. One might also balance
· the consequences for the person, in particular in relation to his or her rights to dignity, equality, self-determination, self-expression, social life, and privacy; and
· the consequences for the employer should the distinction be allowed or not.
These are my current and preliminary ideas on how reform might be approached. I consider that a more extensive consultative process and formal assessment of the options that might be before us should be undertaken. Last October, I announced plans to merge the Human Rights Commission and the Equality Authority to create a new an enhanced Irish Human Rights and Equality Commission for the State. One of its functions will be to advise Ministers and the Government on new legislation. I expect to be able to publish my proposals for legislation to establish the new Commission very shortly. And I expect that the Commission itself will be in place within a few months. I think it would be useful to ask the new Commission to consider the issues that arise in this area and how reform might be best approached in a way that does justice to the cross-cutting constitutional rights involved.
Given the complexity of the issues involved and that at the heart of the issue are competing constitutional rights and questions about the constitutional obligation of the State to protect the personal rights of all citizens, I do think it is worth taking the time to ask the Commission and to report to the two Ministers centrally concerned – Minister Quinn and I - and to the House with its views and recommendations.
Once the Commission has reported, I commit to bringing forward early in the New Year Government proposals in this area. As I said at the start of my contribution to today’s debate, I accept the spirit of the Bill. I am proposing that the Senator would agree to defer further consideration of its until the New Year, when I will return with amendments designed to ensure that we enact something that is workable and will survive constitutional scrutiny.