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Equality (Miscellaneous Provisions) Bill 2017: Second Stage [Private Members] (Continued)

Wednesday, 8 November 2017

Dáil Éireann Debate
Vol. 961 No. 2

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(Speaker Continuing)

[Deputy Mary Butler: Information on Mary Butler Zoom on Mary Butler] International and European human rights organisations have increasingly called for the introduction of a social origin ground in equality legislation. The Bill aims to act on these recommendations by formally forbidding discrimination based on socioeconomic and social background. Fianna Fáil recognises that enhancing social conditions and creating better opportunities for people are the fundamental methods of supporting disadvantaged communities. The Bill is just one proposal to tackle inequality and break down barriers for those living in disadvantaged areas.

Minister for Justice and Equality (Deputy Charles Flanagan): Information on Charles Flanagan Zoom on Charles Flanagan The debate has confirmed the support across the House for ensuring individuals or groups in Irish society will not in any way be disadvantaged by virtue of their socioeconomic status when seeking employment or access to services. I can confirm that the Government strongly shares that view. However, I do not believe the Bill provides the answer to the challenge.

Adding a new ground of socioeconomic status to equality legislation would be inherently complex. It has been attempted on a number of occasions without success. I remind the Dáil that the question of including socioeconomic status as a ground of discrimination in equality legislation was examined and rejected by the Fianna Fáil Government of 2002-07, as well as by the recent Fine Gael-Labour Party Government. The reasons given for rejection by both Governments remain as valid today as they were then. In this context, the Minister of State, Deputy David Stanton, referred to the UCC report of 2004 which confirmed the extreme difficulty in providing proof of discrimination on this basis. The International Labour Organization Committee of Experts has also noted that the problem of discrimination based on “social origin” is “unquestionably one of the most difficult to define”.

The inclusion of such a ground in equality legislation is relatively new at European level and definitions vary between EU member states. Some such as Belgium and Denmark have introduced the concept of "social origin" in their equality legislation. Others such as Latvia are using the concepts of "property" and "place of residence" to address discrimination on socioeconomic grounds. Meanwhile, Lithuania uses the term "social status". The application of such concepts in case law at EU level is still in its infancy. Equinet, the network of equality bodies, has indicated that equality bodies are only now beginning to develop greater clarity on how the new ground could be operationalised. We should be careful about moving down a road where concepts, definitions and applicability are still very much in an area of uncertainty, lack clarity and are somewhat in flux.

As the Minister of State, Deputy David Stanton, indicated, Deputy Jim O’Callaghan’s Bill proposes a definition of "disadvantaged socioeconomic status"’ which, in essence, is ambiguous. That ambiguity creates the risk of exponentially increasing the number of potential claims under equality legislation. The potential impact on the public and private sectors could be significant. If the number of claims were to rise exponentially, it could impose an undue burden on business, employers and public service providers. Care must be taken to ensure measures do not go beyond what is reasonable, proportionate and, above all, necessary. Moreover, as the Minister of State pointed out, a general principle is that statute law should be certain, clear and precise in order that it can be easily interpreted by the person whom a law such as the one that has been proposed seeks to protect. It should also be easily interpreted by the courts in order that employers, service providers and businesses are clearly aware of their obligations under law.

The Government has taken a series of measures to strengthen the equality legislation and target specific economic areas such as access to housing. As the Minister of State said, the Government brought forward the Equality (Miscellaneous Provisions) Act 2015 which prohibits discrimination in the letting of residential accommodation on the basis that a person is or is not in receipt of rent supplement or the housing assistance payment. The Government considered that this was a clear instance where there was concrete evidence of discrimination and where amending the equality legislation would achieve the objective of ending such discrimination.

Similarly, the Government brought forward the Irish Human Rights and Equality Commission Act 2014 which established the Irish Human Rights and Equality Commission and set it on a sound footing, independent of the Government, answerable to the Oireachtas and well funded. The Act also introduced the concept of a public sector equality and human rights duty. That duty imposes an obligation on public bodies to eliminate discrimination, promote equality of opportunity and protect the human rights of staff and service users. It provides a means of addressing structural issues and developing the capacity within the public service to promote equality and human rights. The Irish Human Rights and Equality Commission is working with public sector bodies to embed the duty into their work and realise the potential of this important provision in law.

Similarly, A Programme for a Partnership Government has committed the Government to developing the process of budget and policy proofing as a means of advancing equality, reducing poverty and strengthening economic and social rights. The Oireachtas is playing a key role in that process. The Irish Human Rights and Equality Commission has been given a specific mandate to support this work. The Department of Public Expenditure and Reform is working actively with a range of Departments to develop their capacity in the area of gender budgeting. Such tools have the potential to target structural disadvantage in an effective manner. Their benefit is that they do not require an individual victim to go through the process of taking an equality claim and undergoing the difficult process of proving discrimination. Instead, they promote the process of structural change at organisational level.

Equally, the equality legislation may not be the most effective legislative instrument to combat exploitation or tackle disadvantage. The enactment of legislation focused on a specific problem issue may be more effective. Socioeconomic disadvantage may be caused by working conditions. One of the Government’s legislative priorities is to address the problems caused by the increased casualisation of work and to strengthen the regulation of precarious employment. This was a commitment in the programme for Government and the draft legislation which was approved by the Government earlier this year aims to fulfil it. The draft legislation aims to address a number of issues which have been identified as being areas where current employment rights legislation can be strengthened. Perhaps this would be a more appropriate way of enhancing the rights of people disadvantaged by socioeconomic status as there is a particular emphasis on low-paid, vulnerable persons in the workforce.

The legislative proposals will address the following key areas: ensuring employees are better informed about the nature of their employment arrangements and, in particular, their core terms at an early stage of their employment; strengthening the provisions around minimum payments to lower paid or vulnerable workers who may be called in to work for a period but not provided with any work on their arrival; prohibiting zero hour contracts, except in cases of genuine casual work, emergency cover or short-term relief work for that employer; ensuring workers on low-hour contracts who consistently work more hours each week than provided for in their contracts of employment are entitled to be placed in a band of hours that reflects the reality of the hours they have worked over an extended period; and reinforcing the anti-victimisation provisions for employees who try to invoke a right under these proposals. The proposals are the result of extensive consultations which included a public consultation process following the University of Limerick study of zero hour and low-hour contracts. They were also informed by a detailed dialogue process with IBEC and ICTU over a period of several months.

The challenge of addressing socioeconomic disadvantage requires policy solutions as the primary response. Greater socioeconomic equality can be achieved through greater participation in education, effective labour market activation measures and other social supports and the creation of increased employment opportunities.

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