merrion street

Listening to the debate yesterday and tonight, it is crystal clear that the

sponsors of this Bill have produced something that is seriously flawed and

ineffective. The additional administrative costs which the Bill seeks to

impose on public bodies would be very considerable. We have had no

assessment of the benefits that would accrue from such a heavy investment

in administrative staff time and no reflection on whether there are viable

alternatives of pursuing the same goal.

Very briefly, I want to recount the four main serious defects in this Bill.

Firstly, the Bill proposes to extend the discrimination grounds in the

Equal Status Acts (which deal with provision of goods and services), but

not in the Employment Equality Acts (which cover employment) to five or six

new grounds: Trade Union membership, socio-economic background, native

Irish language speaker, criminal conviction, including qualifying prisoner,

and living in a rural area.

The existing equality legislation prohibits discrimination on nine grounds.

But the Employment Equality Acts and the Equal Status Acts also contain a

range of qualifications and exceptions to ensure that we avoid unintended

and extreme consequences. Thus discrimination based on age is outlawed,

but we ensure that children are protected and special treatment can be

provided for older people where this is appropriate. Gender may not be

used to discriminate in employment, except in employment providing

intimate, caring services for example.

Much of the contributions from the opposition benches last night cover

employment issues. But the Bill as published does not apply to employment

issues. We were told last night that this is a drafting error than can be

easily fixed. However, this it is not the type of drafting error that can

easily be corrected.

This is because there are no exceptions or qualifications proposed in this

Bill in respect of the proposed five new grounds. This is a serious

omission. It becomes even more serious if we include employment in our

consideration. As my colleague Minister Lynch said last night, equality

legislation seeks to eliminate unfair or prejudicial discrimination based

on a person’s inherent characteristics (gender, race, age, for example)

rather than affecting rational assessments of risk based on a person’s

previous actions. If we look at the inclusion of criminal convictions and

qualifying prisoners, we have to conclude that the question of wiping the

record of criminal convictions is not one that can be addressed by a simple

one line prohibition of ‘discrimination’, but requires a more nuanced

approach via spent convictions legislation that allows differentiation as

between different types of criminal convictions, adult versus juvenile

convictions and so on, and different types of employment and other risk

assessment situations. The Criminal Justice (Spent Convictions) Bill is

currently awaiting Report Stage in the Dáil and is expected to be enacted

in the autumn.

In certain employments, as well as in provision of certain goods and

services, a history of conviction for serious criminal offences, such as

sexual offences or fraud or theft can be directly relevant risk factors

which should be taken into account.

The second major defect is that the Bill does not understand the way in

which equality legislation interacts with other legislation and takes the

simplistic approach of assuming that the concept of discrimination can be

used to solve all of our economic and social problems.

Reference was made last night to taxi licences and working in the security

industry. The Bill may be an attempt to compel the relevant authorities to

grant licenses in such cases irrespective of genuine concerns about

suitability, but it cannot achieve that objective. The Equal Status Acts

apply to the provision of goods and services, other than public services

that are regulated by other legislation. The Equal Status Act 2000, in

Section 14, makes it clear that it is without prejudice to the provisions

of other statutory provisions. Essentially, the 2000 Act does not apply to

an issue which is governed by separate legislation.

The overly simplistic approach is best illustrated by the inclusion of

living in a rural area as a proposed discrimination ground. Broadband was

raised in last night’s debate. The Government is committed to ensuring

that we have high-quality broadband services and that rural areas are

served as well as urban areas. This involves working with providers in the

market to encourage and facilitate provision of services so that the

standard and the coverage are as high and as comprehensive as possible.

But does anybody seriously think that the goal can be achieved by a simple

prohibition on ‘discrimination’, or that the increased provision of

broadband services by the commercial companies in the market would be

positively encouraged by an outbreak of litigation before the Equality

Tribunal? We have seen a number of new broadband companies enter the

market in the past decade or so, and innovative use of wireless to serve

dispersed populations. Do we seriously think that we can encourage new

start-ups in this area by banning them from taking account of geography

when seeking to develop a viable business?

The third problem area is the proposal to create an elaborate new proofing

mechanism, by which all public bodies would draft equality schemes for

approval by the Equality Authority. We have been provided with no

assessment whatsoever of the impact and cost of this proposal.

The Government is taking a much more balanced and nuanced and proportionate

approach to embedding concern for human rights and equality in the work of

the public sector. In the Bill to establish the new Irish Human Rights and

Equality Commission we are taking a different approach to ensuring that

public bodies place equality and human rights at the heart of what they do.

Instead of a formalistic box-ticking exercise, with an enormous

administrative overhead, we are imposing a positive duty on public bodies

to look at the human rights and equality issues they face and address these

in their strategic plans and annual reports. Instead of agreeing

voluminous paper schemes and deploying a small army of staff on monitoring,

the role of the new IHREC will be the much more active one of providing

support and facilitation. We think this will prove to be a much more

positive and useful approach.

The final point: the budgetary decisions are for the democratically-elected

Government of the day and for the approval of the national parliament and

cannot subject to the approval in terms of process or content of any State

agency’s board.

The reality is that resources are limited and additional expenditure

demands or costs arising for whatever reason will have to be paid for

through expenditure reductions elsewhere or through the raising of

additional revenue. Nothing is this Bill can change that reality or be of

any help to Government in making the difficulty decisions that we were

elected to make on behalf of this people as we work to restore our economic

sovereignty.

To conclude, the Bill we have before us is flawed and ineffective and

should go no further. The Government opposes the Bill.