CHECK AGINST DELIVERY
Equality (Miscellaneous Provisions) Bill 2017.
Speech by Minister of State David Stanton T.D.
8th November 2017
A Cheann Comhairle, Deputies,
We share the common objective of wanting to protect persons living in Ireland from discrimination in their daily lives. As you are aware, we have robust protections in place in the Employment Equality Acts 1998-2015 and the Equal Status Acts 2000-2015 to promote equality and to combat discrimination in employment and in access to goods and services. If we are to amend these important pieces of legislation, we need to ensure that the amendments are precise, appropriate and targeted at addressing a particular need.
The Equality (Miscellaneous Provisions) Bill 2017 tabled by Deputy O’Callaghan proposes to extend the discrimination grounds to include a new ground of disadvantaged socio-economic status. The Government agrees with the principle of what the Deputy is attempting to achieve with his Bill. Like the Deputy, we do not wish to see someone denied access to employment or to goods and services because that person lives in at a particular address or belongs to a particular type of family. The Government is also conscious of its international obligations in this area. However, there are flaws in Deputy O’Callaghan’s Bill which are so serious as to prevent us from supporting it. It is a pity that Deputy O’Callaghan did not choose to submit this Bill to pre-legislative scrutiny prior to publication. Many of the flaws that I will identify could have been addressed through that process and a more nuanced Bill presented to this House as a consequence.
A general principle is that statute law should be certain, clear and precise. In a Bill such as this one, one can clearly see that certainty and precision are essential so that the law can be easily interpreted by the person experiencing discrimination, by the courts and by employers, service providers and businesses. Unfortunately, this Bill is characterised by ambiguities and subjectivity.
The Bill, if enacted, would introduce an ambiguous and wide-ranging definition of ‘disadvantaged socio-economic status’ into the Equality Acts. The definition would encompass six separate elements - poverty, level or source of income, homelessness, place of residence or family background’.
As proposed, the definition of ‘disadvantaged socio-economic status’ could give rise to differing interpretations depending on the context. As such, it differs from the existing equality grounds which set out clear characteristics that a person either fulfils or does not fulfil. On the ‘civil status ground’, for instance, a person will immediately know if she or he is single, married, divorced, separated, widowed, a civil partner or former civil partner. Equally, on the ‘Traveller community’ ground, a person is either a Traveller or she or he is not. That is not subject to interpretation. The strength of the current clear definitions in the equality legislation is two-fold. A person at risk of discrimination can immediately know whether or not the protected grounds apply to his or her situation. Equally, and just as importantly, an employer or a provider of goods and services can know the precise situations in which constitute prohibited discrimination. They have to be able to know clearly what differences of treatment are permitted and what are not. The employer or provider of goods and services can then put systems and policies in place to guard against discrimination by themselves or by their staff.
However, the elements included in the proposed definition of ‘disadvantaged socio-economic status’ generate more questions than answers. I propose to go through some of the questions which in my view arise from the definition proposed in this Bill:
- Taking the first element of the definition, namely poverty. How would a person be defined as being in poverty? Would it be a person in consistent poverty or someone in relative poverty?
- Turning to the second element of level of income: How would disadvantaged income levels be defined? Would this relate to a specific income threshold? What about someone who is asset rich but income poor? Would it be relative to the income of others? Would it extend to include any person denied a means-tested benefit because he or she was above a specific income threshold?
- In relation to ‘source of income’, similar questions arise. What constitutes ‘disadvantage’ in this context? Someone on a social welfare payment? Someone working in a specific type of work? Could it indeed include a criminal who gained income through criminality and whose ‘source of income’ was dubious?
- The ‘place of residence’ aspect of the definition also raises questions: Would it be restricted to someone from an area of high income disadvantage? Could a poor person living in a wealthy area also qualify? Would it extend to someone living in a particular type of residence such as an institution? Could a prisoner be eligible to take a case for discrimination arising from his / her ‘place of residence’? Could it encompass someone living in a rural area who was not poor but who had more limited access to employment opportunities? Could a person living in a rural area take a claim if he or she had poorer access to postal or broadband services, for instance, than an equivalent person living in Dublin?
- Turning to ‘family origin’, this element seems particularly ambiguous. Who is intended by this element? A person in a lone parent household? A person from a Traveller family? A person from an ethnic minority family? A person whose parent was not an Irish national? An adopted person?
These questions need to be answered so that we can be clear as to the situations likely to be encompassed by this equality ground. As it stands, the definition’s ambiguity could expand exponentially the number of potential cases that might be taken under the equality legislation, particularly as the Equality Acts encompass indirect as well as direct discrimination.
The ambiguous definition proposed in this Bill could lead to unintended consequences. We could see a situation in which individuals with a good education or training and easy access to finances could take claims based on the ‘level of income’ or ‘place of residence’ elements of the definition. Wealthier individuals could challenge their exclusion from means-tested benefits citing disadvantage on the basis of ‘level of income’. Such individuals could potentially force State resources to be redirected towards addressing their situations rather than targeting those resources to persons in greatest need. It might be difficult, in this context, for public service providers to set criteria restricting the provision of non-statutory services in situations where resources were limited and certain groups needed to be prioritised. The provisions in this Bill also carry the risk of interfering with Ministerial discretion to allocate funding to specific areas.
The Government has taken action in a more targeted manner to address instances of discrimination where it considered that there was a clear need to do so. The Government took action to prohibit discrimination in the letting of residential accommodation on the basis that a person is or is not in receipt of rent supplement or Housing Assistance Payment. The Equality (Miscellaneous Provisions) Act 2015 amended sections 2 and 6 of the Equal Status Act 2000, so a person cannot be discriminated against when renting because they are getting Rent Supplement, HAP or any other social welfare payment. This means that landlords can no longer state, when advertising accommodation, that Rent Supplement (or HAP) is not accepted and they cannot refuse to rent accommodation to a person because he or she is in receipt of a social welfare payment.
The Government’s view is that the case for amendment of the equality legislation must be based on clear evidence. At the moment, we do not have objective evidence that individuals are actually experiencing discrimination because of their address or background. We are relying on anecdotal evidence which may provide a very partial picture. We need to know the extent of any such discrimination. We also need to isolate the potential discrimination from any other factors that might affect the person’s employment status. A person might find it difficult to get employment because she or he had poorer educational qualifications. An individual might find it harder to get employment in a rural area with more limited job opportunities. If we are to amend the equality legislation, we need to be sure that discrimination is what we need to tackle rather than other factors such as training needs or educational disadvantage.
I recognise that this issue is inherently complex and that it is very difficult to arrive at a precise definition. As Deputies may be aware, a report was undertaken by UCC in 2004 on this question. The report - “Extending the Scope of Employment Equality Legislation: Comparative Perspectives on the Prohibited Grounds of Discrimination” - found that discrimination on the basis of socio-economic status is not necessarily revealed by distinctive external features. It also found that there is extreme difficulty in providing proof of discrimination, particularly where the burden of proof lies with the victim of discrimination.
Before proceeding to enact a flawed Bill, we need to examine this issue in more detail so that we can proceed on the basis of a solid evidence base and a targeted definition of need. Accordingly, the Government proposes that it would commission research to establish the extent and prevalence of discrimination on the basis of place of residence or related factors. Such research would also have the purpose of establishing whether or not such discrimination was occurring in relation to employment or in relation to access to goods and services or both. It would establish whether a legislative response was needed and, if so, which Acts needed to be amended. The researchers would also be asked to devise a more precise formulation for the additional equality ground if it were decided that this was needed. In taking this process forward, the Government would seek to work with appropriate state bodies and agencies including the Irish Human Rights and Equality Commission. The Equality Rights Alliance has also done some useful preliminary research in this area as outlined in its report, An Analysis of the Introduction of Socio-Economic Status as a Discrimination Ground. My objective is to set this research process in motion imminently. The immediate priority will be to draft appropriate terms of reference.
As I said at the outset, I share the Deputy’s concern that we should seek to address barriers which create disadvantage for individuals in our society and which prevent them from realising their potential. I believe, Deputies, that we can work together to devise appropriate solutions to this challenge. However, this Bill’s ambiguity is such that, however laudable its intentions, it does not provide an appropriate way forward. Accordingly, I have to inform the House that the Government cannot support this Bill.
I therefore must recommend against acceptance of this Bill.