Check Against Delivery

Seanad Adjournment Motion on 28 February 2013

To ask the Minister for Justice, Equality and Defence if any progress has been made on the commitment he gave to this House on 2nd May 2012 to bring forward amendments to section 37 of the Employment Equality Act 1998 early in the New Year.

- Senator Averil Power

RESPONSE by MINISTER OF STATE JOE COSTELLO on behalf of the Minister for Justice, Equality and Defence Alan Shatter, TD

I am responding to this adjournment motion today on behalf of my colleague, the Minister for Justice, Equality and Defence, Mr. Alan Shatter, T.D.

The first point to be made is to restate the commitment of Minister Shatter, along with Minister Ruairí Quinn, the Minister for Education and Skills, to strengthening the statutory protection for equality in this area.

The Government has undertaken in its Programme for Government to ensure 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.

Minister Shatter has previously expressed concern about the potential impact of section 37 of the Employment Equality Acts on lesbian, gay, bisexual and transgender persons.

This section is designed to allow schools and other institutions to maintain their religious ethos. It was examined by the Supreme Court in 1996 when the Employment Equality Bill of 1996 was referred to it under Article 26 of the Constitution. The Supreme Court found that it is a reasonable balancing in legislation of the different rights involved, including chiefly the right to earn a living and the rights to freedom of religion and association.

Minister Shatter is concerned however that, in practice, the balance is not a fair one and that in practice this provision can operate in a way that is unfair to LGBT persons.

In this House last May, Minister Shatter welcomed the dialogue initiated by Senator Power and set out his own preliminary ideas on how reform might be approached, having regard to advice that this provision of the Employment Equality Acts touches on issues of the profound constitutional sensitivity and importance.

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.

As a pluralist constitutional democracy it is incumbent on the legislature to respect and promote both equality of treatment and tolerance of and respect for religious differences.

For these reasons, Minister Shatter considered that an extensive consultative process and formal assessment of the options should be undertaken. It remains, therefore, his intention to ask the new Irish Human Rights and Equality Commissioners to examine the issue as a priority. The Commission will be invited to report on their views and recommendations to the two Ministers centrally concerned, the Minister for Education and Skills and the Minister for Justice and Equality and to the House. Minister Shatter wishes to stress his commitment - once this necessary consultation process is completed - to bringing forward Government proposals for any necessary anti-discrimination amendment to this provision.

To address the core of this motion, the following progress has been made to date.

Senators will be aware of the publication on 5 June 2012 of the General Scheme of a Bill to replace the Equality Authority and the Human Rights Commission with a new Irish Human Rights Equality Commission. Drafting of the Irish Human Rights and Equality Bill 2013 is itself at an advanced stage. Minister Shatter expects to be in a position to bring this to Cabinet in the near future.

At the same time, practical preparations to establish the new Irish Human Rights and Equality Commission have also advanced. As Senators will be aware, an independent selection process in relation to the membership of the new Commission is underway. The intention is that the successful applicants will be appointed to the two existing bodies, the Equality Authority and the Human Rights Commission, pending enactment of the necessary legislation to effect the merger. I should also mention that it is also intended that the successful applicants will meet with the Joint Committee on Justice, Defence and Equality. While the selection process and timetable are matters for the independent selection panel, Minister Shatter hopes to be in a position to make a further announcement in relation to the appointment of the new Commission soon.

This is a necessary preparatory step to the consultation envisaged by Minister Shatter and one which he had hoped to be able to conclude by now. He acknowledges that there may be frustration in some quarters anxious for a swift amendment to Section 37. However, he cautions against action without having given all interested parties the opportunity to contribute to the debate and fully consider all the options open to us. The new Commission will be uniquely placed to carry out such a consultation.

Finally, Minister Shatter considers it is worth noting the priority that the Government has given over the past year to events highlighting issues affecting LGBT persons, both nationally and on the EU stage. These events have included the first EU Presidency side-event on LGBT issues since 2004, which focused on homophobic and transphobic bullying. He feels strongly that this work is important groundwork in preparing for informed public debate on these issues in the forthcoming consultation and for future discussions in this House.