The Government opposes this Bill on a number of grounds. Firstly, the Bill proposes what could be very resource-intensive obligations on the full range of public bodies to prepare and publish equality impact assessments of their work for approval by the Equality Authority.
In the Bill to establish the new Irish Human Rights and Equality Commission – which we are working on and we hope to publish before too long – 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 paper schemes and monitoring, the role of the new IHREC will be the much more active one of providing support and facilitation. I think this will prove to be a much more positive and useful approach.
Given the proposal to create this elaborate new proofing mechanism, it is particularly ironic that the Bill is accompanied by no explanatory memorandum or impact assessment whatsoever.
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 new grounds. Trade Union membership, socio-economic background, native Irish language speaker, criminal conviction, "qualifying prisoner" (i.e. former IRA prisoner released early under the Good Friday Agreement), and living in a rural area. It is not clear if the omission of the Employment Equality Acts is deliberate, or a drafting error. But the Bill as published does not apply to employment issues.
It is notable as I said – particularly given the impact assessment obligations which the Bill proposes to create – that the Bill is not accompanied by any assessment of the scope of these new grounds or what the impact of incorporating them (with no qualifications or exceptions) in equality legislation might be. It is the Deputy’s job and not my job to undertake such an assessment, but I am setting out on the record some of the most obvious questions and comments that arise and that need to be assessed in an impact assessment of this Bill:
Trade Union ground
It is not clear that circumstances arise in relation to the provision of goods and services in which discrimination on this ground would actually arise.
Trade Union members are not distinguishable from the general population and the Bill does not seek to amend the Employment Equality Acts in this regard. The recognition of Trade Unions in the workplace and the question of protecting persons who join or want to join a Trade Union from victimisation is a separate issue, which is appropriately addressed as an industrial relations issue rather than under equality legislation.
Socio-economic background
No guidance is offered as to what this means, and whether and to what extent it is linked to income levels and ability to pay, or assessment of risk based on income levels (e.g. in relation to provision of financial services, including loans).
Native Irish language speaker ground
It is not clear why this would be necessary, given the constitutional status of the Irish language. The provision of public services to Irish speakers is promoted via the Official Languages Act.
The Private Members Bill refers to discrimination and does not create a general obligation to provide good and services in Irish, but perhaps this is what is intended. Why a distinction is made between ‘native speakers’ (perhaps 2% of the population) and competent speakers who are not native speakers (a further 8 to 10% of the population) is also not clear.
Criminal conviction
As the Bill relates to provision of goods and services only, it is not clear what this ground is intended to achieve in practice. A criminal conviction for fraud or theft would on the face of it appear to be directly relevant to assessment of risk in the case of certain insurance and other financial services.
If one were looking at the employment aspects, then these and other criminal convictions (e.g. sexual offences) would also be directly relevant. However, the Bill chooses not to cover employment issues.
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. 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.
Qualifying prisoners
These are of course in law a subset of the previous category, but the rationale for the Sinn Féin Bill treating them separately is an obvious political one. I know that the question of taxi licenses and licences from the Private Security Authority has been raised.
The Bill may be an attempt to compel the relevant authorities to grant licenses in such cases irrespective of genuine concerns about suitability, but if it is, it would - even if this Bill were enacted - be completely ineffective as it demonstrates a lack of understanding of how the Equal Status Acts operate. 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 legislation – and I would draw the Deputy’s attention to Section 14 of the Equal Status Act 2000 - 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.
Rural area
It is not clear what the intent or envisaged impact is here. An obvious potential impact is in relation to delivery charges by providers of goods, including household goods. It is common practice not to charge for delivery in the immediate vicinity of the shop, but to charge for longer distances, or to limit deliveries to an immediate catchment area. This could be construed as discrimination against rural dwellers.
Another example is that providers of cable television and other telecommunications services may not provide services outside a defined area or may not provide an equal quality service in sparsely-populated areas and again this could under the proposed new provision be construed as discrimination against rural dwellers.
It is not obvious that the real difficulties in providing high-quality broadband services, for example, to rural areas can be addressed by a simple prohibition on ‘discrimination’, or that the increased provision of such services by market providers would be positively encouraged by an outbreak of litigation before the Equality Tribunal.
A final point: the unrealistic ambition of the Bill is also indicated by the inclusion of the Dáil and Seanad and the Government in the definition of ‘public body’ and of the annual budget in the definition of ‘measure’ (i.e. a measure whose impact must be assessed as laid out in a scheme, which scheme must be approved by the Equality Authority) respectively. The budgetary decisions are for the democratically-elected Government of the day and for the approval of the national parliament and not subject to the approval in terms of process or content of any State agency’s board.
Arising from our membership of the European Union and of the Eurozone and through accession to the Fiscal Stability Treaty, the State has legally binding budgetary obligations in relation to the deficits it can run and to the overall level of general government expenditure it can undertake.
Within the parameters required by considerations of prudence and Ireland’s EU obligations, the budgetary decisions as between levels of expenditure and taxation, and as between retention of income by those who earn it versus redistribution to those in need via the social welfare system and other measures, are for the democratically-elected Government of the day and for the approval of the national parliament. 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.
The Government will shortly introduce as promised legislation to establish the new Irish Human Rights and Equality Commission. The provisions of this Bill will include a workable positive duty on public bodies to have regard to equality and human rights issues in their work, in line with the commitment in the Government’s Programme for National Recovery 2011-2016 as follows:
‘We will require all public bodies to take due note of equality and human rights in carrying out their functions.’
We are also working on legislation to consolidate and streamline the various Family Leave Acts, including maternity protection, parental leave and carer’s leave. Once these two projects are taken through to enactment, we will commence a general review of the substantive equality legislation. This will include looking at whether there is a case for creation of new grounds, as well as looking at the scope to simplify and streamline the two main sets of legislation – Equal Status and Employment Protection – involved.
In the meantime, the Bill we have before us is confused and ineffective. If the Deputy and his party are genuinely concerned about equality, they will have to try harder to master the brief.