Vol. 175 Wednesday, No. 11 18 February 2004

DI´OSPO´ IREACHTAI´ PARLAIMINTE PARLIAMENTARY DEBATES

SEANAD E´ IREANN

TUAIRISC OIFIGIU´ IL—Neamhcheartaithe (OFFICIAL REPORT—Unrevised)

Wednesday, 18 February 2004.

Business of Seanad ………………………………773 European of the Year: Statements …………………………773 Order of Business …………………………………777 Equality Bill 2004: Committee Stage …………………………792 Civil Registration Bill 2003: Committee Stage ………………………837 Revenue Commissioners: Motion……………………………879 Civil Registration Bill 2003: Committee Stage (resumed) …………………907 Adjournment Matters: Water and Sewerage Schemes …………………………938 Schools Refurbishment ……………………………941 773 774

SEANAD E´ IREANN Maurice Hayes who has been named European of the Year by a panel of distinguished and ———— independent adjudicators. He was given his award early on Monday afternoon before a large De´ Ce´adaoin, 18 Feabhra 2004. crowd of 300 people. The Senator received a high Wednesday, 18 February 2004. accolade, not just from those present but also from the President of Ireland, the representatives ———— of European movements in many member states and accession countries and other distinguished Chuaigh an Cathaoirleach i gceannas ar invitees. It would be difficult to match what the 10:30 a.m. President said about Senator Maurice Hayes because she knows him well. President McAleese Paidir. and the Senator have worked together and observed each other and it is clear they have ———— extreme fondness for each other. The President Prayer. has a high regard for the work Senator Maurice Hayes has done. ———— After the first Nice referendum, Senator Maurice Hayes undertook an odyssey — there is Business of Seanad. no other way to describe it — of Ireland. He visited cities, towns and villages across the An Cathaoirleach: I have received notice from country to communicate the message of Europe. Senator McHugh that, on the motion for the He did not merely inform people about what Adjournment of the House today, he proposes to Europe has given us — in practical terms that raise the following matter: formed part of his message — but he also The need for the Minister for Education and delineated the rich heritage and culture of Science to indicate when the refurbishment Europe, of which we were part before many of project for Ballyraine national school, those who might be regarded as being of Letterkenny, County Donegal, will progress to mainstream Europe. Senator Maurice Hayes advanced architectural planning and when it expressed it so well when he said that we were will go to tender. Europeans before the term was ever devised. I recall attending one of the early gatherings I have also received notice from Senator the Senator convened in Athlone to impart his Finucane of the following matter: message. He communicated that message on an The need for the Minister for Health and all-party basis and had people from the different Children to clarify the position regarding a political parties with him to provide assistance in radiotherapy unit at the Regional Hospital that regard. A large, enthusiastic but sometimes Limerick taking account of the support from bellicose crowd in Athlone IT witnessed his skills the Mid-Western Hospital Trust and the Mid- of dissertation and his use of realistic, homely and Western Health Board. matter of fact language. I recall speaking afterwards to some of those who had engaged in I have also received notice from Senator Ulick robust debate during the gathering and they Burke of the following matter: informed me that at least they could understand The need for the Minister for the the Senator and knew what he was talking about. Environment, Heritage and Local Government Senator Maurice Hayes has displayed to approve the preliminary report of Galway dedication to the culture and traditions of County Council on the provision of funding for Europe, which have lasted many centuries, and a sewage treatment system at Kinvara, County the poets, wanderers, minstrels and, in their day, Galway. legislators. He has given such rich expression to I regard the matters raised by the Senators as his beliefs in this regard. suitable for discussion on the Adjournment and There are many facets to the Senator’s life and they will be taken at the conclusion of business. he has always brought dignity and distinction to the roles — ombudsman, town clerk or chairman of the Forum on Europe — he has played. European of the Year: Statements. Whatever job he undertakes, he brings to it his Ms O’Rourke: I thank the Cathaoirleach for his own particular force of personality. guidance in respect of this matter and for We are honoured that Senator Maurice Hayes, deciding that because the occasion is so important an appointee of the Taoiseach, is a Member of for the Seanad and for the person concerned, and this House. When he speaks in this Chamber even though it is not allowed in the normal course there is a sagacity to his words which always of events, we will offer our congratulations before strikes me as a mark of the wisdom brought on the Order of Business. by experience. The Senator brings the latter to I have great pleasure, as Leader of the House bear on whatever he says or does. There is a song and on behalf of my party, to pass on an called “The Star of the County Down” which is enthusiastic vote of congratulations to Senator about a woman but in this instance we have our 775 European of the Year: 18 February 2004. Statements 776

[Ms O’Rourke.] of Ireland where people listened to his words of own star of County Down in this Chamber and I wisdom on Europe. I spent one evening with him pay great tribute to him. in Du´ n Chaoin. Bhı´ muid ag argo´ int agus ag cur na dı´ospo´ ireacta ata´ coitianta sa Teach seo ach An Cathaoirleach: Only the leader of each nach raibh ag tarlu´ i measc an ghna´thphobal os group may contribute. comhair na ndaoine. Sin an jab ata´ de´anta aige nı´os mo´ na´ aon rud eile — ta´ se´ in ann, i mBe´arla Mr. B. Hayes: I second the motion proposed agus i nGaeilge, an tionscnamh Eorpach a chur by the Leader to mark the great occasion of the faoi bhra´id na ndaoine. He said that had to be nomination of Senator Maurice Hayes as done articulately, clearly and in a way that European of the Year. Senator Hayes is a modest reaches and touches people. As Senator Maurice man and I suspect he is trying to find his feet at Hayes said during the week, we are very close to this point. I assure the Senator that no one on a point at which nearly half the population was this side of the House will ask him to run for the born since we joined Europe. We must keep that park after this accolade although I suspect there fact in our minds when we talk about Europe as are many who would like him to do so. This is a being something distant from us and out there. It great occasion for the Senator and the House. is much closer to us now. Those of us who have come to know Senator Senator Maurice Hayes has been a servant of Maurice Hayes in recent years are aware that he democracy. He has shown himself to be fair. He is a person of absolute integrity. He brings to this has served with distinction and no one deserves House a great body of experience as a former more the accolade which has been granted to him official who served for a long period in very this week. I congratulate him. public roles particularly in Northern Ireland, but also in this State. He conducts himself in this Mr. Ryan: It is difficult to add to what House with great independence and we are very everybody else has said. The Labour Party group lucky to have him here. agrees with all the sentiments expressed. As It is absolutely appropriate that the Senator perhaps one of the few Members of the should receive this accolade at this time. I have Oireachtas with a foot in the camp that was most spoken to many colleagues on all sides of this hostile to the European project over many years, House and the Da´il and they are very I must say that none of those I know who appreciative of his work during the first approached the forum with scepticism left it with referendum on the Nice treaty. Senator Maurice other than a feeling that they were treated fairly, Hayes chaired with great gusto and skill the given a hearing and drawn in to a dialogue from Forum on Europe. He has travelled to every which perhaps many had felt excluded in the past. corner of the country to get across the message Sea´nO´ Faola´in famously described an Irish that Europe is not only important for Ireland, but conversation as being like two men playing that we have a huge contribution to make to the handball against two sides of the same wall, project. appearing to be in contact yet totally oblivious to It is significant that Senator Hayes has received each other. Senator Maurice Hayes has drawn the this award. I second the vote of congratulations country into a serious dialogue on Europe which on behalf of the Fine Gael group. The Senator was long overdue, and has done it so quietly that should keep up his good work on Europe. We one could easily believe there was no skill have so much to learn from his experience. His involved. The opposite is the case. The standing has greatly contributed to the standing extraordinary skill lay in doing it quietly and of the entire House throughout the country. I firmly, in a way which drew everybody in. Thug congratulate him on behalf of my group. se´, mar a du´ irt an Seanado´ rO´ Tuathail, cluas le gach sruth sa dı´ospo´ ireacht faoi todhchaı´ na Mr. O’Toole: The Leader says it is great to see hEorpa agus todhchaı´ na tı´re seo san Eorap, ina one of us being given a distinction. The measc an Ghaeilge agus na mionnteangacha uilig Independent Members consider Senator Maurice ata´ scaipithe timpeall na hEorpa. Hayes one of us and we have always kept a seat To put it mildly, this is a well deserved honour. for him on this side of the House. Regarding the Those who chose Senator Maurice Hayes as star of the County Down, I remember years ago European of the Year chose very well, and I am reading his autobiography and being delighted to delighted to be associated with the see that he might be more likely to be called the congratulations. rose of Tralee as all his roots are in north Kerry where he is well loved and regarded. Mr. Dardis: I am delighted the House is Senator Maurice Hayes has served as chairman recognising this achievement by Senator Maurice of the Forum on Europe. He has brought added Hayes in being given the European of the Year value and new definition to the concept of public award. I and all those who have been associated service in two jurisdictions. He has brought a new with the forum are well aware of the amount of understanding of Europe to every corner of this work and effort Senator Hayes put into it. country and he has done it in English, i nGaeilge Moreover, he always ensured that there would be and, for all I know, in Scots Gaelic also. It was a balance of opinion and that all voices were wonderful to see the Senator in so many corners represented. The central achievement of what he 777 Order of 18 February 2004. Business 778 has done at the forum is to bring Europe to a Mr. B. Hayes: Last week the House was told wider audience and demystify some of the jargon by a Minister that no legislation was required to that surrounds it. Many more people in this bring about electronic voting for the elections in country have an understanding of Europe as a June. We were told there was no need for an result of his work. independent panel or commission to monitor and There is an unfortunate tendency on these advise on the operation of electronic voting, that occasions to make tributes sound like obituaries, there was a mechanism in place to allow people and I know that is not what Senator Hayes would spoil their vote if that was their choice and that want. It is appropriate that we recognise his work the Government had confidence in the at the forum, in this House, with the Gaelic consultants who were responsible for the Athletic Association and in his previous advertising campaign on electronic voting, yet the incarnation as a public servant. His experience introduction of that had been shown to be with the Patten Commission may have served him entirely partial against my party when it first well when it came to dealing with some of the came about two weeks ago. Will the Leader agree rowdier elements at the Forum on Europe, and that the handling of this issue by the Minister for this country and Europe owe him a significant the Environment, Heritage and Local debt. It is appropriate that we recognise that. Government in particular has been a fiasco from start to finish? Will she agree also that now is the An Cathaoirleach: I too wish to be associated time to work with the Opposition to bring about a with the tributes being paid to Senator Maurice consensus on the issue of electronic voting? This Hayes. The first time I heard of him was nearly country is one of the oldest democracies in 54 years ago, when Down won its first All-Ireland western Europe and the bedrock of that football title. He was secretary of the Down democracy has been the public support for our county board at the time and I am sure he played voting system from the foundation of the State. a significant part in achieving that great success We should not tamper lightly with it. Will the over Kerry, where, as Senator O’Toole said, Leader agree that the entire operation needs to Senator Hayes has ancestral connections. be stopped in its tracks until such time as there is It is a great honour, not only for Senator consensus among all the parties, which currently Maurice Hayes but for the Seanad, because this is not the case? Will she agree it is time to stop is the first time a Senator has been awarded this the operation until that consensus is achieved? high honour. In this sense, he has created history, In a superb series of articles by Carl O’Brien and I join in the congratulations. in The Irish Times over the past number of weeks he has been relaying to the country at large the Dr. M. Hayes: I am sorry for having messed up shambles that exists in terms of helping children the Order of Business, but I am overwhelmed by who get into difficulty with the law through the the affection of the House, which has really Children’s Court. It is a superb piece of touched me. As I said at the time, I accepted the journalism and I congratulate him on it. Will the award in the same way as a captain of a team Leader consider providing time for a debate on does, as a tribute to the forum and to everyone the issue of disturbed children who have found no connected with it. Senator Brian Hayes said I was place in terms of rehabilitation and whose parents a modest man, and he is quite right. I would only cannot deal with them because they are a danger have added that I have much to be modest about. to themselves and to their parents? We should I have benefited enormously from membership of debate this issue because if the series of articles the Seanad, the collegiality I find here and the by Mr. O’Brien in The Irish Times has shown us nature of the debates. It has enriched my life. I anything it is that there is very little provision for have also benefited from your kindness on all children under the age of 18 who get into this occasions, a Chathaoirligh, and I sincerely thank kind of difficulty on a regular basis. I congratulate the Members for their kind expressions. As I said, him on an excellent piece of journalism. I am glad it is the forum that is being recognised. It was an important development because it has Mr. O’Toole: I have raised consistently and in done important work. I was very glad to be a mannerly fashion my concern that the motion associated with it and to be able to lead it. passed in this House on 28 May last on auctioneers has been ignored by the Department of Justice, Equality and Law Reform. Order of Business. Ms O’Rourke: The Order of Business is No. 1, Ms O’Rourke: I will have a statement on that the Equality Bill 2004 — Committee Stage, to be at the end of the Order of Business. taken on the conclusion of the Order of Business and to conclude at 2 p.m.; No. 2, Civil Mr. O’Toole: On that basis I will park the issue Registration Bill 2003 — Committee Stage, to be for another day. On the question of electronic taken at 2.30 p.m. until 5 p.m., to resume on the voting and this morning’s newspaper reports on conclusion of Private Members’ Business and it, whereas I do not agree with Senator Brian conclude not later than 8.30 p.m.; and No. 15, Hayes that we are one of the oldest democracies motion No. 22, to be taken from 5 p.m. to 7 p.m. in Europe, though we are around for a while, a There will be a sos from 2 p.m. to 2.30 p.m. sufficient number of questions have now been 779 Order of 18 February 2004. Business 780

[Mr. O’Toole.] Over the weekend the Government took to asked about this issue to warrant it being itself decisions on how the dormant accounts addressed. The only way to do that is across the funds would be disbursed. We had a long debate board. No one party has a greater political and an independent body was set up. The investment in this issue than another. This is all Taoiseach said in the Da´il yesterday it was only a about giving popular legitimacy to the whole small sum of money and that he thought it was a operation of balloting. There are too many storm in a teacup. To most of us 180 million is a questions. It is not a matter of the rights or the large sum of money. This issue should be debated wrongs of it, but how people perceive it. If ever properly in both Houses of the Oireachtas there was a situation where the perception is because until the Oireachtas knows what is going reality, this is it. The Government will have to on, it has all the appearances of an election slush readjust its position. This should not be made a fund grabbed by Fianna Fa´il, with the collusion party political issue. Questions have been raised of the Progressive Democrats, to buy votes in the and we all have a responsibility to address that local elections. issue in a fair and open way that gives people confidence in what we are doing. That is an issue (Interruptions). we should examine. It is welcome that the Government is looking anew at it and it is now a Mr. Ryan: Why would they do such a thing? question of how we move it on. I am sure the House will agree that the decision Mr. Glynn: Typical Labour diatribe. taken by the Minister for Finance in regard to the shares of Eircom workers could not be seen in Mr. Ryan: A body has been set up. I have a any way other than pro-worker and pro-employer document produced by Relate telling me how it and recognising their contribution. It is incorrect will be done. The Government suddenly decided to see it as pro or anti a particular company or it would not do that, but would do it a different anti the shareholders of the company. It did what way. This is a Government which has given us has always been the case and what we have lectures about decentralisation and taking power always asked of successive Ministers for Finance out of the centre, but it grabs back to itself 180 of whatever party. This issue was dealt with by million to spend as it wishes over the next six Labour Party, Fine Gael and Fianna Fa´il months. Ministers at various times, all of whom have taken particular decisions. I welcome the decision Senators: Hear, hear. and regard it as the correct one. I ask that the Leader also—— Mr. Ryan: We need to hear in detail in this House why that decision was taken. Mr. Norris: Has the Senator a question for the Leader? An Cathaoirleach: The Senator is calling for a debate. An Cathaoirleach: There will be only one Mr. Mooney: In light of newspaper reports this Cathaoirleach. morning about the Garda intention to roll out the lo-call informer telephone service, with which Mr. Norris: Chair the forum. those in the south east will be familiar and which the rest of the country will now experience, I ask Mr. O’Toole: ——support me on that point as the Leader to get assurances from the Garda I know she will. Commissioner and from the political master, the Minister for Justice, Equality and Law Reform, Mr. Ryan: It is a great pity that it takes such that this scheme will not be abused. I fully accept enormous effort to get a Government to realise that the noble aspiration behind it is to reduce we are not all Luddites because we are wary of speeding and, ultimately, to save lives, but the the method of electronic voting that is being human condition does not always subscribe to introduced. The constituents I serve in the NUI theory. Those of us who travel the roads of are an undemanding group by and large — some Ireland will testify that as the road structure say that is why they vote for me. Many a Fianna improves and speed increases, the safest roads are Fa´il member has tried the same route and failed motorways. However, there are motorists who, gloriously so I would not make too much of it. for some strange reason or because of some However, they rarely are too agitated about peculiar approach to driving, believe they own matters but this issue has resulted in me being the road and that nobody can pass them by, even approached by a number of people who not only if they are doing 40 miles per hour. Will such are not Luddites, but are more expert than I on people make telephone calls and clog up the this issue and they are extraordinarily wary of telephone lines with nuisance calls, begrudgery or what the Government proposes to do. I will say envy? I raise the matter because I was the subject no more than that. This is not about hostility to of such a call two years ago when in a city in electronic voting but about understanding the the south east, although it was not a driver who limits of what computers can do. complained but a passenger. 781 Order of 18 February 2004. Business 782

Mr. B. Hayes: It may have been a party Mr. Norris: I agree with the sentiments member. expressed by my colleagues on electronic voting. Apart from that, I will confine my remarks on Mr. Mooney: While nothing came of it, I was this to congratulating myself on having raised this in the right and that person was in the wrong. issue some months ago in this House, before it There is a danger inherent in this which affects was raised in the Da´il. everybody. As I am in a congratulatory mood, I ask the House to join with me in congratulating Professor An Cathaoirleach: Is the Senator seeking a O’Leary--—— debate? An Cathaoirleach: I do not think that is in Mr. Mooney: Yes. My concern is that whenever order. the public is relied upon to phone in because they do not like something they see on the roads, the Mr. Norris: Then I will just do it myself. situation is open to abuse. I have had no assurances from any quarter that this service will An Cathaoirleach: We have a policy on be monitored to ensure that those driving safely congratulations. and with a high degree of propriety, as most do, will not be subjected to complaints from those Mr. Norris: I think it is appropriate to refer to a who, for reasons best known to themselves, principle underlying the announcement of a very decide to make a telephone call. There should be important discovery by Professor O’Leary assurances in this regard from the Minister. regarding testing for cervical cancer. He seems to have made a discovery which will make the return Mr. Finucane: I support Senator Brian Hayes of test results much more efficient, rapid and on electronic voting. I am in favour of electronic accurate. More important — this is a matter I voting but am extremely concerned about the have raised previously in regard to other reservations that have been expressed, in disciplines — the most striking point is that he particular regarding security. The Minister for the refused to patent the discovery because it would Environment, Heritage and Local Government, be of use to people around the world. If one Deputy Cullen, adopts an almost gung ho attitude contrasts that with the actions of the American to the issue. It is worth bearing in mind that doctor who patented the genetic code of one of further concerns have arisen in regard to the his patients, the example of Professor O’Leary is Minister’s actions because he is the national something of which Ireland can be proud. director of elections for Fianna Fa´il in the We might consider the situation regarding the upcoming local elections. I urge caution on the Red Bull drink which is banned in France. I am Minister. I am glad he has rolled back on certain aware we are looking at the matter here, but aspects of this and hope he will roll back on other there does not appear to be a desire to ban it, aspects also. which I do not understand. It should not be put Members will be aware there has been extreme into Vodka and so on because of its effect. This concern in recent days regarding the Ardoyne combination is responsible for much of the area of Belfast where 13 young people have misbehaviour in cities like Dublin. I do not know committed suicide within a few why it cannot be banned. If the French can ban it, and if it can be shown to be socially 11 o’clock weeks. This has been linked and associated with the gangsterism and destructive, why not ban it? tactics adopted by the INLA in that area. While Dr. Mansergh: I have much sympathy with the I am not a member of the British-Irish point made by Senator Norris, even though I Commission, it is an issue the commission should would remind him that his colleague on the discuss and which the Taoiseach should take up Independent benches very much deprecates self- with the relevant authorities in Northern Ireland. congratulation. If this gangsterism is allowed to prevail, the good done in the context of the Agreement will break An Cathaoirleach: The Senator should speak down. Anybody following the debate over the on the Order of Business. past few days would be extremely concerned by what is happening in Belfast. The issue requires Dr. Mansergh: I support what Senator a response from this jurisdiction and should be Finucane said. Some people have tried to justify tackled in Belfast. paramilitary campaigns and activities in regard to civil rights. They are the absolute antithesis of Mr. Brady: I ask the Leader to organise a civil and human rights. debate on the review of the drugs strategy. Recent developments in the UK and Northern Mr. Ryan: Hear, hear. Ireland have seen cannabis re-designated as a class B drug, and this is causing huge confusion, Dr. Mansergh: The point has been made about not just from a legal point of view but also among dormant accounts. For 17 years, I have heard the population as a whole, particularly young allegations about different schemes and slush people. A debate would be timely in this regard. funds. When grants are announced, I do not hear 783 Order of 18 February 2004. Business 784

[Dr. Mansergh.] of the Minister, Deputy McCreevy, in this regard the Opposition saying which grants to which are nothing short of scandalous and disgraceful. worthy community projects should be rescinded. It is a cynical attempt to build up a slush fund to buy votes for the forthcoming local and European Mr. B. Hayes: What about Punchestown? elections. It is every bit as bad as the performance Jackie Healy-Rae would have something to say of the Government prior to the last general about that. election.

(Interruptions). An Cathaoirleach: Has the Senator a question for the Leader? An Cathaoirleach: Order, please. Mr. McCarthy: Will the Leader confirm Dr. Mansergh: I have forgotten my final point. whether this was a sinister attempt on the part of the Minister for Finance to buy votes in the Mr. Bannon: Yesterday was “weary Tuesday” forthcoming local and European elections? I have for many people throughout the country when no doubt, nor has the public at large, that this is their hopes and aspirations were dashed the case. following the announcement that many jobs The second issue relates to the announcement promised by the Ta´naiste and the PDs prior to this week that the 1,100 jobs due to materialise in the last general election would be lost. Longford following the establishment of an American health care company will not now Dr. Mansergh: The Ta´naiste dealt with that happen. This is very disappointing for the issue this morning. particular area and the region in general. The 1,100 jobs are directly linked to the “golden An Cathaoirleach: A question to the Leader, Thursday” announcements. I ask the Leader to please. arrange for the Ta´naiste to visit this House and debate every jobs announcement she made that Mr. Bannon: Were the phantom jobs day. The list of jobs that have not materialised announced for Longford, Limerick, Galway and is endless. In each area that was included in an other constituencies where the PDs won announcement, the Progressive Democrats seats—— marginally won the last seat.

An Cathaoirleach: Has the Senator a question Mr. McHugh: In the same vein, we need a for the Leader? debate on job policy in the north west. Senator Bannon alluded to competition and there is an Mr. Bannon: I have a question. ongoing debate about Eircom and what went wrong with the take-over bid. It was a mistake to An Cathaoirleach: Then put the question. privatise Eircom because there is a monopoly on telecom provision in Donegal and companies will Mr. Bannon: I want to know why Ireland has not go there because it is too expensive and there lost its competitive edge. Why are so many is no competition. That is only one aspect of the international companies pulling out of the infrastructural deficit we face in terms of creating country? Is it because we have lost jobs. This is a serious issue. There are no competitiveness? I call on the golden girl of announcements of major job losses in Donegal golden Thursday to come to this House and because there are no jobs. debate the issue. An Cathaoirleach: Is the Senator seeking a Senators: Hear, hear. debate?

An Cathaoirleach: That is not appropriate. Mr. McHugh: Yes. Competition is the key and we must have a debate. Senator Bannon and Dr. M. Hayes: I would like to be associated Senator McCarthy raised a serious issue and the with the remarks about suicides in the Ardoyne, Ta´naiste should come to the House as soon as which is a hugely complex issue. We must all ask possible. ourselves about the breakdown in social structures that leaves young people without hope. Mr. Minihan: In recent weeks we have It is an unanswerable argument for involving discussed the transmission of pornography via policing. Vigilantes are terrorising people. As mobile telephones. Another worrying case has well as talking to the British Government, the arisen in the past week that reflects a gap in the Taoiseach might encourage all parties to the law. The Posts and Telegraphs Act 1951 does not Good Friday Agreement to play their part in apply to mobile telephones but only to building up proper policing structures in telecommunications under the auspices of Bord Northern Ireland. Telecom. I ask the Leader to take up this matter with the Minister for Communications, Marine Mr. McCarthy: I support my colleague, Senator and Natural Resources because it is one thing for Ryan, on the dormant accounts fund. The actions us to talk about the issue in this House but the 785 Order of 18 February 2004. Business 786 onus is on us to amend the law if a gap is found and I want the Minister to come to the House as has happened in this case. An amendment to and give us a clear picture of the implications of the Act would enable the authorities to apply the tax measures he intends to introduce for this law properly. industry because they do not appear to be equitable or fair. Mr. Quinn: Once again the newspapers have featured the number of road deaths that have An Cathaoirleach: The Finance Bill will be occurred in the past two weeks. I was approached taken in this House soon and matters such as that yesterday by someone who is very concerned that can be raised during that debate. when his son failed his driving test, he was told he would have to wait 50 weeks to retake it. I Mr. Feighan: To ensure there is good checked this and a person who lives in Tallaght governance in regard to taxation, the Minister must wait 55 weeks and a person in Raheny 54 should come to the House and clarify a weeks to retake the test. Those who come from situation—— outside the State cannot believe that people who fail a driving test continue to drive while they An Cathaoirleach: In the Finance Bill. wait up to 55 weeks before they can retake the test. This is in the hands of the Minister for the Mr. Feighan: ——which appears to be wrong Environment, Heritage and Local Government. I and inequitable. raised the issue two years ago and was told action was being taken on it. It clearly was not and I ask Dr. Henry: The development of the new test the Leader to draw the attention of the Minister for cervical cancer by Professor John O’Leary to the serious nature of these delays. and his team in Trinity College is good news, but it would be even better news for the women of Mr. Dooley: I ask the Leader to organise a Ireland if the long promised national screening debate as soon as possible on the Government’s programme for cervical cancer was brought in. jobs policy. It is important that the efforts and Will the Leader of the House ask the Minister for successes in creating jobs in recent years are Health and Children to come to the House and recognised. address this issue because each year 50 to 60 Irish women die from cervical cancer and it is Mr. Bannon: What about the hollow promises recognised that if a proper screening programme at the general election? was in place, such deaths would be preventable?

Mr. Dooley: While it is unfortunate that certain Mr. Morrissey: I support calls for the Ta´naiste, jobs have not materialised because of world Deputy Harney, to come to the House and put economic conditions, it is important that the on record the job creation policies of this and the contribution of the Government to job creation previous Government. in the last seven years is put on the record. In the period before the election many jobs did Mr. Bannon: She is getting tired of her job. materialise and it is important that we make that clear. Mr. Morrissey: She could also put on record the dismal performance of the previous Fine Gael Mr. Finucane: Tell that to the people in and Labour Government—— Macroom. Mr. Finucane: The Senator should go down to Mr. Feighan: Along with many others, I have Macroom and ask the people there about that. taken great interest in the trials and tribulations of a former Member of this House and the Mr. Morrissey: ——when unemployment was manager and board of directors of Manchester at 19%. I look forward to the debate. United PLC. Mr. Finucane: The Deputy should check the An Cathaoirleach: That is not relevant to the votes in Longford and ask Deputy Sexton about Order of Business. Is the Senator seeking a that. She got her seat under false pretences. debate? An Cathaoirleach: Order, please. Senator Mr. Feighan: Yes. Finucane will have an opportunity to make a contribution later. Mr. Dardis: The Senator is kicking to touch. Mr. Minihan: Senator Finucane has made an Mr. Feighan: I want to put a question to the outrageous statement that a Deputy got a seat Minister for Finance who has great empathy with under false pretences. the Irish horse industry. I am not concerned with the tax free status in that regard because it has Mr. Finucane: She did. served this country and that industry well. However, the people at the upper end of the scale Mr. Minihan: That is an outrageous statement seem to have vast amounts of power and money and I ask that it be withdrawn. 787 Order of 18 February 2004. Business 788

An Cathaoirleach: Order, please. An Cathaoirleach: There are two Senators indicating that they wish to contribute and the Mr. Morrissey: I am delighted I raised this time is almost up. I did not see either of them subject because it seems to have raised some indicating until now. I call Senator Ulick Burke. hackles on my colleagues opposite. Mr. U. Burke: I endorse what Senators Ryan An Cathaoirleach: That rests the case. and McCarthy have requested, namely, that the Minister for Community, Rural and Gaeltacht Mr. Morrissey: I hope the Ta´naiste comes into Affairs, Deputy O´ Cuı´v, explain in the House the House and refutes—— why it is necessary for him to disregard an independent board established by the Oireachtas An Cathaoirleach: Has the Senator a question by way of legislation just two years ago and to on the Order of Business? show no confidence in its ability to allocate the funds of dormant accounts. I ask that he explain Mr. Morrissey: Yes. I ask the Leader to arrange why he has taken it upon himself, as is his pattern a debate quickly on this subject to ensure that the over the years, to have a slush fund at any cost scurrilous article—— and why he has failed to implement a scheme introduced in the last budget. He has even failed An Cathaoirleach: That point can be raised to provide an application form and other relevant during such a debate. details to the individuals who would benefit therefrom. He cannot say other than that he Mr. Morrissey: ——written in the Irish wants a slush fund. Examiner this morning can be rebutted by her. An Cathaoirleach: The Senator has—— An Cathaoirleach: We cannot discuss this matter now. Mr. U. Burke: He should be denied it.

Mr. Bannon: Free up the Progressive An Cathaoirleach: I call Senator John Phelan. Democrats today. Mr. J. Phelan: I indicated that I wanted to Mr. Finucane: That is an honest article written contribute at the very start of the Order of in the Irish Examiner today. Business.

An Cathaoirleach: I call on the Leader to reply An Cathaoirleach: I did not see the Senator. to the Order of Business. Mr. J. Phelan: The Cathaoirleach nodded at Ms Terry: I indicated that I wished to speak. me.

Mr. J. Phelan: The Cathaoirleach indicated An Cathaoirleach: I said I did not see him. that he would allow me to speak. Does he accept that?

An Cathaoirleach: I did not notice the Senators Mr. J. Phelan: I accept it. indicating. I call Senator Terry. Mr. Dardis: The Senator needs Senator Ms Terry: We spent considerable time in this Bannon’s more subtle approach. House last year debating the intoxicating liquor Bill and I am extremely concerned that a number Mr. J. Phelan: I just wanted to make the point. of its provisions are not being implemented. The I agree with what Senator Ulick Burke said and Minister should come to the House to review that echo what Senators Ryan and McCarthy said legislation and explain why certain pubs still have about the dormant accounts funds. I am glad the happy hours when this practice is outlawed by the issue was raised because it is very serious. The Bill. The promotion of alcohol in pubs by giving rules governing the board that was set up were free drinks to customers is also outlawed, but established last year and it now appears the from speaking to young people I am aware that Government wants to set these rules aside and type of promotion is still taking place. use the funds in any manner it sees fit. This is Another issue we should discuss is the drawing highly inappropriate and unacceptable. back on the late closing time of pubs on Thursday I join with my colleague, Senator Bannon, in nights. This provision has only been applied in requesting that the Ta´naiste come to the House pubs in rural areas; one can still drink as much as to discuss the job proposals she announced on the one wants and as late as one wants in this city. so-called “golden Thursday” before the last Therefore, the Bill has been an sham. Why general election. It is all well and good for introduce legislation if we are not going to Government speakers to stand up and try to enforce it? The Minister needs to outline why he defend her, but the fact of the matter is that 2,700 introduces these types of laws but will not jobs were promised on that day and none of them enforce them. has been delivered to date. 789 Order of 18 February 2004. Business 790

An Cathaoirleach: That will be a matter for the spoke about the pro-worker and pro-employer debate. Time has concluded. legislation introduced by the Minister for Finance in regard to Eircom workers. Mr. J. Phelan: We frequently give out about In reply to Senator Ryan, we are not Luddites, Fianna Fa´il breaking promises it made before the but we were in danger of being portrayed as such, last general election but—— like King Canute trying to push back the tide as it rolled in. Electronic voting will now be on a far An Cathaoirleach: The Leader to reply. firmer footing. On the dormant accounts, as I recall that legislation provided for the Mr. J. Phelan: ——we must remember that the establishment of an independent board to Progressive Democrats also made promises and disburse those moneys. I will find out the up-to- has broken them since then. date position. Senator Mooney talked about lo-call informer Ms O’Rourke: The first speaker was Senator telephone numbers nationwide and wondered if Brian Hayes, the Leader of the Opposition. He these would be abused. I have personal raised the matter of electronic voting. I would be reservations about using an informer number. the first to say that, combined with the work of However, some of the drivers who come up the committee and its members from this House, behind one on the road expect one to move over the Government has shown a consensus-like for them in a 60 mph zone, even when one is approach to the issue. This was evidenced in the driving at the speed limit. I do not see why one Da´il last night, in the proposal to set up the should if one is adhering to correct driving independent board and in other matters. standards. However, I appreciate this House, in a general Senator Finucane spoke about the suicide way, led the way and that it was Senator Brian incidence in Belfast and what appears to be a Hayes who raised the issue as one of major campaign by the INLA, with all those young importance last week. The issue was then raised people taking their own lives needlessly. in the Da´il, where it is the subject of this week’s Terrorism has developed in a dangerous manner Private Members’ motion. It shows that in a and this is a terrible reflection of that democracy both a Government and Opposition development. Senator Brady spoke about the are necessary. The matter is now proceeding in a review of the drugs strategy. We will have a consensus-like way and we should all be glad, in debate on that. It is necessary to take stock of the the cause of democracy, that this is happening. current situation to see what is happening. Senator Brian Hayes also spoke about the Senator Norris is in the arms of a princess in wonderful articles being written by the journalist The Irish Times this morning. She is not a real Carl O’Brien. We are trying to organise a debate princess. Princesses are named; just as the on what appears to be the lack of places for Senator is David and I am Mary, she is Princess disturbed children of a particular age who come whatever. before the courts. I hope we will have this debate the week after next, if not next week. Mr. Norris: That is my own name. On Senator O’Toole’s point, the Seanad Office and I spoke last week to the Minister for Justice, An Cathaoirleach: I do not think this is Equality and Law Reform, Deputy McDowell, relevant to the Order of Business. and to his private secretary because I said I would make a statement on the matter today. The Ms O’Rourke: He is in her arms on the front Minister expects to announce the terms of page of The Irish Times. reference and the names of the chairman and members of the review group on auctioneering Mr. Finucane: The Leader will have to qualify very shortly — I believe it will be within the next that. few days. The terms of reference are being finalised and the members of the group who were An Cathaoirleach: The Leader will reply to the chosen are being contacted. We will await Order of Business. developments. Ms O’Rourke: I am happy for the Senator who Mr. O’Toole: I thank the Leader. I am very also raised the matter of Professor O’Leary in appreciative. Trinity. This testing has not changed for 60 years since the 1940s. It is wonderful that Professor Ms O’Rourke: After we finished here on O’Leary did not seek to patent his discovery and Thursday, I inquired into the matter and the thereby make loads of money. This way services position is as I have outlined. will become more readily available. Well done Senator O’Toole also raised the issue of to him. electronic voting. I am glad the changes have On the Red Bull drink, I cannot say what is come about as I had reservations. I said this here happening. We will have to await developments. in the House, as did others. We live our lives by Senator Mansergh robustly rebuts the allegation voting and it is important that residues of fear about slush funds. Senator Bannon spoke about and uncertainty are wiped away. We are on the the hopes and aspirations of people in Longford. way towards achieving that. The Senator also The target of 1,600 jobs was to rely too much on 791 Equality Bill 2004: 18 February 2004. Committee Stage 792

[Ms O’Rourke.] The Minister for Finance, Deputy McCreevy, one particular industry. However, I thought the introduced legislation to deal with accounts that Ta´naiste did well this morning when she said had been dormant for 15 years or more and from her piece. which nobody was benefiting.

Mr. Dardis: She was good. Mr. Ryan: On the recommendation of a committee. Ms O’Rourke: Senator Maurice Hayes spoke about the vigilante-type terrorism that is Mr. B. Hayes: Following a recommendation developing in the North and how serious it is. from the Committee of Public Accounts. Senator McCarthy referred to the dormant funds Mr. Ryan: It was introduced as a result of the and “golden Thursday”. There is something DIRT inquiry. slightly old-fashioned about announcing jobs all the time. When the full complement of jobs is not Ms O’Rourke: We should be glad that delivered, one has to pull back from the original legislation is in place. We will invite the Minister announcement. However, the Ta´naiste has done to the House to discuss the matter. a great job on the employment front. Unemployment is currently running at under Order of Business agreed to. 5%, which is remarkable in a period of downturn. Senator McHugh, on jobs policy in the north west, referred to a lack of competitiveness. Equality Bill 2004: Committee Stage. Senator Minihan believes the Minister for Sections 1 and 2 agreed to. Communications, Marine and Natural Resources, Deputy Dermot Ahern, should be asked about an SECTION 3. amendment to the Post Office (Amendment) Act 1951. There is much more to that issue; the safety An Leas-Chathaoirleach: Amendments Nos. 1 side must also be considered. to 4, inclusive, are related and may be taken Senator Quinn talked about the delay in the together. Is that agreed? Agreed. driving test, which is now up to a year. This is wrong if the emphasis is to be kept on road safety. Government amendment No. 1: There is a strategy for ensuring tests are held at In page 6, paragraph (a), lines 11 to 28, to a faster pace, but this is not happening. The delete the definition of “contract of Minister of State at the Department of Transport, employment” and substitute: Deputy McDaid, is in charge of that particular “‘contract of employment’ means, subject to segment of transport activity, so we will invite subsection (3)— him to address the House on the issue. Senator Dooley would like to see a debate on the (a) a contract of service or Government’s jobs policy. That could well be of apprenticeship, or benefit. Senator Feighan is seeking a debate on (b) any other contract whereby—— the beneficial tax implications for those in the higher echelons of the racing industry. Senator (i) an individual agrees with another Henry is seeking a debate on the national person personally to execute any work screening strategy for women as regards cervical or service for that person, or cancer. Senator Morrissey is also seeking a debate (ii) an individual agrees with a person on jobs and has asked that the Tana´iste be invited carrying on the business of an to the House to discuss the matter. Senator Terry employment agency within the meaning referred to the non-implementation of aspects of of the Employment Agency Act 1971 to the intoxicating liquor Bill, in particular the do or perform personally any work or demise of the happy hour provision which leads service for another person (whether or to unfettered drinking. I was not aware that not the other person is a party to the provision was still in place. Perhaps there is a contract), phasing out time involved. whether the contract is express or implied Senator Ulick Burke asked that the Minister and, if express, whether oral or written;”. for Community, Rural and Gaeltacht Affairs, ´ Deputy O Cuı´v, be invited to the House to Minister of State at the Department of Justice, discuss the disbursement of funds by the Equality and Law Reform (Mr. O’Dea): independent board under the Dormant Funds Amendments Nos. 1 and 2 are technical Act. I will ask the Minister to come to the House amendments to section 3(a) of the Bill arising, to discuss that matter. Senator John Paul Phelan in the case of amendment No. 1, from a clerical also referred to dormant accounts, the Tana´iste drafting error in the alignment of text and the and the jobs situation. The Tana´iste has proved omission of the wording in the definition of very willing to come to this House. A debate on discrimination inserted into the Act of 1998 by jobs, leaving aside the issue raised today, would the Equal Status Act 2000. The first amendment be useful. realigns lines 26 to 28 to restore their application 793 Equality Bill 2004: 18 February 2004. Committee Stage 794 to both paragraphs (a) and (b) of the definition nothing magic about the family home or of “contract of employment”. individual privacy that keeps the taxman away The second amendment re-inserts the wording from such employment. Why should equality necessary to bring discrimination prohibited by legislation be different? the Equal Status Act within the remit of the I would like to know from where the idea to Equality Authority. The additional wording to exclude employment in the home arose. Who this definition as provided for in section 3 of the lobbied for this exclusion and on what grounds? Equality Bill will be retained. On the face of it, it appears to me to be daft. It excludes from the provisions of this important Mr. Quinn: My amendment follows on from an legislation some of the most vulnerable members issue I raised on Second Stage. The words I wish of society. I do not understand why we are doing to be removed from the definition of employee so. I commend my amendment to the Minister are “, but does not include a person employed in and to the House. I know he explained on Second another person’s home for the provision of Stage that this provision came about by way of personal services for persons residing in that European legislation and that it weakened rather home where the services affect the private or than strengthened the legislation. Perhaps the family life of those persons;”. The effect of this Minister has an explanation as to why this provision is to exclude from the protection of provision is being included. equality legislation, under the nine grounds of discrimination, all people employed in a person’s Mr. O’Dea: If Senator Quinn reads home. I was less than overwhelmed with the amendment No. 4, he will find that much of what Minister’s explanation for this extraordinary he said is now irrelevant. I signalled on Second provision when I raised the matter during the Stage my intention to bring forward this Second Stage debate. The Minister claimed this amendment to section 3(a) to ensure that the provision is a step forward rather than a step limited exclusion from what is defined as an backwards because it replaces an existing employee for the purposes of the Employment exclusion which was broader in scope. He was Equality Act is further confirmed. The definition not, however, able to dredge up an argument for of employee in section 2 of the 1998 Act is being inserting that exclusion in the first instance. amended in section 3(a) of this Bill to include Exclusions of that type do not make sense. members and former members of regulatory Perhaps there is a logical explanation for it, but bodies and to exclude people employed in we did not hear it. The Minister’s unease in this another person’s home to provide personal regard was demonstrated by his promise, by services to persons living in that home where they which I was heartened, to reconsider the section affect private or family life. This exclusion, which again. I believe I am pushing an open door with replaces more broadly based exclusions in the amendment No. 3. This is an important matter. Employment Equality Act, is intended to strike a A considerable number of people are balance between the equal right of a person to employed in people’s homes, most notably as private and family life and to equal treatment. nannies and au pairs. They are the very people For this reason, I propose to further qualify the likely to be discriminated against. Given that they exclusion to clarify that it applies only in so far come here from abroad, they are ripe to be as access to employment is concerned. Once in exploited and, the truth is, they often are. Most employment, this provision will not apply and any of the complaints of discrimination of which I am such person concerned, whether he be a gay aware relate to such people more than anyone butler or whatever, will be fully protected by the else. It is vital we do not draw a veil over this provisions of the Act. matter on some spurious ground of preserving Senator Quinn’s amendment proposes the de- family life or privacy. Employment is letion, from the definition of employee for the employment regardless of where it takes place. I purposes of the Act of 1998, of the exclusion in mentioned on Second Stage that my colleague, respect of persons employed in another person’s Senator Norris, would be upset to discover a home to provide personal services to persons liv- butler or valet working in a private home was ing in that home where they affect private or fam- discriminated against because he was gay. This ily life. In my amendment to this proviso, which legislation would not apply to such a person further qualifies the exclusion to clarify that it ap- because he is employed in a private home. plies only in so far as access to employment is Employees are entitled to the protection of this concerned, I have outlined the reasons that this legislation irrespective of where they work. The provision is appropriate. The directives recognise notion that employment law should stop at the and provide for the need to permit differences of front door of a private house is ridiculous. I do treatment based on a characteristic related to any not understand it. If that was the case, a similar of the discriminatory grounds where, by reason of argument could be made for exempting domestic the nature of the particular occupational activities employment from income tax or PRSI. We do not concerned or of the context in which they are car- do that and are right not to do so. There is ried on, such a characteristic constitutes a genuine 795 Equality Bill 2004: 18 February 2004. Committee Stage 796

[Mr. O’Dea.] Ms Tuffy: I move amendment No. 5: and determining occupational requirement, pro- In page 9, to delete lines 3 to 8 and substitute vided that the objective is legitimate and the re- the following: quirement is proportionate. General application of this principle is reflected in the new provisions “(c) it shall not be lawful for an employer proposed in respect of sections 25 and 37 of the to require an employee compulsorily to Employment Equality Act, provided under sec- retire from his or her employment on tions 16 and 25 of the Equality Bill. reaching a particular age if on reaching that The Employment Equality Act also provides age the employee is able and willing to for exclusions in respect of services of a personal continue in employment.” nature or employment for a private household. I referred to this matter on Second Stage. The Under section 26(2) of the Act, discrimination in purpose of the amendment is to do away with employment on the gender ground is permitted compulsory retirement ages and to stipulate that where it “consists of the performance of services it would be discriminatory to set down such ages of a personal nature, such as the care of an elderly in employment contracts in the future. or incapacitated person in that person’s home, This is a matter in respect of which action is where the sex of the employee constitutes a needed. I read an interesting article in a determining factor”. Section 37(5) provides a supplement of The Sunday Times which outlined more general exclusion in the case of the problems the UK will encounter in the future discriminatory grounds other than gender where in terms of demographic changes. The article in the employment is “for the purpose of a private question referred to Ireland which in terms of household”, which is very wide. The new population replacement, namely birth rate, is not provision in section 3 will replace these exclusions producing enough people to replace those who with a much more limited mechanism which will die. This is the general trend in Europe. The now be further qualified by the amendment I younger population of Ireland will decrease and have tabled. people will live longer because they pursue healthier lifestyles. Outside of that, there is a Mr. Quinn: I appreciate what the Minister of need to take action to retain older people in the State has said. When I tabled the amendment, I workforce. did not realise he intended to put down The article to which I refer mentioned that we amendment No. 4. He has taken a certain step in are wasting a resource by making people retire at the direction I have outlined and I understand the particular ages before they need or want to. Early logic of what he is doing. I will not pursue the retirement is available in Ireland. We have been matter. getting rid of people with great experience, and who have made a great contribution to the Amendment agreed to. economy, from the public service. We need to reverse that type of approach, both in terms of Government amendment No. 2: our demographic needs and also because of the In page 6, paragraph (a), line 32, after positive contribution those people make to the “discriminate” to insert “and, in Parts V and workforce and the economy. VI, includes prohibited conduct within the There may be moves along these lines at meaning of the Equal Status Act 2000, and European level but Ireland must show the lead in cognate words shall be construed accordingly”. respect of this matter, which is the reason I tabled an amendment. The amendment states that Amendment agreed to. employees should be able and willing to continue in employment. On Second Stage, I stated that it Amendment No. 3 not moved. would be important, in terms of bringing about this change, to allow for more flexible work Government amendment No. 4: practices and to encourage people to change careers. We do not want people to be forced to In page 6, paragraph (a), line 38, after “but” remain in jobs in which they are not happy. It is to insert “, so far as regards access to not just to older people that more flexible work employment,”. practices should apply; they should apply to Amendment agreed to. people with families and those in other circumstances. I accept that the change would Section 3, as amended, agreed to. have to be made in that context. The amendment is based on US anti-ageism SECTION 4. law. I do not know if the Minister of State will take it on board at this point but, for many An Leas-Chathaoirleach: Amendments Nos. 5 reasons, we must begin to take action in respect and 6 may be taken together by agreement. Is of this issue in the near future. If we do not take that agreed? Agreed. such action, we will only compound the problems 797 Equality Bill 2004: 18 February 2004. Committee Stage 798 that will arise in the future. We will waste a great racial grounds. In the 1990s, however, the word opportunity in terms of keeping people involved discrimination occurred most often in local in the workplace if we do not do something. newspapers in the context of discrimination on I have given further consideration to the the basis of age. Right around the United States amendment to the existing legislation which the of America in the early 1990s laws and rules were Bill will make. I refer here to section 4(c), which introduced at local level to prevent discrimination the Labour Party’s amendment would remove. I on the basis of age. We have not taken that first am not sure that paragraph (c) represents a step yet, although Senator Tuffy’s amendment is positive amendment and I would like the Minister an attempt to do so. of State to indicate how it improves the situation I spoke about the Minister of State making as regards people over 65. I thought initially that history. Provisions will be made in this area and it was a positive amendment but now I am not so it is a question now of whether the Minister of sure. I would like the Minister of State to State decides to take the first step. As I said on consider the Labour Party’s amendment as an Second Stage, while our population is getting alternative. Senator Quinn’s amendment No. 6 is steadily older, we show very few signs of having somewhat similar to ours and I welcome it. come to terms with the fact. One symptom of this failure is that there is no provision in this Bill or Ms Terry: I support Senator Tuffy’s the entire corpus of equality legislation which sets amendment. Ireland is behind other countries in out to attack the concept of compulsory terms of recognising the contribution older retirement. My amendment seeks to correct this people can make to society. As people are position. healthier, live longer and are fitter than ever, I must make my position clear on this matter. many are capable of working beyond the I do not wish to raise the age of retirement as retirement age. I recognise that the Minister for does the Society of Actuaries. While the Justice, Equality and Law Reform has made Government is poised to introduce a measure to moves in this regard in respect of gardaı´, the raise the retirement age in the public service, that retirement age relating to whom he is going to is a separate matter from the one I am raising. I extend. We need to take this matter on board and have no wish to force anybody to work beyond deal with it when opportunities present the accepted retirement age and my amendment themselves. This is certainly one such opportunity makes that quite clear in paragraph (c). It states: to make provision in this area. “Nothing in this subsection shall be construed as There has been a great deal of discussion about interfering with the right of an employee to retire the pension time bomb This amendment at a particular age, when such a right exists by represents one way of dealing with it, particularly way of contract, regulation or custom.” I am not for those people who wish to and are capable of talking about forcing anybody to work up to or working longer. We should not place obstacles in beyond a certain age. I am talking about their way or prohibit them from doing so. Having circumstances in which a person is willing and visited the United States on a number of able to continue to work, but is prevented from occasions in recent years, I was struck by the doing so by a compulsory retirement age. number of older people who work in many of People vary greatly in their wishes in this area shops, department stores and DIY outlets. That which is precisely why I am against compulsion trend, which is welcome, is also beginning to to regulate it. Some people cannot wait to move become apparent here. We should embrace it and on to a life of retirement while others are greatly allow people to work for as long as they wish or distressed at the thought of stopping work and are capable. argue that they are fully capable of continuing. Others would like to work part-time or in a Mr. Quinn: I support the comments of Senators reduced capacity. Senator Terry has spoken of Tuffy and Terry in respect of this amendment and the United States of America where it is so that in my name. As with amendment No. 3, interesting to see the number of people who have amendment No. 6 arises on foot of a concern I retired from one job and are happy to work part- raised on Second Stage. I hope the Minister of time in various others. State will make a little history by accepting it. I Those who wish to work in a reduced capacity read an article some years ago which asserted that find that taxation and pension arrangements the Americans had found that if one wished to make that more difficult to achieve than it should detect future trends, reading local newspapers be. Amendment No. 6 arises from my belief that was very effective. It was very interesting. The the time has come to outlaw the concept of article said that local newspapers are very much compulsory retirement at an arbitrary age. The stuck for space and have to find things to exclude. key word is “arbitrary” as that is where the If one looks up the word “discrimination” in the discrimination arises. No one would argue that newspapers of the 1950s, it will refer to older people are as physically capable as younger discrimination based on colour. In the 1960s, the people. No one would argue that some extremely word was used to refer to discrimination based on old people do not begin to lose some of their 799 Equality Bill 2004: 18 February 2004. Committee Stage 800

[Mr. Quinn.] and the Garda and excludes them from the scope mental faculties. For such people, an honourable of my proposals. In making these exclusions, I am retirement is an appropriate way in which to trying to side-step some obvious objections to my spend their last days. No one would dispute that amendment. As I said on Second Stage as well as and my amendment provides specifically for such at the outset of my remarks on these circumstances in paragraph (d). It states: amendments, the Minister of State has an opportunity to make a little history by accepting Nothing in this subsection shall be construed my proposals. I hope he takes it. as requiring any person to retain an individual in a position if the individual— Mr. Moylan: The acceptance of the (i) will not continue to undertake the amendments would mean that on reaching the duties attached to that position or will not age of retirement, the decision would be for the continue to accept the conditions under individual to make on whether he or she is willing which those duties are, or may be, required and able to continue in employment. It would be to be performed, or very difficult for employers if the decision was enshrined in legislation as one for the person in (ii) is no longer fully competent and employment to deem himself or herself willing available to undertake, and fully capable of and able to continue. Can the Minister of State undertaking, the duties attached to that explain the position? position, having regard to the conditions under which those duties are, or may be Mr. O’Dea: I am sympathetically disposed to required to be, performed. this amendment. The case has been very I am sorry to have gone through it in such detail, compellingly put by Senator Tuffy who was ably but I have taken some pains to make sure those supported by Senator Terry and Senator Quinn. areas are covered. To argue that at a particular Unfortunately, I cannot accept the amendment age, usually 65, all people without exception today for reasons I will explain. I would love to become incapable of further employment is avail of Senator Quinn’s invitation to make a simply wrong. More to the point, it is flagrant little history. I read in The Sunday Times the discrimination. As such, it should feature in article to which Senator Tuffy referred and found equality legislation which purports to remove all it excellent. I remember several years ago writing discrimination on any of the nine grounds. I am an article on the same subject for an even better not arguing that abolishing the concept of Sunday newspaper. compulsory retirement would achieve what is The position is that section 34(4) of the necessary to restructure our society to cope with Employment Equality Act 1998 provides that the significant challenge of an ageing population. “without prejudice to subsection (3), it shall not While making compulsory retirement illegal constitute discrimination on age grounds to fix would be a small dot on a very large canvas, it different ages for the retirement whether would be a start. Its importance would be in voluntarily or compulsorily of employees of any signalling our alertness to the issue and our class or description of employees”. While the concern for the interests of the older members of framework employment directive does not our population. require it, the question of removing this provision Making compulsory retirement illegal would was raised during consultations with the social have considerable benefits and almost no cost. At partners and relevant Departments. It was also a personal level, nobody would be forced to work raised in this House on Second Stage of this Bill. beyond whatever was the normal retirement age In the consultations, there was widespread in his or her particular occupation. At a business recognition that the labour force was becoming level, no one would be forced to continue to older and that the participation of older workers employ a person who was incapable of should be facilitated. Nevertheless, a consensus performing the essential functions of a particular emerged that the issue went beyond employment job. The EU directive is quite clear on this point equality policy and had broad socio-economic and the wording of my amendment underlines it. and industrial relations implications. To those who prefer to continue to work, this Compulsory retirement ages are a feature of change would be a great boon. In most cases, many types of employment in the public and there would be a clear benefit to the companies private sectors. They have been established over for which they work. To the wider economy, the time and, in many cases, after benefit of having someone continue to be 12 o’clock negotiation and collective economically active are too obvious to require bargaining. In the case of private spelling out. sector employment, the removal of existing There may be some exceptional employments agreements or arrangements on compulsory in which compulsory retirement is appropriate retirement ages is a matter firstly for discussion such as those in the Defence Forces and the among the social partners. We have agreed to Garda. Senator Terry has mentioned that there enter discussions with the social partners on that has been some movement in that direction. This very subject. In his recent Budget Statement, the is why the final paragraph of my amendment Minister for Finance announced that he would specifically identifies both the Defence Forces bring forward legislation to remove the 801 Equality Bill 2004: 18 February 2004. Committee Stage 802 compulsory retirement age for new entrants to older person can be just as capable of doing a the public service. I expect that legislation to be job as a younger person. If one considers judges, published on Friday. people are wiser and have more experience when I agree with Senator Tuffy’s point that they get older. That is a very valuable asset in paragraph (c) might be a little confusing. I have a workforce. read it a second or third time. Up to now, if an employer had different categories of employee, Mr. Quinn: I appreciate the response by the and offered those working in a machine shop, for Minister of State. I did not ask to him to make example, a contract taking them beyond the age history, as I know it is unlikely that such a big of 66, at which age all the other employees would step as this would take place today. In his retire, people working in other parts of the explanation, the Minister of State has drawn the enterprise could then have brought a case based attention of the House to the difficulties in the on the equality legislation to say they should be private and public sectors. I was impressed when offered a similar facility. The net effect of this he said that legislation will be introduced next paragraph is to prevent employees taking such Friday to the effect that new entrants in the action. It is to enable the employer to offer public service will not face an age limit. I ask him contracts beyond the age of 66 to the employees to explain that so I can understand exactly what believed, for example, to be the most useful to will happen this week, and what legislation if any the employer. is involved.

Ms Tuffy: I understand what the Minister of Mr. O’Dea: I thank the Senators for their State says. Obviously this would need to be constructive approach, and will convey the views thought through properly, and there are of Senator Tuffy to the Government. I realise the implications for industrial relations, and so on. I urgency of this matter, and that during the recent am concerned that if one waits for all that to period of very rapid economic growth, happen, it might be too late to do something bottlenecks developed in certain sectors of the about it. There should be some kind of timescale, labour market, as Senators are aware. These and deadlines. I understand that the EU is could have been alleviated in certain areas known considering a compulsory retirement age of 70, or to me, but for the compulsory retirement age. We perhaps changing it to 70. It was mentioned in an saw an example in the Department of Justice, article but I do not know the details. There Equality and Law Reform, where we lost some of should be no age limit. If change is to be made, the best detectives in Limerick at a time when we the age limit should go. I am concerned that we could ill afford to do so, because they were may let this slide. There are other matters to be obliged to retire at a certain age. The Minister is now taking action in this area. considered. The one thing that is still politically I realise the urgency, but in view of the correct in this country is age discrimination. The potential industrial relations implications and the step under consideration would be a major one in seismic change contemplated in the matter under getting rid of it, and would not involve costs. It discussion, which is engaging governments would be more likely to be of benefit than of throughout Europe, it would be unwise to draw hindrance to the economy and to employers. The up deadlines. The Government is aware of the Minister of State spoke of discussions, but the urgency of the situation, and I will convey the Government should give a deadline, and put views expressed by Senators today. matters in train now, allowing the various Regarding what Senator Quinn said, I do not negotiations in the meantime. want to make an announcement today on what We worry about such matters as what might will be contained in the legislation from the happen if people from the EU accession countries Department of Justice, Equality and Law come to Ireland. The article in The Sunday Times Reform, which will be published next Friday. The of which I spoke noted that those countries have Minister referred in his Budget Statement to the problems too, for example decreasing population. notion of allowing new entrants to the public We will face a problem in this area quite soon. If service a contractual right to work beyond the we do not act, we could face an economic crisis. traditional retirement age. The legislation will I do not wish to sound as if I am thinking only of reflect that promise and will deal with ancillary the economic aspects, as I am greatly opposed to matters. It will also give us a good indication age discrimination. where we are going in regard to the private There is also the matter regarding “willing and sector. I will say nothing further about that today. able”. That relates to people working at any stage I have not seen the legislation, which will be of their lives. We still retain the notion that published by Friday at the latest. “ability” might be slightly different when people Amendment, by leave, withdrawn. are older. We do not do so in this House, and we need to get rid of that notion. People can have Amendment No. 6 not moved. ability up to any age, or can lose it at an early age. There are many different circumstances. An Section 4 agreed to. 803 Equality Bill 2004: 18 February 2004. Committee Stage 804

NEW SECTION. the Act to accommodate the needs of people with disabilities in the workplace. Ms Terry: I move amendment No. 7: All good law seeks to address real issues in a In page 9, before section 5, to insert the way which is practicable and effective and following new section: without causing unnecessary difficulties. Section 35 of the 1998 Act recognises that there may be 5.—The Act of 1998 is amended by some cases in which a disabled employee would inserting the following section after section 7: be excluded from a particular work arrangement ‘Equal Pay for Equal Work if inflexible provisions are put in place. In such situations, which would arise where an 7A. The Minister is committed to accommodation of the person’s special needs ensuring the adherence to, the would not in itself be sufficient, different rates of application and enforcement of the pay may be permitted providing they match the principle of equal pay for equal work in output of the person employed. That is just in all circumstances.’ ”. respect of that particular section. I agree with This is meant to strengthen the section. As the what the Senator said but it would not be Minister of State knows, there is an established appropriate to include such a provision in what is principle of equal pay for equal work across the primary legislation. EU. There are no provisos involved. It is a very simple principle. An Leas-Chathaoirleach: Is the amendment I spoke on Second Stage about secretarial staff being pressed? members in Leinster House who sit beside one another and do not get equal pay for equal work. Ms Terry: I do not understand the Minister’s The Minister of State said then he would respond point that my amendment is aspirational. This to me. I do not know if he has had an opportunity amendment seeks to make a commitment. I do to look into this. The situation occurs in Leinster not want it to be aspirational. The amendment House and the Minister of Finance is responsible states that the Minister is “committed to ensuring for it. We should not have pay inequality in any . . .”. That is giving a commitment. It is not in any place where the same work is being done. I would way aspirational. I ask the Minister to consider like to see the Minister of State endorsing his this matter again before the Bill goes to the Da´il, commitment to equality. That is why I have where I hope he will accept it because it will be tabled the amendment. I am concerned about a tabled again at that time. number of sections in the Bill which I feel will allow for discrimination, particularly section 24, Amendment, by leave, withdrawn. to which I will return. The amendment is meant to endorse the Section 5 agreed to. Government’s commitment to equality. I accept the Minister of State may refer me to Sections 6 to 8, inclusive, agreed to. Government amendment No. 2 which allows for the insertion of “and, in Parts V and VI, includes prohibited conduct within the meaning of the SECTION 9. Equal Status Act 2000”. I wonder if the Minister of State will say that this covers the nine grounds Ms Tuffy: I move amendment No. 8: of discrimination. We should endorse and confirm equality in all spheres of life with every In page 12, line 12, after “on” to insert opportunity we get. “reasonable accommodation hereafter referred to as”. Mr. O’Dea: I cannot disagree with the logic of We want to insert the term “reasonable anything Senator Terry says. I agree with all her accommodation” in section 9 because that is the sentiments. However, I have been advised that term used in the explanatory memorandum but it because the proposed amendment is aspirational is also used in US law. We do not understand the in character, it would not be appropriate to include it in primary legislation. The Act of 1998 reason it cannot be used in the Bill. I would like is by definition an Equality Act. The provisions to hear the Minister’s comments on it. of the earlier gender equality legislation were enhanced and extended by the Act to eight Mr. O’Dea: The Senator has raised a fair point additional discriminatory grounds with the and I thank her for bringing it to our attention. specific provision to enshrine the entitlement to She has highlighted an omission and between equal remuneration across these grounds, and put now and the taking of the Bill in the Da´il I in place strong enforcement measures. The Act propose to either accept her amendment as it is recognises that by itself, non-discrimination may or consult with the Parliamentary Counsel to see not provide a sufficient safeguard to protect, for if we can put it somewhat more elegantly. I accept example, the right to equality of people with the amendment. disabilities. For this reason, specific requirements were imposed on employers under section 16 of Amendment agreed to. 805 Equality Bill 2004: 18 February 2004. Committee Stage 806

An Leas-Chathaoirleach: Amendments Nos. 9 insert completely new terminology. It would not and 10 are related and may be discussed together. be sustainable. Is that agreed? Agreed. Amendment, by leave, withdrawn. Ms Terry: I move amendment No. 9: In page 12, lines 21 and 22, to delete “impose Amendment No. 10 not moved. a disproportionate burden” and substitute “be grossly unreasonable”. Section 9 agreed to. On Second Stage I expressed concern about the NEW SECTION. language used in the Bill, which refers to burden, disruption and detriment. Those words should be Ms Terry: I move amendment No. 11: eliminated from our vocabulary when we speak In page 13, before section 10, to insert the about people with disabilities. An employer following new section: should not be allowed to evade his or her responsibilities to facilitate people with 10.—Section 16 of the Act of 1998 is disabilities merely because it is an inconvenience. amended by inserting the following The hurdle should be set higher than that and subsection: obligations of this nature should only be ‘(7) Nothing in this section shall operate avoidable in cases where to impose them would to discharge an employer from his or her be grossly unreasonable on the employer. I ask obligations to provide full and equal access the Minister to consider accepting this of employment to persons with amendment because otherwise we are leaving it disability.’”. open for employers to avoid their responsibilities. This amendment inserts a new sub-section in Mr. O’Dea: I have some sympathy with section 16 of the Employment Equality Act 1998. Senator Terry’s fears about the use of Section 9 of this Bill goes quite a distance in terminology like “unreasonable burden” in the relieving employers from their duty to adapt their context of disability but, unfortunately, I cannot premises for disabled people but the section goes accept the amendment for legal reasons. Before too far in doing so. My amendment seeks to the European directive was transposed into law, ensure that section 16 of the 1998 Act cannot be the Supreme Court decided that extra costs used to justify inaction on the part of the cannot be imposed on employers in respect of employer. It is essential that employers’ premises people with disabilities other than nominal costs. and other public premises should be adapted to Employers cannot be forced to accommodate facilitate people with disabilities. That is what we people because of their disability if it imposes a would expect these days and our legislation burden on them other than nominal cost. That should reflect that point. was the decision of the Supreme Court under Article 43 of the Constitution. Mr. O’Dea: I dislike refusing all the Senator’s The framework employment directive amendments but the difficulty with this overrode that decision and allowed a different amendment is essentially the same as the test, known as a disproportionate burden, which difficulty with the previous one. Section 16 of the gives some more leeway to employers and Employment Equality Act 1998 is a complex and improves the position of people with disabilities. specific provision which recognises that In addition to using this terminology, and we are additional provision is necessary to protect the taking it directly from the framework directive, rights of people with disabilities. Section 16, as the EU Commission went on to explain what it amended in this Bill, will require employers to means and set out the parameters of it, which we take appropriate measures in respect of access to repeat in the legislation. and advancement in employment, as well as in We have got cover, as it were, to override the respect of training. Unfortunately, that limitation put by the Supreme Court because of obligation, even under the amended legislation the EU framework employment directive. That today which flows from the EU framework being the case, we have to use the terminology in employment directive, is not open-ended. There the EU framework employment directive, which is a limit to it. It no longer becomes an obligation usefully sets out what it means, and we have put at the point at which it becomes an unreasonable that into the legislation as well. burden on them. The advice I have is that While I sympathise with what the Senator said inserting this sub-section, however desirable it about the terminology, and perhaps the people in might appear, would pose the same problem as Brussels did not consider that in the context of caused me not to accept the previous amendment. people with disabilities and the inappropriateness of the terminology, that is the terminology which Amendment, by leave, withdrawn. overrides the constitutional restraint put on us and because of that, I could not drop it now and Section 10 agreed to. 807 Equality Bill 2004: 18 February 2004. Committee Stage 808

Sections 11 to 15, inclusive, agreed to. which is based on a characteristic related to the gender ground”. The part I cannot understand is, “related to the gender ground”. If we were to say SECTION 16. something physical that referred to strength, Question proposed: “That section 16 stand part would that automatically mean gender because of the Bill.” men tend to be stronger than women? In all fairness, I do not have an objection to the issue. Ms Tuffy: The Labour Party opposes this It is just that writing it down in this way seems be section because it is a step backwards in terms of a backward move. It is not what the Minister is the legislation and is a huge inroad in terms of trying to achieve. It opens up an issue which it the current ban on sex discrimination in the was unnecessary to touch. It does not add workplace. anything to the section. In section 25 of the 1998 Act, gender is a legitimate requirement only in certain limited Mr. O’Dea: This section replaces section 25 of areas — physiology, entertainment, duties outside the 1998 Act. Section 25(1) refers to the State, personal services, separate sleeping discrimination against A in respect of facilities etc. Under the Bill any ground could employment in a particular post if the justify discrimination on gender grounds if it has discrimination results from preferring B on the an occupational requirement. It is just too broad. ground, that by reference to one or more of On the issue of entertainment, it is obvious why subsections (2) to (4) the sex of B amounts to an one would discriminate on grounds of gender in occupational qualification for the post in the area of acting. A person might choose a question. Subsection (2) states: female taxi driver. I can understand the reasons For the purposes of this section, the sex of B but on the broader issue of an occupational shall be taken to be an occupational requirement, I cannot think of any occupation qualification for a post where, on grounds of where it would be a requirement to be one sex or physiology (excluding physical strength or the other. I am sure somebody will give me an stamina) or on grounds of authenticity for the example. This is opening up an excuse to people purpose of entertainment, the nature of the to discriminate on grounds of gender in various post requires jobs and it will make the legislation much more difficult to implement. (a) a person of the same sex as B, and

Mr. O’Toole: Certainly on this issue, the Bill (b) would be materially different if filled does not flow easily. I can see the sense behind by a person of the same sex as A. what the Minister is trying to achieve, except for As I understand it, the new section is trying to the phrase, “A difference of treatment which is narrow that exclusion and allow the matter to be based on a characteristic related to the gender determined on a case by case basis. The ground,” which the Minister might explain. In my legislation is not saying a person can discriminate understanding of equality legislation, no one against taking on a person on the grounds that could argue if an employer took a decision on the they are of a particular sex but if an employer basis of: says to a person who applies for a job what they (a) the characteristic constitutes a genuine want done and that it does not particularly suit a and determining occupational requirement for person of his or her sex, the person can take a the post, and case against the employer. The employer will be able to plead these grounds by way of defence. (b) the objective is legitimate and the Whether the defence will stand up depends on requirement proportionate. the facts of each individual case. If that happens to exclude a woman, no one could argue that was discrimination on gender grounds. Section 16 of the Bill replaces in its entirety Like Senator Tuffy, I do not understand why it section 25 of the Employment Equality Act. In has to be written in this form as a gender issue. accordance with article 2.6 of the Gender Equal If someone took a case and said that because of Treatment in Employment Directive, member a particular gender he or she believed he or she states may provide that in relation to access to had been discriminated against and if the employment or to training leading to employer’s response was on the basis of employment, a difference in treatment based on paragraphs (a) and (b) I think the case would not a characteristic related to sex shall not constitute stand, and rightly so. Like Senator Tuffy I am not discrimination where, by reason of the nature of sure exactly what is being got at here. the particular occupational activities concerned, If there was a strong lifting or reaching or of the context in which they are carried out, requirement and somebody did not physically such a characteristic constitutes a genuine and measure up, whether a man or a woman, that determining occupational requirement provided could not be seen as constituting gender that the objective is legitimate and the discrimination. If I am missing something I requirement is proportionate. There are many suspect it is around “A difference of treatment hurdles to overcome there. 809 Equality Bill 2004: 18 February 2004. Committee Stage 810

The gender provisions of the Employment gives out the wrong impression; we are prepared Equality Act do not contain an exclusion of this to consider that. If some way can be found to put nature restricted to legitimate occupational the matter more gently while still meeting the activities, necessitating the employment of a requirements imposed on us by the EU, we would person of a particular sex. Section 16 of the Bill be happy to do that. However, I want to make remedies this by replicating article 26 of the clear that this is not carte blanche for employers directive. The blanket type exemptions provided to do what they like and to re-open another in section 25 of the 1998 Act are not permitted avenue of gender discrimination. That will not by the directive. The wording of the new section happen. Given the manner in which the equality 25 which is being inserted here follows exactly the tribunal deals with the cases brought before it wording of the directive. As suggested by Senator under the 1998 and 2000 Acts, I am certain it will O’Toole, we will have another look at the not happen. wording to see whether it can be done more elegantly to avoid any possible misinterpretation Question put and agreed to. that suggests we are going backwards. We are certainly moving forward. We are severely Sections 17 to 23, inclusive, agreed to. narrowing that exclusion in the 1998 Act by following exactly the words of the EU directive SECTION 24. which obliges us to do so. If we can meet the requirements of the EU directive by using more Ms Terry: I move amendment No. 12: acceptable language I am prepared to have a look In page 17, line 26, to delete “unlawful” and at it. substitute “lawful”. Ms Tuffy: I would be pleased if the Minister This is one of the most important sections of the would look at it again to see whether any Bill and the one with which I am most unhappy, improvement can be made, as suggested by in particular in regard to the word “unlawful” Senator O’Toole. I still do not see that it is being put into this part of the Bill, a point I narrower than the original section; I would have highlighted on Second Stage and earlier in the thought it was broader. I just think it might debate this morning. This openly permits the protect people to discriminate on grounds of payment of different rates of pay to disabled gender. Research has been carried out that shows persons, which is completely contrary to the men think differently from women in particular principle of equal pay for equal work and is a areas and that their brains operate in different regressive step. I am amazed the Minister of State ways. Somebody might use that as their is going along with it and ask him to reconsider. characteristic and that would be a totally The section lends statutory legitimacy to unjustified approach. There are different types of discrimination and represents a real avenue for research. It provides a very board area for people the exploitation of vulnerable people who, for to defend themselves. People may use that fear of losing their jobs, will be reluctant to section as an excuse and say they are covered by complain. the way it is worded. That is an issue that needs If we are serious about bringing people with to be looked at by the Minister. disabilities into the workplace, we must bring them in with open arms. They are members of Mr. O’Dea: I do not think it will be an alibi for the workforce as able-bodied people are and, employers to open up an avenue of therefore, must get equal pay. One may say that discrimination on gender grounds. If the in a day’s work they may not be able to achieve employer refuses a person a job, which he as much work as the able-bodied, in certain advertises and is available, because of their circumstances. However, while we say “able- gender and the person takes him to the equality bodied”, no two people can deliver the same tribunal the onus will be on the employer, amount of work in a day. While a more capable provided a prime facie case is made — because of person might be working beside a less capable another section in the Bill — to prove that the person, they would both be considered able- gender characteristic constitutes a genuine and bodied and are not called persons with determining occupational requirement of the post disabilities. To make a certain category for people which he is seeking to fill. He must also establish with disabilities and to allow employers to pay that his objective in filling that post with a person them less than the able-bodied is a regressive step of a certain sex is legitimate and that the and one we should avoid. requirement is proportionate. There is a number This is the most important section of the Bill. of hurdles there. The message should go out from If we get it wrong, we will throw away an here today to anybody who thinks this gives them opportunity to deal properly with equality. There an alibi or an excuse to refuse people right, left is no point paying lip service to equality if we are and centre because he does not like people of a to deal with the Bill in such fashion. particular gender, whether male or female, that is not the intention and that is not what is provided Ms Tuffy: I have similar concerns to Senator for in the section. As I said to Senator O’Toole, Terry in regard to this section. In the context of perhaps the wording is somewhat inelegant and the amendment, the Minister of State might 811 Equality Bill 2004: 18 February 2004. Committee Stage 812

[Ms Tuffy.] Nonetheless, in practical terms, it is impossible clarify how employees will fare in terms of the to have the concept of equal pay for equal work minimum wage. and then to have factors in work situations which go against that, even if this favours some Mr. O’Toole: While the amendment is well employees. The concept of equal pay for equal motivated and the manner in which Senator work means exactly that: if there is equal pay for Terry has phrased it is understandable, I have equal work, the balance lies with all employees considered this section deeply and have difficulty but, if there is not, once one side or another is in supporting the amendment. The issues favoured, any number of cases for demands for involved go far beyond what is contained in the equal pay for other people will be opened up, and amendment. One of the objectives of successive nobody will make concessions on grounds of Governments has been to bring the percentage of disability. It is a complex and complicated people with disabilities in the workplace up to 3% situation and one with which we must be careful. . The only areas where that has been achieved are in parts of the public service, which is a harsh Dr. Henry: While Senator O’Toole makes a reality that reflects the way the world is. In my good argument, I will support Senator Terry’s previous life, wearing my ICTU hat, I pushed and amendment because I have not found that tried through various national agreements to disabled people are not employed because they make the employment of people with disabilities do less work but because of residual resistance to easier. I met with great resistance from employing people with disabilities. There is huge employers, not in the sense of employers being resistance to employing such people, and Senator anti-people with disabilities but in terms of how O’Toole is right in that regard. I do not know they would operate in the workplace. that it would improve the situation by making it I ask Senator Terry to give consideration to this possible to employ those with disabilities at a point. While the section reflects the principle of lower rate of pay. Senator Terry gave the example of two able-bodied employees doing the equal pay for equal work, the amendment turns same sort of work, with one getting through 50% that on its head. The harsh reality of life means more work than the other in the time allowed. I that in a situation where two workers were being support the Senator’s amendment. paid the same amount and one was only doing three quarters of the work the other person was, Mr. O’Dea: On Senator Tuffy’s question on the notwithstanding that the person doing the three minimum pay legislation, an amendment to that quarters work was a person with disability, the effect will be discussed next. We will discuss the other person could put in a claim for equal pay. issue then. I do not know why the amendments In other words, the worker doing more work are not being taken together. could seek an additional 33% pay and would have I have listened carefully to what has been said a perfectly stateable case in that situation. and I agree with Senator O’Toole, who is speak- Therefore, much as I dislike the thinking behind ing from a lot of experience, although I am not the fact that employers could make such a rule, if saying that other Senators are not doing so. We we accept this amendment, we would effectively do not want to give the impression that the slam the door on employers appointing people section is being included to disadvantage people with disability. with disabilities or to allow them to be treated This is the reality I have experienced in less favourably. The section seeks to assist people negotiations. While employers have said they with disabilities to be given employment and to have nothing against people with disabilities and encourage employers to take them on. The effect that they would try to work them into their of Senator Terry’s proposal would be to remove systems, and some have, that has always been on what is intended as an enabling provision from the basis of equal pay for equal work, or some the Act of 1998 and replace it with an inflexible such arrangement. Despite my criticisms of and dogmatic approach. Disability is a discrimi- employers over the years, on this issue they tend natory ground. In addition, employers must ac- to give the balance towards people with commodate the needs of people with disabilities disabilities and to make adjustments for them in in the workplace. Furthermore, where an em- that sense. ployee would still be unable to undertake em- I completely understand Senator Terry’s point. ployment, the provision allows an arrangement I feel equally uncomfortable that the Bill states which takes account of these circumstances. that it is lawful to do this. However, I support the The amendment to section 35(1) of the Act of Bill in this regard because there is a better chance 1998, which I brought forward in the Bill, further of more people with disabilities being brought clarifies that a different rate of remuneration may into the workforce under this system than if it be paid only where it is determined on the were not in place. That is the reality I have faced grounds of a lesser output of work in a particular all along, although I cannot disagree with any of period. I take Senator Terry’s point that some the points in the argument made by Senator people are better workers than others. I imagine Terry, or the clear motivation that drives her to that when the Equality Authority considers such put down the amendment, with which I have cases, it will find there are many occupations sympathy and fully identify. where one could determine the output of the 813 Equality Bill 2004: 18 February 2004. Committee Stage 814 workforce as a whole but it would be virtually will avail of the opportunity to pay people with impossible to determine the output of particular disabilities less, which is what the Minister of employees, and obviously it will not apply in such State is providing for. As it is completely cases. In the case of certain occupations it is unacceptable, I ask him to take time to review perfectly easy to determine how much or how the issue and reconsider his position. little each person does. As Senator O’Toole said, and as I said on the Mr. O’Dea: The Government and I have previous occasion, this legislation seeks to reviewed carefully the matter and I have no encourage employers to take on people with notion of accepting the Senator’s amendment. disabilities. I want that message to go out loud The proposal is off the wall. We do not live in a and clear. We are not getting at people with perfect world. The Senator is saying this is the disabilities. We are not bringing in provisions equality we want. We will never have perfect which allow employers to treat them as second or equality, but I would prefer to have a type of third class citizens. We are including an enabling equality which encourages employers to bring in provision which will in some cases encourage more people with disabilities rather than give particular categories of employers to take on them the equality of getting social welfare people with disabilities. This is precisely why the benefits rather than gainful employment. It is provision is being included and why I cannot absolutely wrong to say the disability accept Senator Terry’s amendment, which will organisations as a whole oppose this measure. leave us with perfectly just law theoretically but, They do not. I am in constant consultation with in practical terms, will stop people with the disability organisations. We are preparing disabilities getting employment where they might disability legislation and were speaking with such otherwise get it. I know this from my personal organisations as recently as yesterday. The negotiations with some employers specifically on majority of the disability organisations to which I this issue and the wider disabilities legislation have spoken see the sense in the amendment, which is being introduced shortly. which they agree will help, as I do. This is why I propose to leave the section as it is. Ms Terry: I disagree with the Minister of State who is encouraging employers to get cheap Amendment, by leave, withdrawn. labour. If people with a disabilities are capable of doing the job, they should be paid for it. Section 12 agreed to.

Mr. O’Dea: They will be. NEW SECTION.

Ms Terry: No. The Minister is leaving it open Ms Terry: I move amendment No. 13: to employers to give people with disabilities a In page 17, before section 25, to insert the lower rate of pay. following new section: Mr. O’Dea: Only where they are measurably 25.—Section 35 of the Act of 1998 is doing less. amended by inserting the following new subsection: Ms Terry: It is unacceptable. Senator O’Toole ‘(7) A different rate of remuneration and others have said how few people with paid pursuant to subsection (1) shall not disabilities are in the workplace. be below the level of the National Minimum Wage in force at that time.’”. Mr. O’Dea: There would be fewer if I accepted the Senator’s amendment. Perhaps I was anticipating the Minister of State’s answer and expecting he would not accept my Ms Terry: There are far more able bodied previous amendment. That is why I tabled this people working who have a low rate of work and amendment and believe the two amendments get equal pay, and we can do nothing about that. should not be discussed together. I am giving him It is up to managers to ensure their workers another chance to recognise that people with produce as much as they can. To make this disabilities deserve a fair rate of pay. I ask him to distinction is totally unacceptable. Organisations accept the amendment, which would ensure that dealing with people with disabilities totally people with disabilities will get nothing less than oppose this measure. While I understand what the minimum wage. This is the bottom line in the Minister is saying, I totally object to it. It will regard to what is acceptable to them and which not help people with disabilities. If the Minister we have a duty to provide. I hope the Minister of of State is saying that employers will take on State will accept the amendment. more people with disabilities because they have to pay them less as they produce less, it is not the Mr. O’Toole: I support Senator Terry’s type of equality people with disabilities want. amendment because she is 100% correct. It would Senator Quinn is a very good employer of be disgraceful if the previous section were people with disabilities. I doubt very much if he abused. It could be abused, as Senator Terry has pays them less than other members of his staff. If pointed out, unless her current amendment is the legislation is passed, I doubt very much he accepted. The previous section and her current 815 Equality Bill 2004: 18 February 2004. Committee Stage 816

[Mr. O’Toole.] institutions that would be illegal anywhere else, it amendment will provide protection. No one could must be done solely on the religious ground. My accept from an employer anywhere a situation instinct is to get rid of section 37 of the previous whereby people with disabilities were paid less Act but there is no chance of that so this than the minimum wage. In light of all that has amendment tries to confine discrimination to the been said about the minimum wage in all sorts of religious ground. Last night “Prime Time” dealt arguments and discussions, I appeal to the with religion in education and this issue arose. Minister of State to accept the amendment. It is This amendment would ensure action would only an area in which Ireland has led the way in occur on the religious ground. It still protects the Europe. This would leave a gap which might be religious values and ethos and does not allow used or abused by unscrupulous people. anyone to undermine it. However, if the Minister of State accepts Senator The amendment rules out, however, any Terry’s amendment, he will get the best of both attempt to describe spurious activity as worlds. He will get the adjustment allowed under discrimination in favour of the ethos of the the previous section and he will get a protection institution. It tightens up the Bill. I would prefer which will be provided by the minimum wage. It to get rid of the section but we have decided that is a worthwhile and useful amendment which such discrimination should be allowed and I am gives added value to the legislation in terms of trying to keep it within the spirit of the Bill and the protection of people with disabilities. I appeal the previous Act by confining it to the religious to the Minister to accept Senator Terry’s ground. amendment. Dr. Henry: I support Senator O’Toole on this, Mr. O’Dea: The Government introduced the as I did when the Employment Equality Bill was concept of the minimum wage, therefore we do going through the Houses. We both argued it not wish to introduce legislation which would would be unconstitutional and when it was enable employers or anyone else to deviate from brought before the courts, it was found to be so, it. It was not intended that the provision would which pleased us, but not on the grounds we be used by employers to pay anyone less than the thought. That is what happens as a result of the minimum wage. separation of the Judiciary from the Executive. I thank Senator Terry for bringing this matter This is important because the issue applies to to our attention and I will consider the schools but it also could be applied to some amendment sympathetically between now and hospitals and we should make this as clear as Report Stage. We may come back with something possible. That is what the Minister of State the same or a slight variation but I accept the would want. principle behind the amendment.

Amendment, by leave, withdrawn. Mr. O’Dea: Section 37(1) was inserted to permit discrimination by religious bodies in SECTION 25. certain circumstances. These provisions are not Mr. O’Toole: I move amendment No. 14: affected by the provisions of the equality directives, the transposition of which is the In page 17, line 35, after “by” to insert purpose of this legislation. Article 4(1) of the “inserting in subsection (1)(b) after ‘it takes framework employment directive narrows the action’ the words ‘on the religion ground’ and”. provisions in section 37(1). Section 37 was the most divisive section of the I understand what Senator O’Toole is saying Employment Equality Act 1998. It was appalling but such discrimination is behaviour-related and that it allowed discrimination in certain instances, not ground-related. If we look back to the Em- after a high profile discussion in which the ployment Equality Act 1998, section 37(1)(b) Church of Ireland took a leading role, egged on states that a religious education or medical insti- by the Catholic Church. The Bill was introduced tution is protected if it discriminates by taking ac- by the rainbow Government and passed by the tion which is reasonably necessary to prevent an coalition Government following the election in employee or a prospective employee from un- 1997. Despite the objections we raised, section 37 dermining the religious ethos of the institution. of the original Bill was passed because it was felt Senator O’Toole wants to restrict action taken on that a person running a Catholic school was religious grounds only. I will have a look at his entitled to ensure that its Catholic ethos would amendment but I do not see how it adds anything be protected. The Equal Status Bill was being to the Bill. If a person gets rid of an employee or debated at the same time and there was much refuses someone a job because he proposes to use discussion of this in both cases. alcohol or cook pork when he is seeking employ- I lost the argument because of support for the ment in a Muslim establishment, the decision is ethos of religious institutions. I did not oppose taken to protect the religious ethos of the establ- that but thought it could be done better in a ishment and it is based on his conduct. If, as Sen- different way. I am now trying to ensure that if ator O’Toole suggests, this is included in the sec- legal discrimination takes place in religious tion as discrimination on the religious grounds, I 817 Equality Bill 2004: 18 February 2004. Committee Stage 818 do not see how it adds to the Bill. If he can ex- employee relations and dismissals of all sorts. plain that, I will consider his amendment. Such legislation exists and this proposal would not impact in any way on it. Some people will Mr. O’Toole: I understand the Minister of pick the easiest way to do something and that is State’s point and I agree with much of what he wrong; they should be confined to acting in what said. I disagree fundamentally with this section is the correct way under the law. but I must accept the democratic decision of the people. If a teacher in a school of particular Mr. O’Dea: In regard to the example the religion tries to inculcate the students with a Senator gave about a teacher having a few scoops different set of religious offences, that is utterly privately, I cannot envisage how that would unacceptable and should be a sackable offence, undermine the religious ethos of the institution in a view I have always held because it is on the which he or she is working provided he or she religious ground. does it privately in his or her own time. I will use the Minister of State’s example. If a teacher in a school with an anti-alcohol ethos was Mr. O’Toole: That is exactly my point. I agree discovered to have had a glass of wine at with the Minister of State. Christmas in the comfort of his own home, without trying to undermine any ethos, and some Mr. O’Dea: I do not believe it would. The fundamentalist felt he should not have done that authority concerned would not be justified in and sacked him, it would be completely wrong. sacking a teacher in those circumstances because Extrapolating from that, there could be other section 37(1)(b) specifically states that the action reasons. If section 37 is used, it should be only on which is protected must be reasonably necessary grounds of religion. At present, the Bill does not to prevent an employee from undermining the prevent a person from sacking an employee for religious ethos of the institution. As the saying other, non-religious grounds if they are protecting goes, “saying it don’t make it so”. the ethos of the school. I understand what the Senator is getting at. He The Minister of State mentioned behaviour. I is trying to provide for a situation where people accept it can be vague and people can interpret can only use such a defence in circumstances it differently, but it is also the case that in this where the conduct legitimately undermines the legislation, the Equal Status Act and religious ethos of the institution. In other words, 1 o’clock the Education Act there is no he does not want people to be able to say that definition of “ethos”. I made the case whatever about the religious ethos of the at the time that if there were 4,000 Catholic institution, we are Muslims, this guy is known to educational institutions in this State, effectively, be a raving drunkard in his own private life and we could have some 4,000 of the equivalent of the that is a good reason for getting rid of him. I plural of ethos — my Greek is weak. This would understand what the Senator is trying to do; he is be defined simply by the boards of management trying to tighten up the legislation. of the schools. I always felt that was wrong but With due respect to the wording of the that was another argument I lost here. I have to amendment he put forward, if I insert in accept that but I am simply referring to it. If subsection (1)(b) what is proposed, namely, it behaviour and ethos are vaguely defined, we takes action on the religion ground which is need to tighten up the Bill to some extent. I necessary to prevent an employee from accept the religion argument, to which I never undermining the religious ethos of the institution, objected. Parents have an entitlement to decide I do not believe that wording would improve it. what type of school their children attend, whether However, I take the point the Senator is making. it is denominational, non-denominational, multi- We do not want the legislation drafted in such a denominational or inter-denominational or way that would allow people to come up with whatever. That has to be respected by employees facile excuses. I do not believe the legislation is and it would be unacceptable for any employee, so drafted. It has stood the test of time since 1998 be he or she a teacher or any other employee, to — we are talking about legislation that has been undermine it. in operation for six years. I will give some thought This proposal does not take from what the to what the Senator said. I will discuss it with my Minister of State is trying to achieve. I will be officials and if we are of the view that the section pleased if he will examine it if he is unsure about needs to be tightened up, we will be willing to it. I do not want to insert any provision in the Bill consider doing so. about which he is unsure. I know what it is like to be on the other side of the interpretation of Mr. O’Toole: I cannot ask for any more from legislation when defending people or boards. We the Minister of State. I wish to draw out the should get the Bill right. The inclusion of this example a little further because I believe the amendment will mean that if employers act under Minister of State is correct. We used the example the terms of section 37 of the 1998 Act, it should of a person drinking in his or her private time and be on the religion ground. That does not stop the example could also be a teacher having a them from acting on other grounds for various child outside marriage. What the Minister of other reasons. There is a raft of legislation State said in response is the key to my motivation dealing with industrial relations, employer and for tabling this amendment. He said it could be 819 Equality Bill 2004: 18 February 2004. Committee Stage 820

[Mr. O’Toole.] which the Minister of State might have more considered on the religion ground, on which I difficulty accepting. I would like to hear his views agree with him. However, there is a problem in on them. that because if we do not insert on the religion ground, we are left with the possibility of the Mr. O’Dea: In regard to amendment No. 16, taking of an action which is considered we are transposing the terminology directly from reasonably necessary. the directive. Therefore, I do not consider there I could mount a telling and impactful argument is any reason to accept that amendment. We have about the evils of drink or sex outside marriage been asked to transpose the directive, and we can and line up all the elders of a fundamental go further, but, in reality, I do not believe it is religion I am pursuing and say that the thoughts going any further. of having anybody who did this or that anywhere This section amends section 37 of the 1998 Act near our institution would completely undermine to take account of the framework directive in its ethos. Those elders could mount a strong respect of permitted differences of treatment by argument and it would not be based on the reference to a characteristic which constitutes a religion ground, if the Minister of State knows genuine and determining occupational what I mean. It would be a case of trying to use requirement and where the objective is legitimate the burden of proof of reasonably necessary. and the requirement proportionate. Amendment Those concerned could well argue that such No. 15 would depart from the provisions of the action was reasonably necessary if emphasis is not directive by excluding the grounds listed by the put on the religion ground. I accept that the Senator from the scope of the provision. The Minister of State and his officials have given this Senator may note that the gender ground is fair thought and that is all I ask. I am not trying already excluded under section 16. If we are to to create a problem or to pull a fast one — either exclude all these other grounds, what would the it works or it does not. We should simply insert section mean? We have already taken out the that provision. The Minister of State might gender ground and if we were to take out all the reconsider it on Report Stage and I will go along other grounds, the section would be rendered with whatever he decides at that point. meaningless.

Amendment, by leave, withdrawn. Mr. O’Toole: I am trying to make sure that the section fully reflects what is in the directive. I An Cathaoirleach: Amendment No. 16 is listened to what the Minister of State said and I related to amendment No. 15 and they may be will go back and read it. I thought my discussed together by agreement. amendments more fully and comprehensively reflected what is in the directive. I accept what he Mr. O’Toole: I move amendment No. 15: said regarding the additional two qualifying words in the second amendment, that because In page 17, line 39, to delete “ground” and they are not in the directive they may not be substitute “marital status, family status, dis- necessary. That is an argument for and against ability, sexual orientation, age or membership that; it depends on how we do this. These of the traveller community grounds”. amendments may not deal with what is the most This amendment seeks to make doubly sure that important issue in the world, but I believe my we do not simply use the gender ground in regard amendment dealing with the grounds excluded is to such circumstances. I will deal with necessary to reflect what is in the directive. Is the amendment No. 16 first. It is a belt and braces Minister of State saying that the directive is fully type amendment. It proposes inserting the words reflected in the current wording of the section? “legitimate” and “justified” to provide that the That is what I would like to hear. characteristic referred to constitutes a genuine, legitimate, justified and determining occupational Mr. O’Dea: It is, both from the point of view requirement. It seeks to raise the burden of proof of what is allowed and what is excluded. to make doubly sure in regard to the provision. In terms of the characteristic related to the An Cathaoirleach: Are the amendments being discriminatory grounds, that should extend to all pressed? the grounds, not only the gender ground. There is no major case to provide that it should be simply Mr. O’Toole: I will not press them on that restricted to the gender ground. I ask the Minister basis. of State to consider that point. The other amendment simply provides for Amendment, by leave, withdrawn. inserting additional words to give extra comfort on the issue. I do not believe it should cause the Amendment No. 16 not moved. Minister of State too much difficulty. He might argue that it is tautologist and repetitive but the Section 25 agreed to. additional words proposed mean something NEW SECTIONS. different — they are quite simple words. The first of the two amendments is the fundamental one, Government amendment No. 17: 821 Equality Bill 2004: 18 February 2004. Committee Stage 822

In page 18, before section 26, to insert the “relationship” includes rights and following new section: privileges arising from the relationship.’.’ 26.—Section 44 (ordinary members of Authority) Act of 1998 is amended by Mr. O’Dea: This amendment inserts additional substituting the following subsection for provisions in section 67 of the Act of 1998 to subsection (4): further clarify matters relating to the Equality ‘(4) Each ordinary member of the Authority’s role in providing assistance to Authority shall be paid, out of moneys persons in taking proceedings under the Act. The provided by the Oireachtas, such principal new provision is contained in the new remuneration (if any) and allowances and subsection (5). This makes explicit that the expenses as the Minister, with the consent relationship between a solicitor employed by the of the Minister for Finance, may authority or a barrister retained by such a sanction.’” solicitor and a person requesting assistance under this section is the normal solicitor-client or barrister-client relationship. This is a necessary Mr. O’Dea: This amendment to section 44 of safeguard and will remove any doubt about issues the Act of 1998 is proposed to enable the of confidentiality etc. Minister for Justice, Equality and Law Reform, The provision is balanced in subsection (6) with with the consent of the Minister for Finance, to the clarification that the normal rights and remunerate the board of the Equality Authority. responsibilities integral to the relationship In recent years, social-type boards such as the between the authority and the solicitors authority have been brought within the sphere of employed by it is not prejudiced. Subsection (7) such payments, and I propose to include the makes a further clarification to the section to Equality Authority in this category. remove any doubt as to how certain provisions of the Solicitors Act 1954 are to be applied in Amendment agreed to. respect of solicitors employed by the authority and providing assistance to persons under this Government amendment No. 18: section. Section 59 of the Solicitors Act prohibits a solicitor acting as an agent for an unqualified In page 18, before section 26, to insert the person, while section 64 makes a similar following new section: prohibition in the case of bodies corporate. 27.—Section 67 (assistance by Authority in Subsection (8) defines key terms used in these connection with certain references) is provisions. In a nutshell, there is provision amended by adding the following whereby the authority can get a solicitor or subsections: barrister to represent somebody in a case in those circumstances. The relationship between the ‘(5) The relationship between a solicitor client being helped and the barrister or solicitor employed by the Authority or any employed by the authority will be the normal barrister retained by him or her and a solicitor-client relationship. All the rules that person requesting assistance under this apply to the average solicitor-client relationship section shall be the same as the will apply to that relationship. relationship between a solicitor or barrister and a client who is not such a Amendment agreed to. person. (6) Subsection (5) is without prejudice Ms Tuffy: I move amendment No. 19: to the rights and responsibilities of the In page 18, before section 26, to insert the Authority and the obligations arising out following new section: of the relationship between the Authority and the solicitors employed by it. 26.—Section 69 of the Act of 1998 is amended by the addition of the following (7) For the avoidance of doubt, it is subsection after subsection (6)— declared that sections 59 (prohibition of solicitor acting as agent for unqualified ‘(6A) Where an employer fails to have person) and 64 (bodies corporate) of the an equality action plan (irrespective of Solicitors Act 1954 do not apply in relation whether he or she had been required to the provision by a solicitor employed by pursuant to this section to have such a plan) it shall be presumed until the the Authority of assistance under this contrary is shown in any proceedings section. under this Act that the employer has failed (8) In this section— to take such steps as are reasonable to protect the employees of such an employer “person requesting assistance” from discrimination.”’. includes a person to whom assistance is being, or has been, provided under This amendment requires the employer to take this section; positive action to ensure there is no discrimi- 823 Equality Bill 2004: 18 February 2004. Committee Stage 824

[Ms Tuffy.] appear to have such an effect, unfortunately. It nation against an employee on particular would undercut any legitimate defence an grounds. On Second Stage, I mentioned that we employer might have in answering employment need to consider protecting employees against ra- discrimination charges before the Equality cism in the workplace, particularly because we Tribunal. are employing more non-nationals under differ- ent schemes and by way of work permits, for ex- An Cathaoirleach: Is the amendment being ample. These employees need to be protected, pressed? possibly in the same way in which we have tried to protect employees or potential employees with Ms Tuffy: I will not press it but I would like disabilities. The amendment obviously applies to the Minister to consider the point I have raised grounds other than racism. in order that we might have some way of I am interested in hearing the Minister of encouraging employers to have such measures in State’s response. I am tabling this amendment as place to a greater degree than they are being a suggestion and I am not really sure it would be encouraged to do so at present. the correct way to go forward. I realise it might cause problems or put a lot of pressure on the Amendment, by leave, withdrawn. employer. However, if as a solicitor, I were Section 26 agreed to. representing any side of a case involving somebody who was the victim of racism in the SECTION 27. workplace, I would always inquire into the code of practice in the place of work and into what Government amendment No. 20: steps were taken to avoid racism therein. This arises in some cases, such as the one involving In page 19, paragraph (d), to delete lines 35 CIE, and therefore there is a need to ensure to 38 and substitute: racism and other kinds of discrimination do not “(3) The Director may from time to time occur. Everybody should know where he stands issue guidelines or guidance notes governing and there should be no grey area into which the carrying out of their duties by equality people could slip. This is the thinking behind my officers and equality mediation officers.”. amendment. I mentioned on Second Stage that the Equality Mr. O’Dea: This is a minor technical Authority stated complaints of racism are the amendment to the new provision in section 27(d) fourth most frequent type of complaint it of the Bill, inserting a new section 75(3). The receives. Maybe more proactive provision needs intention in this provision is to enable the director to be included in the legislation, similar to that of the Equality Tribunal to issue appropriate dealing with disability. This might be one way of guidelines or guidance notes to ensure that doing it or maybe there are other ways—Idonot redress in equality cases taken before it is met know. I would like to hear the Minster of State’s with an efficient and fair response. It is response to this. Has he any plans in this regard? considered that the provision, as drafted, is overly broad and more akin to the role of the Equality Mr. O’Dea: The purpose of Part VI of the Em- Authority, and it should be more clearly focused ployment Equality Act 1998 is to provide guid- to apply to the areas of responsibility dealt with ance to employers, particularly large enterprises, by equality officers and equality mediation in taking a proactive approach to implementing officers. equality legislation in the workplace. Section 69 gives the Equality Authority particular powers, Amendment agreed to. at its discretion, to invite a particular business or business group or sector to carry out an equality Question proposed: “That section 27, as review or to prepare and implement an equality amended, stand part of the Bill.” action plan. The Equality Authority may, if it thinks it Mr. P. Burke: The director is given certain appropriate, carry out an equality review and responsibilities regarding the recruitment of some prepare an equality action plan regarding large members of staff and promotions. In view of the employers — defined as those who employ more fact that the Government is setting up the new than 50 employees — a particular business or public service appointments commission, the Bill sector. The authority has specific enforcement is giving considerable power to the director. powers with respect to such equality reviews and County managers set up interview boards them- action plans. The directives do not require the selves as part of the drive for better local govern- imposition of a duty on employers to prepare ment and this caused deep divisions within local equality action plans. There is no intention in authorities. Therefore, the powers concerning the section 69 to coerce all employers to prepare promotion and recruitment of staff should be equality action plans. This amendment would given, in this case, to the public service appoint- 825 Equality Bill 2004: 18 February 2004. Committee Stage 826 ments commission. The Minister of State should Ms Tuffy: I move amendment No. 22: consider this in the Bill, especially because of In page 20, between lines 18 and 19, to insert what happened in the local authorities. the following new paragraph: Mr. O’Dea: It was thought, when the legislation “(b) by the insertion in subsection (3) after was being drafted and this office was being ‘Equal Treatment Directive’ of ‘or any other created, that it was better to give the director the Directive referred to in the Title to the power to recruit the staff in view of the fact that Equality Act 2004,’”. he or she would be best qualified to decide the calibre of employee required. It is a highly The background to this Labour Party amendment specific area. However, whatever staff are is that EU law provides that where there is a normally recruited by the director will be subject breach of a directive, there must be a right to sue to the consent of the Minister for Finance. I in the courts. That refers to the European Court understand what the Senator is saying, however, of Justice ruling in the Marshall v. Southampton and I propose to discuss that with the Minster for and South West Hampshire Area Health Finance. I cannot say if there will be any change Authority “No. 2” case. Under the 1998 Act, this at this stage, but I will convey the Senator’s right was confined to gender cases as those alone concerns to the Minister and to my colleague in were covered by the directive. As EU law has the Department of Justice, Equality and Law extended, the 1998 Act should be amended Reform. accordingly. If it were not, the Bill could be struck down as being contrary to EU law. Mr. P. Burke: I thank the Minister of State. This could be embarrassing in the future if an Mr. O’Dea: I do not think so. Under section equality matter were raised. 77(3) of the Employment Equality Act 1998 the option for a claimant in a general discrimination Question put and agreed to. case to refer it to the Circuit Court is available, in order to allow access to an unlimited award of Section 28 agreed to. compensation. This is a requirement of the gender equal treatment directive, following the SECTION 29. 1993 judgment of the European Court of Justice in the Marshall case. There is no requirement on Ms Tuffy: I move amendment No. 21: non-gender grounds in either the framework In page 20, between lines 18 and 19, to insert employment directive or the race directive for the following new paragraph: access to unlimited awards. This amendment would allow access to the Circuit Court for all “(a) by the definition of subsection (2),”. employment discrimination cases. In the event In this amendment we are deleting the provision that the EU Council of Ministers had intended to that a discriminatory dismissal goes to the Labour make available equal levels of redress between Court and not the Equality Tribunal. There is a gender and non-gender grounds, it was open to ground swell of opinion that the tribunal should the Council to make such provisions in the have jurisdiction. I would like to hear the directives. However, we are certain the Council Minister of State’s comments on that. did not provide for this. The directives provide that sanctions must be effective, proportionate Mr. O’Dea: As Senator Tuffy has said, the and dissuasive. I am satisfied that the existing amendment in her name removes jurisdiction levels of award open to the Equality Tribunal and from discriminatory dismissal cases from the the Labour Court in gender and non-gender cases Labour Court. I deduce that she wants it to are sufficiently high to deter unscrupulous remain with the Equality Tribunal. The redress employers and to fully compensate employees provided for in section 77 of the Employment who suffer the effects of discrimination in the Equality Act 1998 places such jurisdiction with workplace. the Labour Court for the good reason that this I understand what Senator Tuffy is saying. It body has extensive statutory powers and long looks somewhat lopsided that there is one rule experience in dealing with unfair dismissal cases. for gender cases and a different one for non- In terms of equality legislation, this jurisdiction gender cases. It may well be that a directive in the dates back to the Anti-Discrimination (Pay) Act future may force us to make similar provisions for 1974 and the Employment Equality Act 1977. It both. If that happens we will but, as we currently is accepted by both sides of the social partnership understand European law, there is no such that the Labour Court remains the proper forum requirement. for resolutions of cases of alleged unfair dismissal, on whatever ground. Amendment, by leave, withdrawn.

Amendment, by leave, withdrawn. Sections 29 to 42, inclusive, agreed to. 827 Equality Bill 2004: 18 February 2004. Committee Stage 828

NEW SECTION. correspond with any of the institutions in any of the treaty languages; and a declaration adopted Ms Terry: I move amendment No. 23: in conjunction with the Treaty of Nice 2001 calls In page 28, before section 43, to insert the for a response to any such correspondence to be following new section: made within a reasonable period. The Irish representatives at the European Con- “43—The Act of 2000 is amended by vention which negotiated a draft constitutional inserting the following section after section 2: treaty ensured that these rights will be main- ‘Irish Language. tained. Additionally, at our request, an Irish lang- uage version of the draft constitutional treaty 2A. The Minister shall do all that is agreed at the European Convention was also pre- reasonable possible to ensure that pared. Lingua, the Union’s programme for the during the Irish Presidency of the promotion of language teaching and learning, re- European Union, the Irish Language is cognises the Irish language for its projects. Most recognised as an official language of the recently the Government has taken steps to en- European Union.’ ” hance the standing of the Irish language in the This amendment arises from concern for the context of the reform of the staff regulations for equality of the Irish language. I am critical of the EU officials. The Government remains commit- failure of the Taoiseach and the Minister for ted to its policy of monitoring developments with Community, Rural and Gaeltacht Affairs, Deputy a view to availing itself of any appropriate oppor- O´ Cuı´v, to have Irish recognised as an official tunity that may arise to enhance the status of language within the EU. It will be a long time Irish as regards the EU. Discussions between the before we can expect such an opportunity to Departments of Foreign Affairs and Community, present itself again. Rural and Gaeltacht Affairs to analyse the op- tions available to us are ongoing. A working As I said on Second Stage, our MEPs in group has been established to analyse what can Europe are currently not in a position to stand up be achieved on this issue and the possibilities that and speak in Irish if they so wish. This denies exist to make progress. those MEPs who wish to and are capable of speaking in Irish a great opportunity to do so. It I understand the first meeting of the working is an equality issue for many people in Ireland group has already taken place. I hope these dis- who see and use Irish as their first language. For cussions will identify additional opportunities to those of us who would aspire to have it officially enhance the status of the Irish language in the recognised, it is an equality issue. With the entry EU within a reasonable and practicable timef- of the accession states to the EU there will be a rame. With the working group already in place, it further eight or nine languages. It is a shame that would not be appropriate to accept the amend- Irish is not formally recognised as an official EU ment. My advice is that the proposed amendment language. I am asking the Minister of State to is not appropriate to this Bill nor is the Minister accept this amendment, if he can, and to do for Justice, Equality and Law Reform the rel- everything possible during the EU Presidency to evant Minister in this regard. For those reasons, ensure that Irish is recognised as an official and not because I disagree with any of the senti- language within the EU. ments expressed, I am unable to accept the amendment. Mr. O’Dea: The two official languages of the Ms Terry: I thank the Minister of State for his State are set down in Article 8 of the Constitution response. Why should Ireland be the only sover- as Irish and English. The Constitutional Review eign State in the EU not to have its first language Group, which reported in 1996 did not advocate recognised? That is the basis of my argument. the addition of any further languages. Irish has The Minister of State said this is not the appropri- the status of a treaty language in the European ate legislation in which to include this provision. Union. This derives from the fact that the treaties I think it is as this is an equality issue. Many peo- are in Irish. In the treaties, Irish is listed as one ple who believe strongly in their first language of the languages in which the text is authentic. feel it should be given the recognition it deserves. This means that each successive treaty is I accept the Minister’s response at this stage and published in Irish as well as in the 11 other will withdraw the amendment although I expect languages — with the text in Irish being equally it will arise again in the other House. authentic and having equal status to those in all the other official languages. Amendment, by leave, withdrawn. It has been the Government’s consistent approach to take any appropriate opportunity to Section 43 agreed to. enhance the standing of Irish in the EU. It has done so in several respects, including the SECTION 44. following: The Treaty of Amsterdam 1996 confirmed the right of citizens of the Union to Ms Tuffy: I move amendment No. 24: 829 Equality Bill 2004: 18 February 2004. Committee Stage 830

In page 29, lines 10 and 11, to delete “(other Act the letting of accommodation which is not than a separate and self-contained part)”. part of the owner’s home. This amendment is not consistent with the This amendment seeks the deletion of the words “other than a separate and self-contained part”. I Race Directive and, for that reason, I am unable wonder if that provision has been thought to accept it. through. What does it mean? Does it, for exam- ple, relate to a granny flat or to a granny flat with Ms Tuffy: I am not happy with the Minister of a separate entrance? An extension to one’s home State’s response. He gave the example of bed and becomes part of the home. I do not understand breakfast accommodation. Such a service could the reason for this provision. Perhaps, it is politi- be provided in a house that is not self-contained. cal correctness gone mad. The Minister is being I am aware of situations where bed and breakfast too particular in this regard. This provision could is provided in a room of a house with the person lead to all sorts of problems. sharing the bathroom with others. Such accom- If accommodation affects the person in his or modation would not be covered by this provision. her home, it does not matter whether it is self- Does this provision mean that an au pair living in contained. What is a self-contained part of the a granny flat could not be discriminated against House? Is it a granny flat, an extension or one’s even though her accommodation affects the fam- shed? What is the purpose of this provision? ily life of the person residing in the home? This legislation makes life difficult for those providing Mr. O’Dea: The purpose of the provision is to accommodation in extra space in their homes. ensure the exclusion is as narrow as possible. Ac- This section is problematic. Perhaps the Minister ceptance of the amendment would exclude from of State could rethink it. the provisions of the Equal Status Act 2000 the Accommodation does not necessarily have to letting of separate or self-contained accommo- be provided in a separate and self-contained part dation in the owner’s home such as bed and of the House. A family with a granny flat or ex- breakfast accommodation or a self-contained tension with a separate entrance, as opposed to a apartment in a house. family whose home has no alterations, would be As Members may be aware, the Equal Status excluded from the protection provided in this Act 2000 includes an exemption for small prem- legislation. ises occupied by a provider or a relative. The Race Directive does not provide for such an ex- Mr. O’Dea: The advice is that omission of this emption. However, it provides, in Recital IV, that provision could result in our being found in con- it is important, in the context of the access to and travention of the Race Directive which would provision of goods and services, to respect the cause grave difficulties. The legal section of the protection of private and family life and trans- EU has made clear that there is very little room actions carried out in that context. The protection for discretion in this matter. I accept Senator Tuf- of private and family life is a fundamental right fy’’s point about the difficulty in interpreting covered by Article 8 of the European Convention what is meant by “a separate and self-contained on Human Rights. It is important that the right part” within a family home or any type of house. to non-discrimination be applied with due respect There are several examples of this in revenue and to the protection of private and family life. social welfare law. An example is the person re- The Government proposal is, therefore, to pro- siding in a room or granny flat adjacent to the vide a very narrow exemption excluding the pro- home of his or her son or daughter’s house who vision of accommodation by a person in a part applies for free electricity upon reaching the age other than a separate and self-contained part of of 66 years. The Department of Social and Family the person’s home where the provision of the ac- Affairs does not encounter any great difficulty in commodation affects the person’s private life or determining whether such person is occupying a that of any other person residing in the home. separate dwelling. A separate ESB supply is not The aim of the provision is to protect the privacy in itself conclusive. of persons in accommodation sharing arrange- While I recognise the provision could give rise ments. It is not the intention to exclude from the to some difficulties of interpretation, acceptance Equal Status Act the letting of self-contained ac- of the amendment would result in our being in commodation or bed and breakfast accommo- contravention of the Race Directive and, there- dation. To do so, would be contrary to the Race fore, I must ensure it remains in the Bill. There Directive. are many examples of that terminology in rev- The addition of the words “or in circumst- enue and social welfare law which make quite ances” appears to indicate that the section refers clear what is intended and which give sufficient to the provision of any accommodation as long as guidelines to determine whether accommodation it affects the person’s private or family life and is is self-contained or separate. not restricted to the home and not to the sharing of premises. As outlined above, the aim of the Ms Tuffy: I will withdraw the amendment and exemption is to protect the privacy of persons in ask that the Minister of State look at it again. accommodation sharing arrangements. It is not the intention to exclude from the Equal Status Amendment, by leave, withdrawn. 831 Equality Bill 2004: 18 February 2004. Committee Stage 832

Ms Tuffy: I move amendment No. 25: in order to qualify for a grant which, in my opi- nion, is clearly contrary to the Equal Status In page 29, line 11, after “home,” to insert Act’s prohibition of discrimination based on “or in the circumstances”. nationality . . . I consider that a continuing dis- The Minister responded to this amendment earl- criminatory rule still exists and accordingly in ier. I am not sure its intention is as the Minister the interests of preventing future unlawful dis- perceives it. Acceptance of the amendment would crimination, I would suggest that clause 4.4 be result in a better phrasing of the sentence. It is annulled completely rather than simply being not our intention that the provision would apply disapplied as the need arises. I would also outside the home. Our amendment tries to pro- recommend that the Department, in designing tect the private or family life of the owner. The grant schemes in future should take full ac- Minister of State indicated that, according to the count of the provisions of the Equal Status EU, this is to be protected. That is the purpose Act 2000. of the amendment. It is disappointing that no account has been taken Mr. O’Dea: If what the Senator is proposing of the equality officer’s recommendation that the was accepted, the new section 6 would read: grant schemes be amended to make them non- discriminatory. The Government has instead (b) in subsection (2), by substituting the fol- chosen to approach the matter by amending the lowing paragraph for paragraph (d): Equal Status Act to allow the discrimination to “(d) the provision of accommodation by a continue. While I understand that there could be person in a part of the person’s home or in cir- legitimate concerns about a potential strain on cumstances where the provision of the accom- the grant schemes caused by people coming to modation affects the person’s private or family this country for the specific purpose of availing of life or that of any other person residing in the education, the imposition of a blanket nationality home, or”. clause is both disproportionate and discriminat- ory. As I have suggested, alternative restrictions Instead of creating the dual requirement, the such as residency requirements could adequately amendment, as drafted, would create an either-or deal with any potential abuse. requirement. That would not be acceptable. I ask the Minister of State to consider this matter carefully because the provision will not Amendment, by leave, withdrawn. apply to a huge number of people. As the equality officer stated, it would be better not to Section 44 agreed to. have this discrimination at all rather than applying it on a once-off case basis whenever such SECTION 45. cases arise.

Dr. Henry: I move amendment No. 26: Mr. O’Dea: Section 45 provides that the In page 29, lines 25 to 31, to delete all words Minister for Education and Science does not from and including “she—” in line 25 down to discriminate where he or she restricts the making and including “grants” in line 31 and substitute of higher education grants to EU nationals or the following: provides for the payment of grants at different rates as between nationals and others. There is “she requires persons who are not EU na- no reason that the State, in a situation of finite tionals or refugees to fulfil reasonable re- resources, should subsidise by way of grants quirements in respect of length of resi- attendance at third level courses by non-EU dency in the State”. nationals to the same extent as it subsidises Irish This amendment means that the practice of conti- and other EU citizens. The Equal Status Act 2000 nuing to have non-nationals discriminated against already provides for different treatments in terms regarding third level grants will remain in place. of charging fees for third level education between No one wants to try to arrive at a situation where EU nationals and others. As such, the same people from all over the world flood the country requirements should also apply to the provision and apply for grants to attend third level institu- of grants. No other member state has such a wide tions. However, we could take into account the system of student support and it was considered residency of non-nationals in this country. That is that paying grants to all-comers could place what the amendment suggests. intolerable strains on the student support system I am grateful to FLAC for drawing my atten- and might act as an incentive for non-EU tion to a ruling by the equality tribunal on 28 May nationals to come to the State. 2003. A case was brought by FLAC on behalf of A refugee is a person who has been granted two complainants, both of whom were perman- refugee status here. Such a person is entitled to ently resident in Ireland together with their famil- the same rights of education, health and housing ies and had been here for a considerable number services as Irish citizens, including third level of years. The equality officer’s decision stated: grants. It is open to persons who are not EU Clause 4.4 of the Maintenance Grant scheme nationals and who have been resident in the State for Students states that candidates must hold for some time — I will explain the rules in this EU nationality or have official refugee status regard if the Senator desires — to apply for 833 Equality Bill 2004: 18 February 2004. Committee Stage 834 naturalisation and, if granted, who would meet was working and there was no possibility of the nationality criteria for grants. Under Irish sending any money at all out of it. The institution citizenship law, there is no exclusion from Irish involved looked kindly on the plight of the last citizenship for persons who hold citizenship of two children who were still in college in view of another state. Thus, for example, those who apply the fact that such a huge amount of money had for naturalisation are not required to renounce to be paid. any other citizenship they may hold. Residency could be looked at as an important The effect of Senator Henry’s amendment factor and I am grateful for the Minister of State’s would be to prohibit the Minister for Education commitment to consider the position. I do not and Science from restricting grants to EU believe that there would be vast numbers of nationals or from paying grants at different rates people involved. The people to whom I refer are as between EU nationals and others. As matters paying tax and high fees in this country and the stand, the Government is not disposed to accept position could be the same with many others. the amendment. Mr. O’Dea: I understand that there are Dr. Henry: I am disappointed because I would hardship cases. My understanding is that there is have hoped the residency requirements could general unhappiness among third level students have taken account of that. After all, a person’s about the level of grants. The Government family may be paying plenty in taxes to the State. recognises that to some extent and wishes to I accept that naturalisation is a possibility for concentrate resources on increasing the rate of people. However, those I know who are involved the grants for those who are already entitled to in pursuing this avenue will be mature students them, namely Irish and EU nationals. However, by the time they apply for grants because the I understand Senator Henry’s point of view and I naturalisation process takes so long to complete. recognise that some of the people to whom she In view of the fact that I suggest that residency refers may have parents or relatives who are should be an important factor, will the Minister resident here and paying tax. I will examine the of State reconsider the position before Report matter although I cannot promise anything. Stage? Amendment, by leave, withdrawn. Mr. O’Dea: I will do so. Section 45 agreed to. Ms Tuffy: I support Senator Henry in terms of Section 46 agreed to. what she is asking the Minister of State to do. I understand his explanation that we must SECTION 47. differentiate and we already do so because we charge much higher fees to overseas students. It Acting Chairman (Mr. U. Burke): Amend- goes without saying that the process could not be ments Nos. 27 and 29 are related and may be dis- open-ended. However, Senator Henry is correct. cussed together, by agreement. My county council allows people with certain residency requirements to go on the housing list. Dr. Henry: I move amendment No. 27: These people are still discriminated against but they are at least allowed to apply and, in due In page 30, paragraph (a), lines 19 and 20, to course, they will have the opportunity of getting delete “, or made otherwise by a public a local authority house. There is a need for authority,”. something similar in respect of third level grants. This is another area in which a small number of If we allow people to stay here who do not people seem to be excluded from the protection necessarily apply for Irish citizenship, we should of the Equal Status Act. They are asylum seekers. permit them to take up education and training. They are lawfully in the State but they lack legal We should encourage them to do so because it status within it. They are very vulnerable in would allow them to participate in our economy dealing with public authorities as defined under to the best of their ability. The Government the Bill which is very wide. I would be grateful if should consider this matter and Senator Henry the Minister of State could see his way to taking has given an indication of the way forward in into account the residency of people within the that regard. State given the great degree to which the legislation is open to interpretation. The term Dr. Henry: I would be grateful if the Minister “public authority” is open to wide interpretation of State would consider the position. These cases and community welfare officers and NGOs have tend to crop up from time to time in awkward consistently expressed concern about differential circumstances. For example, I dealt with one such treatment of asylum seekers in the social welfare case where the mother was an Irish national living system. An example is the payment of reduced here while the father was a non-national living supplementary allowances. abroad. He was sending money from abroad to The provisions of section 47 will create another pay the fees of four children. The fees charged to area in which asylum seekers will be non-nationals are huge. A disruption occurred in differentiated on the grounds of nationality and the country where the father of these children denied the full protection of the Equal Status Act 835 Equality Bill 2004: 18 February 2004. Committee Stage 836

[Dr. Henry.] The purpose of this amendment is obvious. We 2000. It will open the system to significant have just passed the Immigration Act 2004 and discrimination by health boards and other this Bill should reflect that fact. agencies if this section is included in the Bill as suggested. Mr. O’Dea: I propose to accept the principle of this amendment. I will table an amendment Mr. O’Dea: As I understand it, this section exactly like or very similar to Senator Tuffy’s on seeks to allow for direct provision, which is the Report Stage. I thank the Senator for drawing system we operate, of accommodation and this lacuna to our attention. assistance to persons who have applied for asylum status and are awaiting decisions. The Amendment, by leave, withdrawn. section does not permit discrimination in the provision of goods and services to anyone in the Amendment No. 29 not moved. State on the basis of race or nationality. However, Section 47 agreed to. section 47 clarifies that any decision taken in the context of asylum and immigration applications is Sections 48 to 58, inclusive, agreed to. not open to challenge under the Equal Status Act 2000. This is implicit in the existing Act because TITLE. permitting entry to and residence in the State is not a service within the meaning of the Act. Ms Tuffy: I move amendment No. 30: Moreover, treating persons differently on the basis of their legal status — that is, distinguishing In page 5, lines 24 and 25, to delete “IN between those lawfully and unlawfully resident in PART”. the State and those seeking asylum and those This amendment is proposed because the 2001 granted it — does not constitute discrimination regulations were repealed in their totality. To say on the grounds of race or nationality. that they were repealed in part is incorrect. I draw the attention of Senators to article 3 of the race directive which states that the directive Mr. O’Dea: The European Communities does not cover differences of treatment based on (Burden of Proof in Gender Discrimination nationality and is without prejudice to provisions Cases) Regulations 2001 give effect to Council and conditions relating to the entry into and Directive 97/80/EC on the burden of proof in residence of third country nationals and stateless cases of discrimination based on sex. The persons on the territory of member states and to regulation applies to gender discrimination cases any treatment which arises from the legal status taken under the Employment Equality Act 1998 of the third country nationals and stateless and the Maternity Protection Act 1994. The Maternity Protection (Amendment) Bill 2003 will persons concerned. In the Equal Status Act, revoke part of the regulations with respect to discrimination on grounds of nationality is maternity discrimination cases and will re-enact outlawed which goes beyond the requirements of the relevant provisions. The Equality Bill revokes the race directive. and re-enacts the relevant provisions of the Senator Henry proposes the deletion of the regulations with respect to the Employment phrase “or made otherwise by a public authority”. Equality Act. The inclusion of the phrase “IN I cannot accept the amendment as to do so would PART” is required while both Bills are before cast doubt on the exemption for non-statutory the Oireachtas. schemes governing non-nationals, including schemes of direct provision for asylum seekers. I Amendment, by leave, withdrawn. do not accept Senator Henry’s second proposal to remove from the definition of “public authority” Title agreed to. paragraphs (i) and (j) referencing companies. To ensure the exclusion is all encompassing and as Bill reported with amendments. the definition of “public authority” used in the Bill is similar to the definition used in the Waste Acting Chairman: When is it proposed to take Management Act 1996 and the National Cultural Report Stage? Institutions Act 1997, I do not propose to accept the amendment. Ms O’Rourke: It is proposed to take it next week, subject to the agreement of the Whips. I Amendment, by leave, withdrawn. thank everyone for working exactly within the time allowed. In particular, I thank the Minister Ms Tuffy: I move amendment No. 28: of State and his officials. Report Stage ordered for Tuesday, 24 In page 30, lines 34 and 35, to delete “under February 2004. the Aliens Order 1946 (S R & O No. 395 of 1946)” and substitute “or deemed to have been Sitting suspended at 2 p.m. and resumed at appointed under the Immigration Act 2004”. 2.30 p.m. 837 Civil Registration Bill 2003: 18 February 2004. Committee Stage 838

Civil Registration Bill 2003: Committee Stage. Mr. B. Hayes: Amendments Nos. 3 and 28 are in my name and that of Senator Cummins. They SECTION 1. relate to a fundamental issue on which many Mr. Cummins: I move amendment No. 1: Senators have received representations from a wide number of groups representing unmarried In page 7, subsection (2), line 23, to delete fathers and mothers. “shall come” and substitute “comes”. Amendment No. 3 seeks to include after the This is a technical amendment which improves word “adoption” the word “guardianship”. the text. I trust the Minister will accept it. Senator Cummins and I propose that change in order to bring a new definition to the Bill and to Minister for Social and Family Affairs (Mary bring into being a new registration for Coughlan): We have looked at this section which guardianship orders, which have been granted for provides for the Title of the Act and the the past ten years or so. In amendment No. 28 commencement of the different parts. I have we go further, proposing a new section urging the received advice from the Office of the Attorney registration of guardianship. I have read the General and through the Parliamentary Counsel Minister’s remarks on this matter in the other that the words should stand and that all the House, where she will no doubt agree that a very drafting of the provisions of this section complies interesting debate took place. I commend the with best current practice. It would give no Minister on many of the initiatives she is taking additionality to the Short Title and in the Bill, but there is nevertheless a good deal commencement of the Act if we were to of public concern about the fact that while we are introduce such an amendment. putting in place a registration procedure, we are excluding the issue of guardianship, which to Mr. B. Hayes: I thank the Minister for the many people is “a life event” and very significant reply. This is not an amendment on which we in their lives as a result of orders obtained. intend spending much time. Regarding section Before the legislation brought to the House by 1—— former Deputy and Minister for Equality and Law Reform, Mervyn Taylor, it was the case that An Leas-Chathaoirleach: We are dealing with in order for guardianship to be recognised by the the amendment. State, a father and mother had to go to court to have it determined. The decision would be set out Mr. B. Hayes: It refers to section 1. by the court in a very prescriptive form. As I understand it, since the 1997 legislation, it now An Leas-Chathaoirleach: We will be dealing falls within the responsibility of the father and with the section. Does the Senator wish to speak mother to determine the issue themselves, on the section? entirely outside the courts. That is a very good development because, as the Minister knows, Mr. B. Hayes: If I may. there is no legal fuss or cost involved and perhaps through a peace commissioner people can have a An Leas-Chathaoirleach: We will deal with the guardianship order recognised and signed. amendments first. In my constituency clinic last Saturday I met a group of men who are concerned that if Amendment, by leave, withdrawn. guardianship orders are not recognised in the context of this Bill, a whole range of difficulties An Leas-Chathaoirleach: Amendments Nos. 2, and concerns that we may not have considered 3, 5 and 28 are related and may be discussed may open up. There is a necessity to do together. Is that agreed? Agreed. something about that. Let us consider the following scenario. An Mr. McCarthy: I move amendment No. 2: unmarried mother and an unmarried father have In page 7, between lines 28 and 29, to insert a child. Some years later they agree on the following subsection: guardianship. They both have that document but let us assume he loses the document and there is “(3) As soon as may be after the passing a further deterioration in the relationship of this Act, the Minister shall prepare and between the two parties. If that unmarried father lay before both Houses of the Oireachtas, a does not have access to the document originally statement as to the implications of obtained under what I believe is the 1997 introducing a system of registration of legislation, he has no proof that such an order guardianship orders and agreements”. was granted. I welcome the Minister to the House. The There are some practical outcomes if this purpose of the amendment is to stimulate measure cannot be brought forward. For discussion on this matter. We have all been instance, if the father wants to take the child out lobbied at some length by associations of the jurisdiction, as I understand it, under representing natural fathers and I broadly guardianship the father and the mother must support their pleas. I would like to know the agree to that. However, if the unmarried father Minister’s thoughts on this amendment. does not have a document stating that, for one 839 Civil Registration Bill 2003: 18 February 2004. Committee Stage 840

[Mr. B. Hayes.] Joint Guardianship by Agreement — reason or another, and the woman refuses to register: acknowledge guardianship, there is no standing There has been a missed opportunity in for the unmarried father in the eyes of the law. the Bill in that it does not allow for the To take another example, a mother could put setting up of a system of registering Joint her child up for adoption. If the unmarried father Guardianship Agreements... [that was fol- has guardianship I would have thought his views lowing the 1997 legislation to which I re- on the matter are fundamental as to the future of ferred]. These are statutory agreements the child, yet if he does not have access to this which unmarried couples can sign in the document for one reason or another he will find it presence of a peace commissioner or com- difficult to prove that. The same is true for health missioner for oaths agreeing to joint information. I have come across a number of guardianship of their child as unmarried cases in my constituency whereby the father mothers have sole rights and fathers have wants access to the reports of a child in State no automatic rights. There is no obligation examinations or in-house examinations in on the peace commissioner or com- schools. Has he the right to obtain those if he missioner for oaths to record such agree- does not have the document so described? It is ments. There is no central register for such good for a whole range of reasons to put this into agreements and we believe that a facility the legislation as a first principle. for registering such agreements should be The Minister stated in the other House that included in the Civil Registration Bill. guardianship is not a life event; I believe that is Over one third of children are born the term she used, but I remind her that when the outside of marriage and many of the Bill was published the explanatory memorandum fathers of these children rely on such stated that apart from providing a record of vital agreements to acquire and prove events in relation to persons living in the State, guardianship rights of their children. In these records also satisfy the need for evidence case of dispute between parents the only which has a bearing on rights, entitlements, record is a copy of the document and if this is mislaid there is no way of liability, status and nationality. The Minister has establishing that such an agreement was conceded in the explanatory memorandum that made. rights flow from many of the agreements we make. This is not just an issue that many men’s It is good practice to stitch these guardianship organisations have brought to colleagues’ orders, which the law wisely has facilitated, into attention. It is an issue which those who work the legislation and, from now on, register those with unmarried parents have identified through with the registration procedures in the State the Treoir organisation. because it is not sufficient simply to have the We have a responsibility to move with the name of the father on the birth certificate. If the times on this issue. The Minister said she is father has guardianship it implies not just rights consulting with her colleague, the Minister for for him, and we will come to that in another Justice, Equality and Law Reform, on the matter. section, but it implies obligations on him by We now have an opportunity to insert this ensuring the State has a system of tabulating provision in the legislation from day one. Many these guardianship orders. From a public policy people would be very grateful for that because in perspective we need to know that information. I the natural course of events relationships break am not sure how many of these guardianship down and become acrimonious, with one side orders have been granted since the legislation was saying this and the other side saying that. It is introduced. No one knows because no one keeps difficult to work out who is telling the truth in the a record of it but we now have a chance to whole saga and I would have thought it sensible modernise our national records and with these that we would have a national register for these guardianship orders, that should be the case. guardianship agreements which the courts could I apologise for going on about this matter but then refer to because the Minister states, in the I have strong opinions on it. I want to read a explanatory memorandum, that the records statement from Treoir, which is the national satisfy a whole range of other rights. We have to federation of agencies which provide services to keep that in mind. I apologise for being so long- unmarried parents and operates a national winded. information centre for unmarried parents and those who work with them and, through this Dr. Henry: I, too, support the call for a central service, the regular communications with member register of joint guardianships. As Senator Brian organisations. I am sure the Minister will Hayes said, one third of children are born in this welcome this statement. It states: State outside marriage and therefore we are talking about a considerable number of cases. It Treoir welcomes the legislation to modernise is important to remember that this provision the civil registration system but there is a could be vital for the father, the mother, the child number of issues which are of concern to the and their extended families. I hope the Minister organisation... can accept one of the amendments. 841 Civil Registration Bill 2003: 18 February 2004. Committee Stage 842

I spoke on Second Stage about another group Mary Coughlan: I appreciate there is some of children I am concerned about but I did not written opinion by some journalist who has a hear the Minister’s reply. It concerns the position particular issue with this legislation personally regarding children who were born to surrogate and, as a consequence, it has got a good deal of mothers abroad and brought back to this country. airing. Senator Brian Hayes said the explanatory As the Minister is aware, there is quite a number memorandum reflected the issue of bestowing of such children who have either been born in the rights as a consequence of life events. That is United Kingdom or the United States; I do not true, but it only reflects the life events referred to have any knowledge of children born in any other in the legislation. It would be the considered view country. I would have thought we have a serious that guardianship is not a life event. It may be problem regarding the register these children are something that happens during one’s lifetime but on because they have not been born and it is not necessarily a life event. Much discussion registered here. There is a problem regarding has taken place on it. The Guardianship Act 1964 adoption because, with surrogacy, money has provides for the declaration by the mother and changed hands and as the Minister is aware, father in relation to the guardianship of a child under the Adoption Acts money cannot change through a notary, public commissioner for oaths hands. Perhaps the best option is to have the or a PC. It is stated in big writing on that piece parents made joint guardians of these children of paper that it is a legal document and should be and have them on this register. looked after and cared for. I assume that anyone I know of a number of cases where the who has guardianship of a child would, by right, biological father, whose sperm was used in lodge that document with their solicitor to keep pregnancies which took place — one in the it safe because on many occasions there are United Kingdom and one in the United States — acrimonious situations at a later stage. had a court order that he is the guardian of the Guardianship can also be determined by the child but that leaves the mother here, who is courts. The Ard Chla´raitheoir never had any bringing up that child, with no legal rights over function in the registration of guardianship orders the child. Perhaps we could do something about granted by the courts or in any of the other that here and have them in a position of joint statutory declarations. The registration of life guardianship by agreement. I am not talking events, for example, births, deaths, marriages, is about half a dozen cases. I am talking about quite a compulsory act. There is a penalty for failing to a number of children by now. I do not know how do so. they are managing because with the joy of the I appreciate where Senators are coming from child arriving, and it must be remembered that on the basis of the changes in society, life this has only been happening for five or six years, changes, life event changes, relationship little thought is given to what will happen in the difficulties and the responsibility of guardianship. future about inheritance and so forth. If the On that basis I wrote to my colleague, the parents are killed in a car crash, will the child be Minister for Justice, Equality and Law Reform, viewed as a stranger and have to pay an given that he, through the Courts Service, enormous amount of inheritance tax? There are provides registration for divorce and would have many difficulties here which are not being records of guardianship orders, arising from the considered. Senator Brian Hayes and Senator courts, asking if he would consider making the Cummins raised the more common situations. declarations available in the same way as court One of the reasons I was keen to try to get the orders are available. On the issue of surrogate register of guardianships set up was that this mothers—— matter needs to be addressed now. I have met some of these children. Unless the adoption laws Dr. Henry: Surrogate children. are made fairly elastic, I do not know how they are to be dealt with except under joint Mary Coughlan: On the issue of surrogate guardianship. I would be glad to hear the children, if, for example, the child is born in the Department’s views. United Kingdom, that child would be registered there. Given that we recognise British birth Mr. Cummins: I referred to this issue on certificates, the involvement of the Ard Second Stage and I do not wish to repeat what Chla´raitheoir is something we would query my colleague, Senator Brian Hayes, said. It will because the child has actually been registered and be a missed opportunity if we do not act now. has a birth certificate. The Senator is talking The Bill is an opportunity to set up a register of about a child who has been adopted as a guardianship. I firmly believe it should be done consequence or who has, perhaps, circumvented now and I hope the Minister will accede to our the legal—— request. Dr. Henry: The child cannot be adopted Mary Coughlan: I knew when I came to the because money has changed hands. The adoption Upper House that I would find a few more legislation provides that money cannot change complications with the legislation. hands. The woman here — and perhaps the man — is not in a position to adopt. This happens Mr. B. Hayes: The Minister is looking at them. particularly if the man’s sperm is used and the 843 Civil Registration Bill 2003: 18 February 2004. Committee Stage 844

[Dr. Henry.] where the woman stands with regard to her biological mother of the child is in England, but guardianship of that child and whether she can the woman who is bringing up the child is back legally take up the guardianship order. That is an here in Ireland and has no rights to that child. issue on which I am not competent to advise. I Could a joint guardianship arrangement be made am sure that is an avenue available to people to in that case? take out guardianship but I am not legally qualified to give an opinion on that issue. Mary Coughlan: We are getting ourselves into On the basis of the legislation, the child has a an area well outside the parameters of this birth certificate. It is a legal birth certificate and legislation. Our only focus would be on the basis whatever information is on that birth certificate that the child would have a birth certificate. What would be legally held and acceptable to the Ard the Senator is speaking about is a legal quagmire. Chla´raitheoir. The issues raised would need more than five minutes reflection on the floor of the Mr. B. Hayes: It exists. House. Certainly it is an issue we may have to look at in the future. On the basis of this Mary Coughlan: That is correct. By right, if legislation, as it stands, it is more like the anyone accepts money for a child — we all have Guardianship Act or succession legislation which our views on that issue — that child probably is outside the parameters of this legislation and is, would be in a legal limbo because if the biological perhaps, an issue for the Department of Justice, father’s name was on the birth certificate, then Equality and Law Reform. that child would have a father. However, that man’s wife would not be that child’s mother. Mr. B. Hayes: I was the spokesperson on social welfare in the last Da´il. The dilemma sometimes Mr. B. Hayes: That is right. is that in Social Welfare (Miscellaneous Provisions) Acts these matters are stitched on at Mary Coughlan: She has no right—— the end. The argument of this House is that there is an Dr. Henry: ——to the child. opportunity in the context of this Bill — it has been many years coming and to the Minister’s Mary Coughlan: ——to adopt that child credit she has produced it — to get because that child’s birth mother is someone else 3 o’clock this right now rather than stitching it in the United Kingdom. on in years to come. The Minister stated in regard to my amendments Nos. 3 and 28 Dr. Henry: That is right. that she is considering the issue in conjunction with the Minister for Justice, Equality and Law Mary Coughlan: Under the legislation as it Reform. She also stated that the Minister for stands, that child could not be adopted by that Justice, Equality and Law Reform may deal with woman even though she is the wife of the father, this in the Courts Service Bill. However, that only on the basis that there is a legal mother. affects guardianship orders which come before Dr. Henry: That is right. the courts. The majority of new guardianship orders — I do not know how many because Mary Coughlan: That mother cannot remove nobody has evidence on total numbers — which that right of being the mother. One cannot we encourage unmarried mothers and fathers to quench the fact that one has ever been a mother make with each other, are made outside the in this world. It leaves that child in a legal limbo. courts. Even if the Minister amends the Bill she I am speaking off the top of my head and I am refers to in conjunction with the Minister for not a legal person. If one is talking about the real Justice, Equality and Law Reform, it will only father of the child and the wife of the father, I deal with matters before the courts. It will not assume they would get legal advice on the basis deal with the new regulations of guardianship of guardianship. I am not sure whether that which have come about since the introduction of stands up. Equally, there could be a issue in five Children Act 1997. or ten years as the birth mother may come back We have an obligation to get this right now. and look for that child. The definition of “events” for the purposes of the Bill includes adoption, foreign adoption, Dr. Henry: She cannot come from the United marriage, death and decree of divorce. However, States. the Minister cannot create a value judgment that guardianship is less important to a person or has Mary Coughlan: Not from the United States. some sort of second class status in the context of What we are looking at is an issue which is well life events. To a man not married to a woman but beyond the realms of this legislation, although who has a child with her, it is just as important as there is obviously an issue there. All we can do is adoption or the issue of stillbirth. draw to the attention of the Ard Chla´raitheoir We should get away from the notion that we that there is an issue, especially on the basis that are creating different divisions of life events. The the child has a birth certificate and the legalities objective of this legislation is to modernise civil of where that child stands, and more particularly registration and to take account of the new life 845 Civil Registration Bill 2003: 18 February 2004. Committee Stage 846 events provided for in previous legislation. I do the Minister can accept one of the amendments not accept the argument that in some way regarding a guardianship register. guardianship is outside the remit of a life event, as the Minister has described. I reiterate that it is Mary Coughlan: I know the orders dealt with fine for the Minister for Justice, Equality and in court are registered and available. I have Law Reform to change the Courts Service Act spoken to the Minister for Justice, Equality and 1997, as we would then know of all the Law Reform regarding the statutory declarations guardianship orders going through the courts. being made available on a register similar to that However, we will not know of all the for court orders. The issue of compulsion is a guardianship agreements between unmarried problem for us in the context of this legislation mothers and fathers and, consequently, it will because any agreement is a voluntary act between undermine the State’s claim that men have an two people. However, as I have said, I have obligation to their children. spoken to the Minister on the basis that he would We should encourage people to take full and facilitate the statutory declarations being made active part in and responsibility for the rearing of available in a similar manner to the court orders. children, in particular men, some of whom do not While we cannot compel people to do that as it take any such responsibility. While I suspect we is a voluntary agreement between two people, the will have a debate on section 22 later as it Minister and I are discussing its facilitation. I concerns a related point, the State has an brought the views of the lower House to the obligation in regard to all aspects of legislation to Minister and can do the same in regard to the state that it is encouraging people to seek discussions in this House. guardianship and, if that happens, that the State will register this in the national civil register, Mr. B. Hayes: That would facilitate duplicates which has been in existence since the foundation of the original form being made available. of the State and before, and that the State will recognise this as a life event. That is not difficult Mary Coughlan: Yes. to accept. I appreciate the Minister’s dilemma in that she Mr. B. Hayes: That would certainly be a step is in discussion with the Minister for Justice, forward. Equality and Law Reform on this issue. However, it is a serious matter, in particular for men who Amendment, by leave, withdrawn. want to stay close to their children but for all kinds of reasons, such as the breakdown of a Question proposed: “That section 1 stand part relationship or otherwise, cannot. We must be of the Bill.” mindful of this as we try to modernise this legislation. Mr. B. Hayes: I was contacted yesterday be a constituent in regard to section 1. He plans to get Dr. Henry: I can understand the Minister married over the summer and is very supportive saying she is not competent to discuss this matter of the Minister’s innovative proposals to allow as it is difficult to find anyone who says they are. marriages to take place outside of normal places. However, it is a real problem. Can the Minister He wants to know when the legislation will be and her officials reconsider the issue of the enacted. The Minister will presumably have to guardianship register? The orders made in court make orders regarding most of the sections. are already written down somewhere. When will that commence in terms of impact, in particular in regard to new places of marriage? Mary Coughlan: They are. Mary Coughlan: Enactment of all sections will Dr. Henry: While the Minister is quite right to be in the second half of 2004. It will take that say that people should keep their papers safe, it is amount of time. amazing what happens to important bits of paper, which often get lost. I hope the Minister can Mr. Cummins: He might be lucky. revisit this issue, in particular as it involves so many children and parents and not a small Mary Coughlan: I hope the registrar in his area isolated group. has a nice office. To return to the matter of the other small isolated group to which I referred earlier, they Question put and agreed to. will not be isolated for much longer as they will be a much bigger group. I would be grateful if the Amendment No. 3 not moved. Government would address this important matter because issues may arise where parents split up Sections 2 to 12, inclusive, agreed to. and a person finds he or she has no rights to a child, or where there is a tragic accident in which SECTION 13. the parents are killed and the child is left in a legal limbo. From a general point of view, I hope Mr. McCarthy: I move amendment No. 4: 847 Civil Registration Bill 2003: 18 February 2004. Committee Stage 848

[Mr. McCarthy.] Mary Coughlan: I am confused about where In page 15, subsection (1)(b), line 38, after the Senator is coming from. I accepted the “State” to insert “or to which section 26 or 27 amendment, therefore, it is included, as amended. applies”. Mr. McCarthy: It is my understanding that the I understand the register of births covers children Minister accepted an amendment to 13(1)(b). born in the State and additional cases where children are born outside the State, for example, where children are born to Irish citizens resident Mary Coughlan: Section 27(6) addresses the outside the State such as members of the Defence Senator’s concerns. It reads as follows: Forces or Garda Sı´ocha´na serving abroad, or Subsections (1) to (5) apply to the stillbirth otherwise, or where children are born on aircraft of a child as they apply to the birth of a child travelling between airports or on vessels between and, accordingly, references in those ports. Provision is made for registering such subsections to birth or births shall be construed births in sections 26 and 27. as including references to stillbirth or I understand the Minister accepted an stillbirths, respectively. amendment in the Lower House in regard to What the Senator is seeking in section 13 is provision for foreign stillbirths. Perhaps the included in section 27. Minister will explain why she accepted the amendment. There is a difference between the Mr. McCarthy: The amendment reads, “In wording in 13(1)(b) and 13(1)(a) regarding the page 15, subsection (1)(b), line 38 after “State” reference “or to which section 26 or 27 applies”. to insert ‘or to which section 26 or 27 applies’ “.

Mary Coughlan: The Senator will be aware that Mary Coughlan: One does not have to refer in a number of issues arose. Perhaps he is not aware section 13 to sections 26 and 27 as they stand. that the registration of a birth on an aircraft and ship was an issue for parents who are not Irish Mr. McCarthy: Is the Minister’s point that this born. One of the reasons for bringing the provision is included? legislation to the House quickly is that an issue has arisen and the Supreme Court is awaiting Mary Coughlan: Section 27 reflects exactly our decision. what the Senator wants. The problem was that births and stillbirths abroad, apart from births to members of the Amendment, by leave, withdrawn. Garda and the Defence Forces, could not be registered except in a situation whereby similar Amendment No. 5 not moved. registration to that which applies here was not available outside the State. At the time we Section 13 agreed to. omitted stillbirths. We all appreciate that stillbirth is a terrible trauma for a family. It had Sections 14 to 17, inclusive, agreed to. not been included in a similar way to all births, NEW SECTION. therefore, we accepted the amendment to ensure that births and stillbirths get equal recognition Dr. Henry: I move amendment No. 6: throughout the legislation. The registration of a stillbirth on a boat or aircraft was not previously In page 20, before section 18, but in Part 3 included, but we have now decided to include it of the Bill, to insert the following new section: for the sake of equity. This creates exactly the 18.---(1) the Minister shall establish an same legislative framework for births and advisory body, to be known as the Civil stillbirths, which the Lower House asked me to Registration Advisory Body (and referred to accept. in this Act as ’the Advisory body’), to advise an tArd-Chla´raitheoir and an tArd- Mr. McCarthy: It basically extends the same Chla´raitheoir Cu´ nta in their exercise of the rights to the registration of stillbirths. powers and duties under this Act: (i) on all matters affecting civil Mary Coughlan: Yes. registration, and (ii) about the provision of service by an Mr. McCarthy: I appeal to the Minister to tArd-Chla´raitheoir, and the use of such by accept the amendment because it mirrors what the general public, and she has said in regard to accepting the amendment in the Lower House. It is just a (iii) about the care and preservation of matter of the difference between the wording in any and all records held in the care of an 13(1)(a) and 13(1)(b). Obviously it is a very sad tArd-Chla´raitheoir. issue and we owe it to these people to emulate in (2) The Advisory Body shall consist of a this House what happened in the Lower House. chairperson and not more than eleven other 849 Civil Registration Bill 2003: 18 February 2004. Committee Stage 850

members (who shall not be entitled to draw Ireland; National Library of Ireland and a public any expenses or other financial remuneration interest nominee. from the public purse), appointed by the I would have thought that such a body could Minister on such terms and conditions as be very useful. I hope the Minister will consider shall be determined by him or her. favourably my amendment. (3) (a) The members of the Advisory Body Mr. B. Hayes: I support Senator Henry’s shall include at least one member from each amendment. We will not get a chance for another of the following bodies, organisations or 15 or 20 years to get the general statutory interest groups: provision for civil registration right. As I said (i) Adopted Peoples Association; earlier, rather than having civil registration added at regular intervals by way of social welfare Bills (ii) Association of Professional that come before these Houses, it would be Genealogists in Ireland; sensible to provide for it on a statutory basis. I (iii) Council of Irish Genealogical concur with Senator Henry’s remarks. Organisations; The Minister referred to the fact that she will establish two panels. When does she expect the (iv) Genealogical Society of Ireland; panels to be established and to be up and (v) Irish Family History Society; running? What precisely will they do? The members of the advisory body set out by Senator (vi) Law Society of Ireland; Henry encompass all the interested parties in this (vii) National Archives of Ireland; matter. This would not register with many people but those who are interested are experts and (viii) National Library of Ireland; perform a public service, whether they are (ix) Public interest nominee. involved in the GRO or in these organisations, and we should recognise their work in a statutory (b) An tArd-Chla´raitheoir shall be format. I can point to countless examples in other entitled to attend meetings of the legislation where Ministers have put such bodies Advisory Body. on a statutory footing and they are totally (4) The Minister may at any time independent of Government. terminate the appointment of the chairman This amendment has merit. The Minister might or any other member of the Advisory not accept it on Committee Stage but she could Body.”. table her own amendment on Report Stage. Given the work these bodies do and the service This amendment seeks to establish a civil they provide, they should be recognised in registration advisory body. Advisory bodies are legislation. There is no reason why we should not very common. For example, the National take this route. Archives of Ireland has one, the National Library has one, while the general registration office, Dr. Mansergh: There is no dispute about the which will have the largest and most complete set principle of consultation on the operation of the of data relating to people in Ireland, does not office. As Senator Henry explained, there are two have an advisory body. Given that it is a most dimensions to the legislation, the strict original important institution from the point of view of purpose and the social dimension of family the general public, I thought it would be useful if history and research. There is merit, however, in there were a body to which citizens could appeal the Minister’s approach of keeping the system on if they felt there were inadequacies in the way an informal basis. There is no dispute about the they were being treated. principle but once a statutory advisory body is The Minister said in the select committee that set up—— she would set up two non-statutory central panels, one to cater for general registration and Mr. B. Hayes: It can be awkward. the other focusing on family research. While these would be very worthy bodies, it would be Dr. Mansergh: There are advantages in better if there were a statutory civil registration informality and there will be more constructive advisory body, which would have a bit more co-operation than if people are invested with power. It is not as though I am seeking something statutory powers. expensive. They are barely able to get a cup of tea and they can just meet approximately a Mr. Cummins: I support this amendment. The couple of times a year. It would be useful to have body should be established on a statutory basis such a body which could comprise a wide number because advisory bodies can be ignored and of other bodies, including the Adopted Peoples statutory authorities lead to greater Association; Association of Professional accountability. People may feel an advisory body Genealogists in Ireland; Council of Irish exists for consultation alone and that there is no Genealogical Organisations; Genealogical obligation to take the advice it offers. The Society of Ireland; Irish Family History Society; Minister should consider establishing a statutory Law Society of Ireland; National Archives of body to deal with the matter. 851 Civil Registration Bill 2003: 18 February 2004. Committee Stage 852

Mary Coughlan: The Senators sell themselves The ethos of the amendment is being addressed short as advisors to the Government and as public in the proposals I have made in the Department. representatives. It is obvious from the comments today that the lobby bodies have done their bit Dr. Henry: Before I was elected to the Seanad, to influence Members to put forward their views. as a doctor I was tortured by people asking questions about social welfare. When I entered Mr. B. Hayes: There was no cash for questions. the House it was worse. Then, seven years ago, the queries stopped. I thought they had realised Mary Coughlan: As many Senators know, there I had no power or influence but then I discovered are advisory bodies in the Department that come that the Department of Social and Family Affairs together on an ad hoc basis. We have always been had been touched by an angel of some sort and of the view that quality customer service is vital. there had been training in customer service One of the difficulties with Committee Stage is because people were getting answers to their that there has been a pre-emptive strike on what queries. There is now a totally different attitude I wish to do. in the Department of Social and Family Affairs from that of some years ago. People get answers Within the General Registers Office we are and that saves people like me a great deal of time now monitoring the levels of service delivery and trouble. against defined, published targets and obtaining I am sure the two bodies the Minister will feedback from customers on service delivered establish will be excellent but the lobby groups and future service requirements. That is an are enthusiastic about a statutory advisory group integral part of the commitment on the delivery and this is the one opportunity they will have to of quality customer service. It is also proposed to get it. The Minister, however, has her face set establish a customer consultation framework and against it. from that we would facilitate and encourage customer feedback on the levels and quality of Mary Coughlan: I have but, unlike some of my the customer service being provided. It will colleagues, I am not afraid to amend my enable customers to raise any issues or areas of legislation if circumstances change. I must tell concern, to suggest ways in which the service can Deputy Michael Woods that the Senator thinks be further improved and provide input into the he is an angel because it was he who introduced future developments of the service, including the quality service. most appropriate use of technology. The consultative panels are important and we Mr. B. Hayes: I think Senator Henry was will consult the organisations mentioned by referring to Deputy Dermot Ahern. Senator Henry that are in touch with the Department on an ongoing basis when it comes Mary Coughlan: The ethos of the Department to the future of our service delivery. We will has changed considerably due to the training and establish a customer service side and a customer service initiatives in place, which have professional side to look at the family genealogy developed. Staff have also met members of the side of service delivery as well as the normal community and such interaction has led to good service delivery. action being taken on the ground. As that The panels established in the Department in methodology has stood its stead well within the recent years have been excellent. People are Department, I would like it to continue. chosen randomly and invited to participate in a However, if glaring problems arise in regard to forum. They are asked about the service that is certain issues, we will have to re-evaluate the being provided and to give their views on its methodology. I would prefer to continue with the service. There is good interaction between the two initiatives in place, to monitor how they work staff of the Department and the customer and and evaluate them. I have never had a problem most people have enjoyed the opportunity to give with evaluating and reforming existing practices. their views. The Department recognises that Once a measure becomes a statutory obligation there is a specialised group with a particular and a statutory animal, it is difficult to reform. Often we may have to change the direction in interest in the running of the General Registers which we want to go. I am sure the Senators will Office that we would want to give it an also continue to act as an advisory body on these opportunity to interact on a regular basis with issues, as they have eloquently done in recent the Department. weeks. I do not like establishing statutory advisory bodies, however, because they often go beyond Dr. Henry: I will be in contact with the their remit and lose sight of the genuine concerns Minister because the Council of Irish that would be raised in the Houses. I prefer a Genealogical Organisations will be in contact more targeted approach through the service with me. If the system does not work there will delivery models. That is why it took so long to be this chain reaction. We will have to see how get this legislation ready — the consultation that it works. took place was time consuming and widespread. There is good interaction between the Mr. B. Hayes: From time to time presumably organisations and the General Registers Office. there will be a level of disagreement, creative 853 Civil Registration Bill 2003: 18 February 2004. Committee Stage 854 tension, call it what we may, between the GRO other lobbying. We should not view issues of and some of these organisations. One does not tension and difficulty between the GRO and need to be Einstein to note from reading the many of these organisations as a bureaucratical letters page of The Irish Times for the past ten nightmare about to happen every time they enter years that there has been a significant degree of into discussions; they are only there presumably complaints about the length of time it takes for to help and advise the Government and the GRO certification due to searches and so on. Let us be in its important work because they are the people honest and admit that difficulties and tensions who use it on a constant basis. arise sometimes which are only natural and acceptable in any institution. However, I would Dr. Mansergh: We need to make a distinction have thought it more sensible if those experts — in this regard. The GRO has a fundamental a small band of people throughout the country — importance in that it provides documentation who are dealing with this area on a constant basis which gives all of us various rights during our were part and parcel of this whole process. I take lives such as access to birth and marriage it the panels to which the Minister referred are certificates. It also has a subsidiary role, the the existing ones and that she is not referring to genealogical one. I would be concerned if that new panels she intends to establish. role were formalised in the way suggested as that would result in the priorities being lopsided. The Mary Coughlan: I am referring to two new genealogical side would almost assume primacy. panels. It is an important economic and cultural activity and I would not in any way underrate it but, Mr. B. Hayes: When will they be established? nonetheless, it is not the primary function of the Prior to their establishment, presumably the GRO. Therefore, I support the Minister’s Minister will be in discussions with all the position out of conviction rather than any other organisations mentioned in Senator Henry’s reason. amendment to get some measure of agreement on how they will operate going forward. What An Leas-Chathaoirleach: Is the amendment will the panels be able to do? I presume they will being pressed? be advisory. Dr. Henry: No. Mary Coughlan: Yes. Amendment, by leave, withdrawn. Mr. B. Hayes: When will they be established? Section 18 agreed to. Mary Coughlan: They will be established simultaneously on the enactment of the SECTION 19. legislation and will have an advisory role. Often issues will arise where those people will have to Mr. McCarthy: I move amendment No. 7: be brought together and asked what direction In page 20, line 22, after “registrar” to insert they consider should be taken. I will not, nor I “if required to do so”. am sure will the Senator, negate my role as a legislator. Arising from the difficulties that have The purpose of this amendment is to make the been brought to our attention, this action is on Bill more user friendly. The Bill retains a foot of the concerns expressed about the Victorian precept in that it is a requirement that methodology and modus operandi of the General both persons registering a birth must attend a Registrars Office. That requires that we listen, registrar’s office in person. The Minister spoke although it may take some time to deal with the about customer service at some length. The issues. I accept that 1845 is a long time ago, but Minister has enthusiastically taken the we have been able to address many of the opportunity presented by the Bill to modernise concerns spoken and written about. the legislation, and this section presents another opportunity to do so. Mr. B. Hayes: The Minister must be The amendment proposes inserting the words complimented on moving significantly on an “if required to do so”. It would relieve the amendment in regard to death certificates that exacting requirement in this regard. There are she accepted in the other House. That happened many work and family demands on people and it because the legislation was being discussed on the may not always be suitable for both people to floor of the other House and groups had to make an appearance in a registrar’s office. I am submit their views on it. That is not necessarily not sure that requirement is as essential now as it the best way to do business in this technical area. may have been at one stage. I appeal to the To return to the proposal to which Senator Minister to positively consider this amendment. Henry alluded, if we had this type of an advisory body working on a 12 month basis, we would not Mary Coughlan: It is a duty of any parent to be dealing at this stage with dilemmas that arise do what is the most important action on behalf of such as the one to which I referred to in regard a child, namely to register it. Given that we have to death certificates, on which the Minister allowed the registration of a birth in any moved as a result of some media publicity and registrar’s office, it is an important and 855 Civil Registration Bill 2003: 18 February 2004. Committee Stage 856

[Mary Coughlan.] a birth before the mother goes home through the imperative duty on parents that they appear Department of Health and Children. This is also before the registrar to authenticate the identity of very important. Every effort is being made to their child. It is important that the information is ensure we provide a service to the customer but absolutely accurate. As Members will be aware, we all agree that registration of a child is one of any inaccuracy in a person’s birth certificate the most fundamental things a parent should do. could create great difficulties for him or her in The failure to register a child would have serious future life. To make the obligation optional consequences because one’s registration details would undermine the importance of the are used for absolutely everything. I am sure registration of the birth of a child. some Members still deal with cases in which Under section 19, we have facilitated a births were never registered, thus resulting in situation whereby a qualified informant can also considerable hassle over inheritance, land, etc. participate in the registration of a birth where the Therefore, registration is the most important duty parents are dead or incapable through ill health of parents, apart from caring for the child. I of complying with this subsection, unless he or believe we have facilitated many of the concerns she reasonably believes another qualified of modern life. informant has complied with it in regard to the birth. Those are the only exceptions made with Amendment, by leave, withdrawn. regard to the registration of a child. In the main, most people are quite excited and Mr. McCarthy: I move amendment No. 8: anxious to register their children fairly quickly. In page 20, after line 45, to insert the Given the importance of a birth certificate, there following subsection: is a duty on parents to go before the registrar to register a child. By facilitating and modernising “(4) Where a child is born in a vehicle or the methodology by which that can be done, this vessel in transit from one place to another facilitates the registration. For example, a couple and the precise place of birth cannot be can register a child’s birth at any registrar’s office. identified, the place of birth to be recorded In the past, if a couple’s child was born in Dublin shall be that of the townland or civil parish and the couple came from Offaly, they had to concerned, or other identifiable geographical register the child in Dublin. That has been done area concerned, or if that cannot be away with. One will now have three months to ascertained, either the place of departure of register a child whereas it used to be 42 days. We the vehicle or vessel or the place of arrival, have certainly addressed the concerns that as may be specified by the informant,”. existed, while appreciating the pressures people This amendment is the result of a recent case in are under. It is a fundamental duty of a parent to which the registrar produced a birth certificate register a child and to be present for the for a child born in an ambulance that specified registration. the place of birth as a road between two named destinations. This is wholly unsatisfactory for very Mr. McCarthy: I appreciate what the Minister obvious reasons. My amendment proposes a is saying but not everybody shares the view she number of alternatives to registering a child in articulated that registration of a child is a this manner, which is not acceptable by today’s fundamental duty. Unfortunately, some may not standards. In the case in question, a reference to even consider a wide range of fundamental issues a townland may have been appropriate, as although they may be as serious as the Minister opposed to a road between two destinations. If stated. the Minister accepts my amendment, it will at Good customer service would involve a least provide that an identifiable location be recognition that people may not be in a position included in the birth certificate as the place of to be present at registration. I accept that being birth. I appeal to her to consider it. present at the registration is a very important duty of any parent but there are cases in which Dr. Mansergh: Without prejudice to the merits it might be impossible, or almost impossible. In of this amendment, I am irresistibly reminded of recognition of good customer service and the Oscar Wilde’s The Importance of Being Earnest, many ways in which information can now be in which a baby was found in a handbag in a relayed, and given the prompt service and London railway station. That is the way it was resources available, the Minister should consider worded. this matter in the context of customer service in her Department, to which she referred, and Mr. B. Hayes: We do not have the resources perhaps in other contexts in the future. the Senator has.

Mary Coughlan: In modernising the facility we Mary Coughlan: Normally, births occur in a have also extended the opening hours, thus hospital or a home — these are easy to determine appreciating that some may not be able to — but there are instances, such as that alluded to register their children during work hours. Linked by Senator McCarthy, in which a child is born to this is the fact that, in the larger maternity in transit between two places. In the main, the hospitals, we can now facilitate the registration of townland would be included as the place of birth 857 Civil Registration Bill 2003: 18 February 2004. Committee Stage 858 in such cases. In the particular case to which I know the Minister referred to the “qualified Senator McCarthy referred, the townland was not informant”, which is fine, and the Bill is quite known. If the townland becomes known, the birth specific that the qualified informant must attend certificate can be amended accordingly. I before any registrar if the parents are dead or appreciate that the absence of a named place of incapable through ill health of complying with birth on a birth certificate can cause difficulties in what is required of them. This would apply where terms of qualifying to play for a football team, be the biological father of the child makes an it Ulster, Connacht, Cork or Kerry. application for guardianship, but he has no right to register the child under this section. Mr. McCarthy: It is much more open than that. This matter will recur as we consider other sections of the Bill. If the section uses Mary Coughlan: Certainly, the normal practice terminology such as “father” and “mother”, we is to use the townland in which the birth occurred. must be very careful regarding our intended purpose. I know we are getting into a complex Mr. McCarthy: From what the Minister stated, area, but I believe we should consider it very I presume a birth certificate can be amended if carefully. As we consider other sections, it will the name of the townland in which a birth takes become far more complicated. place is not known but becomes known subsequently. Dr. Henry: Given that Senator Mansergh quoted Oscar Wilde, why should I not quote Mary Coughlan: Yes. Homer? He stated, “It is a wise child that knows his own father” but it is now a case of its being a Mr. McCarthy: I do not wish to take any steam wise child that knows his own mother. These from Senator Mansergh, but his contribution issues are very important in the Bill. reminds me of a story about the naming of a To add to the Minister’s complications and in street, in which two members of the Garda order that she will have something to talk about Sı´ocha´na apprehended someone who was over lunch after Cabinet meetings—— involved in a brawl in Clanbrassil Street. When the gardaı´ apprehended the individual and Mary Coughlan: We do not get time for lunch. documented the incident, they decided they would be better off moving the suspect to Cork Dr. Henry: ——the daughter of a woman in her Street because neither could spell Clanbrassil 40s had to have a hysterectomy and it was Street. I thank the Minister for her reply. proposed that her mother would have a baby using her daughter’s ova and sperm from the Mary Coughlan: I hope that is not a reflection partner of the daughter. The mother was still on my registrar. married to the girl’s father. If the child was born, the gestational mother, the genetic mother’s Amendment, by leave, withdrawn. sister, would be the parent and the grandfather of the child would be the father. Talk about Question proposed: “That section 19 stand part guardianship: the biological father, the genetic of the Bill.” father of the child, would have no rights to it at all. These are the sort of issues we have to Mr. Minihan: Before we proceed, I would like address. They are complex, as Senator Minihan to say something about section 19 in general, in said. I do not know how they will be sorted out, light of what previous speakers have said. Section but they need to be examined. 19 imposes the primary obligation to register on the parents, but in many instances involving Mary Coughlan: I will have a law degree by the assisted reproduction or surrogacy there is a time I get out of here. The Bill states that an tArd problem defining who are the parents of the legal Chla´raitheoir may conduct or cause to be entity. The Bill, in various sections, refers to “the conducted “such enquiries as he or she considers mother”. What mother are we talking about? Are necessary” to ascertain whether a birth, stillbirth, we talking about the genetic mother who donated death or marriage required to be registered under the egg, the gestational mother who actually gave this Act, or if the repealed enactments, as may be birth or the intended social mother? I presume appropriate, has been so registered. If it has been, we are taking “the mother” to mean the birth mother, but a difficulty arises in cases of it must be ascertained “whether the particulars in surrogacy, for example, where the birth mother relation to it in the entries of the register cannot present herself to the registrar because concerned are correct and complete”. she may have relinquished the right to the child, An tArd Chla´raitheoir may have an inquiry to thus implying that the social mother must present determine registration in a particular case. That herself to the registrar. I am concerned about this. is where the role of an tArd Chla´raitheoir comes I know it is a complex area but, unfortunately, if in. In that inquiry an tArd Chla´raitheoir may this legislation is throwing up complex matters, determine, following that event, whether the we must face up to them and not brush them particulars concerned in the register are incorrect under the carpet. or incomplete. When we get to other sections in 859 Civil Registration Bill 2003: 18 February 2004. Committee Stage 860

[Mary Coughlan.] history is there on the documentation and it this legislation, the assumption is that the mother would resolve all the inquiries. is the biological mother. Mary Coughlan: We have forgotten one Dr. Henry: She is the gestational mother. important person, the child.

Mary Coughlan: She is the gestational mother. Mr. B. Hayes: The child has a right to all The mother is the person who delivered the child. information, father and mother. A father is not a father; he is a person until paternity has been determined. Save in Mary Coughlan: This is not necessarily so, exceptional circumstances, the assumption is that when we go further down the line. The best the man is the father if he is married to the interests of the child are paramount when one mother unless that man relinquishes that right. examines adoptions and all those other issues that He has to be married to the woman ten months have not come to any finality. The precise prior to that and this is the big issue. It will come information the Senator is talking about would go up in section 22. There is no assumption in law to the court and then a determination would be that the man is the father, save that he is married made on parentage. The court would have to to the mother unless he relinquishes that right. make that decision. When this legislation was initiated, a plethora of other issues arose which Mr. B. Hayes: There is no such thing as a will give rise to problems of pre-determination. married father. It has to be proven. We will reach these at a later stage. The power of an tArd Chla´raitheoir is there to make the Mary Coughlan: There is no such thing. There required investigation, linking in to other is DNA and paternity issues, but that is the pre- legislation in determining parentage. I was not determinant problem within law currently. If that aware of that but the cla´raitheoir cu´ nta here is were to be changed in itself, it would create keeping me right on the legal aspects of it. It is assumptions which could be incorrect because complicated, the permutations are there and it initially paternity would have to be proven. will end up as a legal determination by the courts. Senator Henry is right on the basis that it is an assumption that the mother who is carrying the Question put and agreed to. baby was married to a husband who was not the father unless he relinquished the right and was NEW SECTION. the child’s grandfather and also his or her uncle. Mr. Cummins: I move amendment No. 9: Mr. B. Hayes: The Minister is a contortionist In page 21, before section 20, to insert the as well. following new section: Mary Coughlan: Exactly. On that basis one 20.—Parents may opt to have the birth would have to ask an tArd Chla´raitheoir to make details of their child recorded in the Irish a determination. Under the Status of Children language and may opt to have a birth Act 1987, a declaration may be obtained in court certificate issued in the Irish language.”. to determine parentage. That, I would assume, would be part of the inquiry of an tArd This would be a simple request, that parents Chla´raitheoir. It would turn out to be a legal should have the option to have details of their determination on parentage. The judge can make child registered in the Irish language. They may that determination on the instructions of an tArd opt for an Irish language version of a birth Chla´raitheoir. Traditional life was much easier. certificate. It is a matter which should be close to the Minister’s heart. Ta´ blas aici mar gheall ar An Leas-Chathaoirleach: It would seem that an Gaeilge. We spent hours debating an all-party motion in section 22 and section 65 deal with those issues. this House, recently asking that Irish be one of There is no point dealing with them again. the official languages within the EU. This amendment is a simple request for Mr. Minihan: If we are to take on board the 4 o’clock parents to be able to register their statistics given out earlier regarding one third of child in the Irish language and get a births, this reality must be faced up to. Many birth certificate accordingly. It is self-explanatory. inquiries and investigations will be set up to I am hopeful it can be acceded to. I do not see establish who is who. Would it not be simpler if why it cannot be, given the consensus within the in the registration documentation it was covered House on the need for Irish to be an official by starting with the genetic mother and moving language within the EU. If we are doing that and on to the gestational or intended social mother? this cannot be allowed, then it is hypocritical. If that was signed off from the start, there would be no issue because the clear record would be Mary Coughlan: Ar dtu´ sba´ire, ta´ rogha ag na there. They would be giving their consent. The tuismitheoirı´ e´ a dhe´anamh i mBe´arla no´ i 861 Civil Registration Bill 2003: 18 February 2004. Committee Stage 862 nGaeilge. Seo an traidisiu´ n ata´ anseo, go dı´reach, The father of a child who was not married to traidisiu´ n ata´ le fa´il ins na tı´ortha Ceilteacha agus the mother of the child at the date of his or her tugaimid gach tacaı´ocht don teangan ar dtu´ s birth or at any time during the period of 10 ba´ire. Ce´ go bhfuil an rogha ann, ta´ daoine a´balta months before such birth shall not be required an tuarasca´il seo a fha´il i nGaeilge agus e´ a to give information under this Act about the dhe´anamh in nGaeilge. Ar mo thuairim-se nı´ birth. chuidı´onn se´ go dı´reach don teangan ar dtu´ sba´ire The provision allows unmarried fathers who want an ru´ nseoau´ sa´id. Da´ mbeim a´balta e´ au´ sa´id nothing to do with their children a carte blanche chuirfeadh an-bhru´ ar cu´ rsaı´ teicneolaı´ochta, i mo to do as they wish. It gives legal recognition to an Roinn fe´in ar dtu´ sba´ire agus ins na Ranna eile, opt-out that is not in the interests of the child or fosta. Ta´ an co´ ras teicneolaı´ochta in ann e´ a society. I would like to know from where this idea dhe´anamh i mBe´arla no´ i nGaeilge ach nı´lse´ in came. The formulation of section 49 of the Status ann e´ a dhe´anamh da´theangach. Ce´ go bhfuil an of Children Act is much better. It states, in the rogha sin ann, nı´ bheidh me´ a´balta an leasu´ seo case of a child whose parents were not married a ghlacadh. to each other at the date of his or her birth or at any time during the period of ten months before Mr. Cummins: I listened carefully to what the the birth, that no person shall as father of the Minister had to say. She should not cite technical child be required to give information concerning problems as a reason for not accepting the the birth. The words “a person” have been amendment which does not require her to do dropped in the new section. I would like the anything exceptional. This problem can be Minister to put on the record of this House her overcome by technology. It is unacceptable to say rationale in that regard. that to do so is technically impossible. Is the It is important that we, as legislators, say to Minister accepting the amendment? parents, married or unmarried, that they have a fundamental responsibility to be inextricably Mary Coughlan: A parent can opt to register a linked with the development and welfare of their child in the English or Irish language. That option child. Too often, fathers take the easy option. has always existed and we will continue to There are many examples of young women provide it. wanting nothing to do with the man concerned. While I understand that, it is too easy for us to Amendment, by leave, withdrawn. accept this situation in legislation. Section 49 of the Status of Children Act is Section 20 agreed to. probably better than the new section we are debating here today. We have a major Section 21 agreed to. responsibility, when establishing registers, to ensure that fathers and mothers whether married SECTION 22. or unmarried take their responsibilities seriously and ensure, at the very least, that a child knows Mr. B. Hayes: I move amendment No. 10: his or her parents. There are too many examples of people opting out in this regard. We have a In page 22, subsection (1), line 16, to delete responsibility to get this right. “The father of a child” and substitute “A The debate on this legislation in the other person”. House was rushed. The Da´il had no time to The Minister rightly stated earlier that this discuss this section. The great advantage of the section is one of the most controversial of the Seanad is that everyone can speak on Committee Bill. The new section 22 will replace section 49 of Stage and we have a great deal of time to discuss these issues. the Status of Children Act 1987 which redefines who we mean to be an unmarried father and his Dr. Henry: I support Senator Hayes’ rights and obligations therein in terms of comments. It is extraordinarily important for the registering his name on a birth certificate. child that everything possible is done to ensure It is absolutely essential that the rights of the the father’s name is registered at birth. A child are paramount in this debate. We had a distinction exists between the registration of brief discussion on this earlier. Every child born marital births and non-marital births and so a in this country has a right to know his or her difficulty arises from the moment of registration. father and mother. There will always be extenuating circumstances where one of those Mr. McCarthy: I support the case so eloquently parties may not play any role in the child’s life. made by Senator Hayes. We owe it to children Section 22 as currently drafted gives unmarried to include this provision. Access to this type of fathers a cavalier role and provides them with an information is essential. Too often we forget the opt-out and says to them “We have no difficulty current moral entitlements of the child. It is not if you decide not to have your name on the birth good enough that we allow some people off the certificate.” This attitude must be tackled. hook because no legislative framework is in place to ensure they honour their responsibilities. It is Section 22(1) states: difficult to believe such people do not want to be 863 Civil Registration Bill 2003: 18 February 2004. Committee Stage 864

[Mr. McCarthy.] sections? I would have thought that it would available to their children but that is the sad make sense, in the event of there ever being a reality. I urge the Minister to look favourably on challenge on this, that the Minister could point this amendment. to the legislation and state that she has not just stipulated that the name of an individual be Mary Coughlan: We will go into the particulars provided but also that they provide required of matters raised on this amendment when we particulars, as set out in the Schedule. Both come to deal with others. Amendment No. 10 amendments attempt to achieve the same seeks to substitute the words “The father of a objective. child” with “A person”. Acceptance of the My comments in respect of amendment No. 10 amendment would not substantiate or support equally apply to amendment No. 11. I am the Senator’s intention. One would first have to interested that we should move to a discussion of determine what constitutes “a person”. The the section as soon as possible because we only Senator is seeking that “A person who is not have approximately 45 minutes before the end of married to the mother at the date of his or her Committee Stage. entry....”. One cannot use the words “a person” in that regard. I am advised by the Attorney An Cathaoirleach: Our deliberations can be General that the section as currently drafted resumed later. complies with best practice. The inclusion of the words “A person” would not achieve the Dr. Henry: The First Schedule requires the Senator’s intention. The overarching issues could, provision of a considerable number of particulars. perhaps, be addressed in the next amendment. I am concerned that the personal public service number of the father must be provided. I hope this will not deter people or lead them to believe Mr. B. Hayes: Section 22(1) refers to the father that they will be pursued for maintenance money. of the child. What is the distinction between this While the warm feelings remain after someone is and section 49 of the Status of Children Act told he is the father of a child, it might be which states that “In the case of a child whose advisable not to seek people’s insurance numbers. parents were not married to each other at the I do not know if I sound very callous or venal but date of his birth or at any time during the period it might be as well to omit that requirement. of ten months before his birth, no person shall as father of the child be required to give information Mr. B. Hayes: The Senator sounds extremely concerning the birth.”? Is there a difference in practical. the Department’s mindset in respect of section 49 of the Status of Children Act and section 22(1) of Dr. Henry: With the exception of that the Bill? Why are they not the same? requirement, the Schedule seems fine.

Mary Coughlan: Senator Henry has addressed Mary Coughlan: Section 22(1) is written in this matter in her comments on the particulars plain English and refers to the father of a child. which must be provided under the First Schedule. There is a determination there. Quite a number of such particulars are required. If a person does not have his or her PPS number, Mr. B. Hayes: I accept that. it does not deter the registration of the child’s birth. Amendment, by leave, withdrawn. Dr. Henry: The child can still be registered. An Cathaoirleach: Amendments Nos. 11 and 14 are related and may be taken together by Mary Coughlan: Yes. agreement. Is that agreed? Agreed. Mr. B. Hayes: So there is a legal basis for it by Mr. B. Hayes: I move amendment No. 11: virtue of the fact that it is included in the First In page 22, subsection (2), line 21, after Schedule but not the relevant sections. “name” to insert “and required particulars”. Mary Coughlan: Yes. Senator Cummins and I tabled these amendments with a view to including the term “and required Mr. B. Hayes: Is the Minister satisfied with particulars” after the word “name” in subsection that? (2). In other words, we are seeking more information and not just the name. As I Mary Coughlan: Yes. It stands on the Schedule. understand it that is the practice, namely, that As a consequence of this legislation, other people are encouraged to give as much issues are being raised which fall outside its information as possible to go on the certificate. parameters. I am delighted that Senator Brian Why have we not provided for that in the Hayes has agreed that every effort is being made legislation? If it is the practice — it is one which to ensure that two parents register. Senator we would all welcome — why did the Minister Henry referred to warm feelings after someone is not include an explicit reference in the relevant informed he is the father of a child. These people 865 Civil Registration Bill 2003: 18 February 2004. Committee Stage 866 will be facilitated in the maternity hospital or at abdicate their responsibilities. This is another their local registrar’s office and an extension of societal issue about which it would be good to time is provided. If, therefore, something does converse but it falls outside the parameters of this not work out in the early period, there are up to legislation. Just because a man’s name is three months in which a determination may be registered on a birth certificate does not mean made in terms of both parents having their names that he is actively involved in the parenting of the on the birth certificate. child. Having his name registered does not Many people have referred to children’s right bestow on him any rights if he is not going to be to know the identity of their father or — this actively involved in the rearing of the child. concerns a minority of instances — their mother. There are other consequences which arise out There is a great deal of logic to that. It is for this of registration. However, I am happy to see such reason we have had a considerable amount of a high percentage of involvement among men and debate with regard to adoptions and access to women. I appreciate that there are difficulties in that type of information. As Members are aware, relationships, particularly where a woman may we have not reached agreement on that matter not want to have anything to do with the father. but there have been considerable discussions. The There may, perhaps, be reasons for that. It often Minister of State, Deputy Brian Lenihan, is happens, sometimes later in life, that people ask, anxious to bring before the House a new as they are entitled to do, a registrar to amend adoption Bill which, in my view, will have major the registration. A couple of thousand re- consequences for the legislation before us. When registrations take place every year. This indicates that Bill emerges, it is highly likely that the that, perhaps through reconciliation or whatever, legislation on civil registration will have to be people involve themselves more in the rearing of amended as the existing restrictions will remain a child or wish to have their names registered on in place under its provisions because a the birth certificate. determination to change the position has not There will always be cases where people have been made. a personal difficulty or problem. At the end of Statistics show that at Erne maternity hospital, the day, people can have recourse to the courts the father’s name was registered in 91% of births, to establish parentage. We would prefer it if they while in Limerick, 93% registered their names. did not have to go to such lengths, but that This shows that what is understood as a public opportunity is available to people if they want to perception does not actually exist. It is obvious establish their parentage. The court will then that the change has come about of its own making advise an tArd Chla´raitheoir to register the because of the fact that we do facilitate father’s name and details. registration. Quite a high percentage of fathers register their names on birth certificates. Mr. B. Hayes: In how many cases per year would the courts intervene in that way? Mr. Cummins: Unfortunately it is the other 7% or 9% about which we must be concerned. Mary Coughlan: We do not have figures in respect of that matter. Mary Coughlan: I accept there are other issues. There is no presumption in law other than that Amendment, by leave, withdrawn. the husband of a married woman is the father of the child. There can, however, be complex and Amendment No. 12 not moved. complicated relationships where, for example, the mother of the child may not be married to the Dr. Henry: I move amendment No. 13: father but is married to someone else and the In page 23, subsection (2)(d), line 4, to delete person who is the father of the child could be “child.” and substitute the following: married to another woman. “child, Dr. Henry: It has happened. or

Mary Coughlan: It is the reality. There are (e) declare that they are the mother and sensitive and difficult situations with which we father of the child concerned or the must deal. There are other situations where the prospective parents of the child yet unborn father would be genuinely unknown. That is and make a statutory declaration to that another fact of life. effect containing the required particulars The high percentage of registration by both needed to register the birth or stillbirth as parents on birth certificates is good and the case may be.”. important and we are facilitating it. Whether it is We are all agreed by now that it is a good idea reflected in other responsibilities is another that a child should know his or her paternity. Can matter. Members will agree that in the main, save we include a provision to accommodate in exceptional circumstances, the inclusion of two unmarried couples where, for example, a non- parents is the best and most beneficial way of national father who plans to leave the State can rearing a child. However, we know in our hearts make a statutory declaration acknowledging and souls that people, be they men or women, paternity of a child or stillborn child to be? A 867 Civil Registration Bill 2003: 18 February 2004. Committee Stage 868

[Dr. Henry.] Mr. B. Hayes: It has been brought to my father could be registered as the father of a child attention that there may well be a handful of on the basis of such a declaration. cases in which estranged fathers can be prevented from re-registering on the basis of a very violent Mary Coughlan: That cannot be done until the relationship. There is no basis in law, which child is born. means the information can be openly obtained by him. Amendment, by leave, withdrawn. Mary Coughlan: The information is a matter of Section 22 agreed to. public record.

SECTION 23. Amendment, by leave, withdrawn.

Amendment No. 14 not moved. Section 23 agreed to.

Mr. B. Hayes: I move amendment No. 15: SECTION 24.

In page 25, between lines 21 and 22, to insert An Cathaoirleach: Amendment No. 17 is the following subsection: consequential on amendment No. 16 and both “(9) When the person to whom section amendments may be discussed together. Is that (2)(d) applies makes a request to a registrar agreed? Agreed. under that provision, the registrar shall notify the mother of the request before re- Mr. McCarthy: I move amendment No. 16: registering the birth.”. In page 25, line 26, after “1931” to insert “as Section 23 makes provisions on re-registration. I amended by subsection (2).” have been advised that Senator Henry is more Amendments Nos. 16 and 17 seek to correct what expert on this matter than me and I will let her appears to be an outdated provision in section 1 come in on it. I may have been advised of that of the Legitimacy Act 1931. The provision inadvertently, however. operates to legitimise children whose parents The intention of amendment No. 15 is to insert subsequently marry only if the father is domiciled a new subsection (9) to make provisions in in the State. There appears to be an inappropriate respect of a re-registration some years after the form of discrimination in the provision. I ask the birth. The registrar would be obliged to notify the Minister to consider the amendments positively mother of a request before re-registering the in view of that fact. birth. We are all aware of a number of tragic cases which have come before the courts. Are Mary Coughlan: As the Senator has rightly there circumstances in which it would be said, the section provides for the re-registration advisable to provide that a mother should be of a child legitimised by his or her parents entitled to know if someone was attempting to re- marriage to each other. Section 1(1) of the register? The Minister may well tell me that the Legitimacy Act 1931 provides for the legitimising mother is entitled to know as the law stands. of a person where his or her parents marry each However, there are some tragic cases in which other and the father of the illegitimate person is, it would be advisable to ensure that a mother is at the date of marriage, domiciled in the State. informed if a re-registration application is made The amendment seeks to provide that either the by a father or a person alleging to be the father. father or the mother of the child is domiciled in Examples include circumstances in which there is the State at the date of marriage. As this proposal violence in a relationship or other legal does not relate to the re-registering process difficulties. Have the Minister and her officials covered under this section, it is not proposed to considered this matter in the context of section accept the amendment as appropriate for 23? inclusion in the legislation.

Dr. Henry: Will there be double indexation of Mr. McCarthy: I accept what the Minister said. surnames, in particular, if a child is re-registered? The relevance of the Legitimacy Act 1931 could That could be very important from the point of be called into question. This is clearly the case in view of the father, the mother and members of terms of attempting to legitimise children after the extended family who wished to look the the parents get married. It may not be a matter names up in future. to be considered in the context of the legislation before us, but it points to the inadequacy of the Mary Coughlan: Double indexation will Legitimacy Act 1931. happen. A father is entitled to have all his details on certificate whereas Senator Brian Hayes is Amendment, by leave, withdrawn. referring to cases in which a mother would not wish to have a father’s name on the register. That Amendment No. 17 not moved. cannot be prevented under the Status of Children Act. There is an automatic guarantee. Section 24 agreed to. 869 Civil Registration Bill 2003: 18 February 2004. Committee Stage 870

NEW SECTION. Mary Coughlan: That restriction was in the legislation in 1980 but was taken out sometime in Mr. B. Hayes: I move amendment No. 18: the 1990s. I think this would be very restrictive. We give people a once-off opportunity to change In page 26, before section 25, to insert the the forename. As the Deputy knows, a year is following new section: quite a short period and it was considered 25.—(1) The State shall endeavour, insofar restrictive in the 1990s, so it was removed. Maybe as is practicable, to ascertain and register the it was a Fine Gael Minister who removed it. I am name of the birth father at the time of not quite sure. registration of a birth. Mr. B. Hayes: There were not too many of (2) Nothing in section 23 or 24 shall them at that time. prejudice or restrict the right of a child to ascertain his or her birth father.”. Mary Coughlan: The provision was considered This amendment represents an attempt by Fine somewhat unnecessary and slightly restrictive, Gael to include a new section to encompass the and it was decided to take it out. Reintroducing aspirations of every Member of both Houses of it might not serve much purpose. the Oireachtas. It seeks to ensure that nothing the State ever did would stop a father registering his Amendment, by leave, withdrawn. name on a birth certificate. I am sure the Minister will tell me a father already has this right. This An Cathaoirleach: We will take amendments new section would be useful particularly in the Nos. 20 and 21 together by agreement, as context of sections 22 and 23. Inclusion of the amendment No. 21 is an alternative to new section as an overarching protection would amendment No. 20. be seen by many men as a validation of a man’s right to include his name on a birth certificate. Mr. B. Hayes: I move amendment No. 20: The provision is copperfastened in subsection (2) which states that nothing in sections 23 or 24 shall In page 26, subsection (2), lines 39 to 43, to prejudice or restrict the right of a child to delete all words from and including “in” in line ascertain his or her birth father. The Minister will 39 down to and including “to” in line 43. probably tell me the right already exists. We are suggesting the removal of five lines from subsection (2) because there is no necessity for Mary Coughlan: It does. them. Subsection (2) states that where a forename is changed, altered or registered, or one Mr. B. Hayes: While the right may already or more forenames are added under subsection exist, the wording of our new section is better and (1), the then existing entry concerned shall be clearer. That is all I have to say about that matter. retained. Why is there a need to add the remaining five lines? They have no purpose. We Mary Coughlan: That is one-nil to this side. ask the Minister to consider the amendment in The right is established. that context.

An Cathaoirleach: Is the Senator happy with Mr. McCarthy: Amendment No. 21 is an effort the right? to remove part of the bureaucratic straitjacket attached to the Bill. I am also led to believe there Mr. B. Hayes: I accept the Minister’s word on was no provision to change a forename once it it. has already been changed. I appeal to the Minister to remove the bureaucratic straitjacket Amendment, by leave, withdrawn. and accept the amendment. That would make history. SECTION 25. Mr. B. Hayes: Remove the verbiage. Mr. B. Hayes: I move amendment No. 19: Mary Coughlan: The amendments seem In page 26, subsection (1), line 28, after “like contradictory because one of them called for a 12 effect”, to insert “made within 12 months of the month straitjacket. registration of the birth”. It has been suggested to us that it may be sensible Mr. B. Hayes: That is the beauty of Opposition. to put a restriction on the time length during which people can make the alteration — up to Mr. McCarthy: There was a timeframe and a 12 months from the registration of a birth. The clothing issue involved. argument put to us is that this sort of provision would constitute good record-keeping. I am Mary Coughlan: This is a once-off opportunity interested in the Minister’s views. As currently to either amend or change or complete a birth worded, there can be an alteration at any time. registration, for example where the name which Would that not be open to abuse in the future? is not originally registered is, for example, in 871 Civil Registration Bill 2003: 18 February 2004. Committee Stage 872

[Mary Coughlan.] Cla´raitheoir at the time, not to amend an entry common usage. That happens on a number of in the register of births following an application occasions. from a person who had undergone gender If I were to accept this amendment, it would reassignment surgery. The High Court declined result in the possibility of multiple changes of to grant the application. The judgment noted that forenames with resulting degradation of the birth the applicant raised many personal complex record. I have said that there should be only one social, ethical and legal issues. I understand that opportunity to make the change. If we were to the High Court decision has now been appealed remove what the Deputy referred to as the to the Supreme Court, and pending the outcome verbiage, one could change the name on a of the appeal and the enactment of the provisions continual basis, and that would not be of this Bill, I am not currently in a position to appropriate. That is why the additional five lines accept the amendment. We must await the are there among the seven. decision of the Supreme Court.

Amendment, by leave, withdrawn. Mr. McCarthy: Even if the Supreme Court upholds the High Court decision, I urge caution Amendment No. 21 not moved. in this regard, because we are dealing here with a powerful European instrument. If this State Mr. McCarthy: I move amendment No. 22: were to violate the European Convention on Human Rights, it would be shameful. I accept In page 26, between lines 43 and 44, to insert that the Minister is following due legal process on the following subsection: this, but it is only a matter of time before the “(3) Where a person whose birth is European Court of Human Rights will rule that registered as being of a particular gender, this country is in dereliction of its duty, despite subsequently undergoes gender having signed up to the convention and having reassignment surgery and produces a fulfilled obligations thereunder. Even if the certificate in a prescribed form from a Minister will not accept the amendment, I urge registered medical practitioner to the effect her to be cognisant of the situation. If the that the person’s gender has now altered Supreme Court upholds the High Court ruling, from that stated on his or her birth what action will the Minister take? certificate, the birth may be re-registered with particulars of the person’s gender at the Mary Coughlan: I prefer not to pre-empt the time of re-registration.”. Supreme Court decision. I would not dare to do We know this Bill covers wide-ranging areas and so. Once we get the decision, we will determine is sensitive in parts. The purpose of this what to do. The action taken by the European amendment is to address a defect in the law Court of Human Rights pertained to marriage currently for a small number of people who and its inter-linking with the birth certificate. undergo gender reassignment surgery. Currently, That is being investigated and considered by the such people are forced to live with birth inter-departmental committee on marriage certificates denoting their original gender for the reform currently working. It is best to await the rest of their lives, with no provision for change. Supreme Court ruling before any further decision This is an unsatisfactory situation for such people, is made. and the amendment provides the necessary legal protection. Amendment, by leave, withdrawn. The European Court of Human Rights has Section 25 agreed to. already issued a warning regarding this kind of legislation. It recently ruled that failure to make Sections 26 to 42, inclusive, agreed to. provision in law for transsexuals is a breach of the European Convention on Human Rights. If NEW SECTION. we do not take action in this area, we will hear about it from the powers that be in Europe. A Mr. B. Hayes: I move amendment No. 23: ruling will be made against it. I am interested to hear the Minister’s response. It is important that In page 36, before section 43, to insert the Ireland, which has signed up to the convention, following new section: would actively lead from the top. If we do not act 43.---The date of birth of a dead person soon, it is only a matter of time before a ruling is shall be recorded on the death certificate.”. made against the legislation by the European courts. Section 43 refers to the place of death and the circumstances involved. We suggest that the date Mary Coughlan: The registration of a birth is of birth of a dead person shall be recorded on a designed to record personal details as they death certificate. pertain at the time of birth. The issue of the I was not aware that was not the case. amendment of the birth certificate following On Second Stage the Minister informed me gender reassignment arose in an application for a that going forward there would be a cross- judicial review of a decision of an tArd- tabulation between people who die and their 873 Civil Registration Bill 2003: 18 February 2004. Committee Stage 874 birth certificates. I raised an issue with the (ii) in the case of a person who has Minister that had been brought to my attention resided outside of the jurisdiction for at in that it was still possible to obtain, for illegal least three months preceding the date of purposes, birth certificates of people who had marriage, whose place of residence has no died and she said, in the course of her reply, that Irish diplomatic representation, not less from cross-tabulation in the future she would be than 1 day (or such lesser period as may able to clamp down on that. be determined by that registrar)

Mary Coughlan: That is right. before the date aforesaid and make and sign a declaration in his or her presence that there Mr. B. Hayes: That led me to table this is no impediment of kindred or alliance or amendment whereby we suggest that the date of other lawful hindrance to the said birth of a person should be recorded on the death marriage.”. certificate. It would certainly help in terms of that This amendment concerns people who are cross-tabulation. residing in another country coming home to be married. The five days restriction is practical. Dr. Henry: I support Senator Hayes. This is These people should be allowed go to an embassy very important. There are many Mary Henrys or consulate and do what is necessary. What we and it might be as well if they had my date of suggest in this regard is self-explanatory. We are birth when they are certifying my death in case foreseeing difficulties that may arise in such they confuse me with someone else. circumstances and we would welcome the Minister’s opinion on it. This matter was raised Mr. Cummins: I support this amendment. We in the other House and we felt it should be raised have accepted the provision on the place of birth here because we foresee practical difficulties if and the date of birth should also be included for the section is left as it is. the reasons outlined by Senator Brian Hayes. It should not pose a major difficulty. I hope the Mary Coughlan: Provision is being made in the Minister accepts the amendment. Bill to facilitate couples working or living abroad. Mary Coughlan: The Bill now provides for the They can notify the registrar under the prescribed date of birth or age last birthday of the deceased form by post. They can submit any other required to be entered in the register. The Senator is right. documentation, for example, a divorce decree, by Going forward we will be able to cross-tabulate post but they must attend a registrar’s office a from a control point of view. minimum of five days prior to the date of the intended marriage to produce the identification Mr. B. Hayes: The Minister accepted it in the and to sign a declaration of freedom to marry. other House. Where a couple is unable to meet this requirement due to exceptional circumstances, Mary Coughlan: If the Bill were here first, I special arrangements can be made by agreement would have accepted it. with the registrar. We can all appreciate that something might happen, and that can be Mr. B. Hayes: I just thought I would ram home facilitated. the point that we got one amendment accepted. In addition, it is proposed that the designated registrar’s office will be open late one evening Amendment, by leave, withdrawn. each week to provide an expanded service for our customers. All marriage notification details, Section 43 agreed to. including the couple’s signatures, will be captured electronically and this can only be done now by a Sections 44 and 45 agreed to. personal attendant at the registrar’s office. We will certainly facilitate people as best we can. The SECTION 46. couple’s electronic signature will be used for comparison purposes with those on the marriage Mr. Cummins: I move amendment No. 24: registration form when the marriage is being In page 37, subsection (1), lines 23 to 29, to registered. delete paragraph (b) and substitute the It is a principle of international law that following: couples wishing to marry outside their country of residence must comply with the marriage laws of “(b) attend at the office of that registrar, the country where the marriage is to take place. or at any other convenient place specified by We are all aware of that happening. Given the that registrar, including an Embassy or significance of marriage to the couple in society, Consulate of the State, at any time during it is not unreasonable to require a couple to normal business hours—— attend a registrar’s office in person to complete (i) not less than 5 days (or such lesser the civil preliminaries for marriage. It is an number of days as may be determined by intrinsic part of making all necessary that registrar), or arrangements for the marriage. 875 Civil Registration Bill 2003: 18 February 2004. Committee Stage 876

[Mary Coughlan.] Dr. Henry: Does the declaration five days I consider that adequate provision is included before make up for the fact that no one says in the Bill to cater for couples resident outside anything? Section 51 states that the two the State who wish to marry in Ireland. That people—— flexibility is being given to the registrar. Mary Coughlan: This is a totally different Mr. Cummins: Is the Minister saying the measure. This is to provide for the three months’ registrar has discretion to dictate for special notification. The other issue is dealt with in circumstances that may arise? section 51 and we will deal with it when we get to that section. Mary Coughlan: Yes. The local registrar would be aware of something happening. If, say, there Dr. Henry: I thank the Minister. was a death, an accident or whatever, the registrar, who would be local and would most Amendment, by leave, withdrawn. likely know the person, would be able to facilitate him or her. Mr. McCarthy: I move amendment No. 25: In page 37, subsection (4), line 37, after Mr. B. Hayes: However, that does not extend “marriage” to insert “, provided that where a to consular or embassy services abroad. marriage takes place in contravention of those provisions in circumstances where the parties Mary Coughlan: No, it does not. As I said, the believe in good faith that one or both of them signature has to be made with our registrar. We is in danger of death, and the parties or either talk about a minimum of five days and of them or the person or the person celebrating circumstances may arise where documentation the marriage proves the existence of such belief may not be correct, for example, and that would to the satisfaction of the Circuit Court, which have to be dealt with. That is the reason we are application may be made after the celebration providing for a minimum of five days. That is the of the marriage, the said subsection shall not framework we are looking at, for example, if apply”. somebody forgot something or needed to come back with something else. It might be a bank In 1995 the rainbow Government introduced the three months notification period. Naturally there holiday, and many people get married on bank was a commitment to this and it appears to be a holidays or on Sundays in some areas. These good idea in principle. However, there is the things happen and we are providing contingencies difficult case in marriages where one of the for them but it is felt that it is best that the person partners is in imminent danger of death. While in would appear before the registrar to ensure that principle it is possible to get an exemption from all the documentation is correct. A consular a Circuit Court judge, this may not be possible in would not be adept at dealing with many of the a very limited number of cases and this permutations and considerations that a registrar amendment makes provision accordingly. I might face and it would be unfair to expect that. recognise this is an inherently difficult area. If exceptional circumstances arise where people are coming home to get married, the registrar Mary Coughlan: This section does deal with a would usually facilitate that. I know from a good notification of marriage and the requirements set deal of experience that the mother usually has to out in subsections (1) and (2) of section 46 are sort it out, for some reason or another, and that substantive requirements for a valid marriage. will be facilitated. Provision is made in the Bill for an application to the courts for an exemption to the three month Dr. Henry: I presume this is the section which notification requirement, as Senators will be makes everything all right for the Church of aware. However, where special or exceptional Ireland service in section 51, where the two circumstances arise, the party can arrange with people are required to say if there is any the registrar a place and time convenient for impediment to their marriage. In the Book of completion of the civil preliminaries for the Common Prayer, the minister says to the couple: marriage and the issue of the marriage registration form. In those circumstances, the The vows you are about to take are to be registrar has the flexibility to facilitate a couple made in the name of God, who is judge of all and determine a time and place to deal with the and who knows all the secrets of our hearts. legalities. The flexibility is there to facilitate those Therefore if either of you know any reason why unfortunate circumstances. you may not lawfully marry, you must declare it now. Amendment, by leave, withdrawn. Nothing used to be said, so I presume it is this Section 46 agreed to. declaration—— Amendment No. 26 not moved. Mary Coughlan: No, it is not. Section 51 will deal with that. Sections 47 and 48 agreed to. 877 Civil Registration Bill 2003: 18 February 2004. Committee Stage 878

SECTION 49. a regulation, when there may be no necessity for it. It is only an enabling provision for the Minister Mr. McCarthy: I move amendment No. 27: for Health and Children in the advent of the need In page 40, subsection (6), line 36, to delete for a regulation. Does that explain the matter? “may” and substitute “shall”. Mr. McCarthy: We may raise the matter on This amendment is self-explanatory and one that Report Stage. appears in various Bills. The difference between “may” and “shall” is very weak. There are Amendment, by leave, withdrawn. different implications for both words. 5 o’clock Given that the Bill is weak, the Section 49 agreed to. amendment would give the Minister discretion as to whether to allow correction of Section 50 agreed to. errors. There is a belief in some quarters that there must be a provision for correction of errors. NEW SECTION. It is a semi-technical amendment. Mr. B. Hayes: I move amendment No. 28: Mary Coughlan: Subsection (6) of section 49 makes provision for the Minister for Health and In page 42, before section 51, to insert the Children to make regulation for the correction or following new section: errors in the register of marriages. It gives the “51.—(1) Where a person is formally Minister discretion on whether he wants to granted guardianship of an infant, the details regulate on the matter. In the interests of better of the guardianship shall be entered in the regulation, the need to regulate it is carefully register of guardianship. analysed to prevent creating unnecessary legislation. It is in keeping with the practice to (2) Persons who acquire guardianship shall allow for discretion on the matter. In the furnish all details of such guardianship, circumstances it would not be appropriate for the together with all necessary documentation to Minister to be obliged to make a regulation. It the Civil Registration Service as soon as may gives the Minister the facility to make regulation be after the event.”. if needs be, but he is not obliged to do so. If the word “shall” is introduced he would have to make Amendment put.

The Committee divided: Ta´, 24; Nı´l, 23.

Ta´

Bannon, James. Higgins, Jim. Bradford, Paul. McCarthy, Michael. Browne, Fergal. McDowell, Derek. Burke, Paddy. McHugh, Joe. Norris, David. Burke, Ulick. O’Meara, Kathleen. Coghlan, Paul. O’Toole, Joe. Coonan, Noel. Phelan, John. Cummins, Maurice. Ross, Shane. Feighan, Frank. Ryan, Brendan. Finucane, Michael. Terry, Sheila. Hayes, Brian. Tuffy, Joanna. Henry, Mary.

Nı´l

Bohan, Eddie. Mansergh, Martin. Brennan, Michael. Minihan, John. Daly, Brendan. Mooney, Paschal C. Dardis, John. Morrissey, Tom. Dooley, Timmy. O’Brien, Francis. Feeney, Geraldine. O´ Murchu´ , Labhra´s. Fitzgerald, Liam. O’Rourke, Mary. Glynn, Camillus. Ormonde, Ann. Kenneally, Brendan. Phelan, Kieran. Leyden, Terry. Scanlon, Eamon. Lydon, Donal J. Wilson, Diarmuid. MacSharry, Marc.

Tellers: Ta´, Senators U. Burke and McCarthy; Nı´l, Senators Glynn and Minihan. 879 Revenue Commissioners: 18 February 2004. Motion 880

Amendment declared carried. Minister for Finance, who is now Taoiseach, that the enforcement provisions contained in the 1993 Progress reported; Committee to sit again. Act would be rigorously applied in the future. The Act set out in detail tranches of liability Revenue Commissioners: Motion. for those people who failed to make a proper declaration, made an improper declaration or Mr. McDowell: I move: who did not use the amnesty. It stated that such That Seanad E´ ireann notes: people could and should be prosecuted. The amnesty was not voluntary — people who had 1. the very small number of criminal unpaid taxes in 1993 were obliged by it to pay up, convictions secured by the Revenue with a decent discount, and to come clean. Commissioners in relation to tax offences; Failing to do that was, and remains, a criminal 2. the apparent reluctance on the part of offence and should have been prosecuted as such. the Revenue Commissioners to have That is why it is difficult to understand why, revenue related offences prosecuted in based on the response the Minister for Finance the courts; gave yesterday in the Da´il, there has not been a single successful prosecution for failure to comply 3. the failure in particular to seek or with the 1993 amnesty. Section 9 of the Act has secure convictions for offences arising out never been used in the courts although there are of the 1993 tax amnesty; tens of thousands of people who did not comply therefore calls on the Government to take with the terms of the 1993 amnesty. Tens of whatever action that may be required to thousands of people who had bogus non-resident ensure that the law is effectively enforced, accounts did not comply with the amnesty and including, if necessary, the transfer of thousands of them also did not comply with the responsibility for the prosecution of offences 2001 voluntary disclosure scheme. I have every to a body other than the Revenue sympathy for the small business man who lets his Commissioners. VAT deadline slip by a couple of months but I This motion deals specifically with prosecutions have no sympathy for people who have been arising from tax evasion. The resolution makes given the benefit of statutory schemes not once three points: that the provisions of the tax but twice to come clean. They have not just failed amnesty that were to act as a stick have not been to do so, they have refused. enforced as rigorously as they should have been The Labour Party believes that such people and even now, 11 years later, they should be more should be prosecuted and pursued through the rigorously enforced; the general powers of the courts not just to get back the tax, but “pour Revenue Commissioners to institute criminal encourager les autres”, in the words of Marie prosecutions have not been used as often or as Antoinette. Criminal prosecutions act as a serious rigorously as they should and that they should be deterrent to those who would evade tax. The used more often in future than is currently the penalties and interest are hefty but in cases of case; and if the Revenue Commissioners do not serious evasion, there should be prosecution have the will power or are unable to do this, we through the courts. It is remarkable that has not should allow other State bodies, such as the happened. Garda, the CAB or others, to do it The Minister for Finance said in the Da´il yes- We are not talking about the small man making terday that it had not happened in amnesty cases an innocent mistake or pushing small businesses as a result of the confidentiality requirement of to the wall if they are a couple of months late the 1993 amnesty. The Minister knows that the with their VAT returns. This resolution is about 1993 Act also provides for an investigating officer serious tax evasion and those who consistently of the Revenue Commissioners to go to the ap- develop schemes to evade tax and defraud the peal commissioners to seek permission to go be- Revenue Commissioners and the taxpayer. We hind the confidentiality certificate issued by the are talking about people who take it for granted Revenue Commissioners in circumstances where that they, and they alone, are entitled to freeload there are reasonable grounds for believing some- on the services paid for by the rest of us — people one has not made a full declaration. It is remark- who are criminals and should be treated as such able that they have done so in only 20 cases and and prosecuted. that in almost two thirds of those cases, they were I acknowledge the political background to the not successful. It is also remarkable that they tax amnesty. The Labour Party was in power with have tried to do so in so few cases and, although Fianna Fa´il when the amnesty provisions were I do not know the details of the cases that failed, introduced in 1993. I was on the Government that the success rate is so low. It is unacceptable. backbenches at the time and many in the Labour I read the Revenue Commissioners report for Party were unhappy with the tax amnesty then 2002 and it sounds strong on the issue, stating that and have become even more unhappy about it it is policy to prosecute cases, particularly high since. It is important, however, to remember that profile cases. It gives examples of the cases where we voted for it because we knew the Exchequer it would be appropriate, such as the use of forged was not as bountiful in tax resources as it is now or falsified documents, systematic schemes to and because we were reassured by the then evade tax, false claimants for repayment, failure, 881 Revenue Commissioners: 18 February 2004. Motion 882 as distinct from minor delays, in remitting a monetary one. The Revenue would seek to fiduciary taxes and deliberate and serious encourage people to move in that direction. omissions from tax returns. However, I am strongly of the view that there On the face of it, that policy is fine but it does needs to be a balance in this regard. While that not sit comfortably with the experience of so few approach might be good in most cases, it is not successful prosecutions. The number of cases good in all, and it is necessary to make an investigated in the last six years ranged from 18 example on occasion by foregoing the civil to 30 in any given year. Of those, three or four penalty and going down the road of criminal per year were successfully prosecuted before the prosecution. courts, giving a total of 21 for 1997-2003. In those I acknowledge that the Revenue in recent years cases, around half received a custodial sentence has very much sharpened up its act in terms of and, of those custodial sentences, half were special investigations. A great deal of money has suspended. The number of people who wound up been brought into the Exchequer as a result of serving time in jail was an average of less than the special investigations carried out into the one per year. scandals that came to light during the course of That does not sound like an aggressive policy the 1990s. I refer to Ansbacher Cayman, NIB and of prosecution; it sounds like a lenient policy. If so on. The total take from those various it is the case that the Revenue Commissioners are investigations is approximately 1,000 million or a pursuing a lenient policy and do not feel little less. Those investigations have sent out the comfortable or see it as a priority to prosecute, right signal. That they have been carried out quite they should say so. They should come out and rigorously, in so far as we can judge from the say their primary purpose is to raise money, to outside, has made it clear to people, who might maximise the take to the Exchequer and that have been inclined in the past to hide their money when it comes to prosecuting people in the offshore, that offshore is no longer out of sight, criminal courts, they do not want to be a part of beyond the reach of the Revenue Commissioners it and somebody else should do the job. If that is or, for that matter, beyond the reach of Irish law. the case, the Garda or CAB should do the job, or Good work has been done in this regard and it they need a specialised unit within the Revenue would be churlish of me not to acknowledge that Commissioners to do it. I accept that Revenue the Revenue has done a fine job in recent years will still have to do most of the investigating but, in this area. nonetheless, the prosecution should be The resolution we propose to the House is undertaken and dealt with elsewhere. However, specifically on the issue of criminal prosecutions. it must happen on a far more widespread basis It is to make the point, and I again make it than is the case at present because the deterrent forcefully, that in dealing with amnesty cases, in factor is important. particular, and some high profile cases, of which The Minister of State might say that in cases we are all aware, this is a road which also must such as this there are a number of legal problems, be taken. and I acknowledge there are. In cases where people have not paid their taxes, the primary Ms O’Meara: I second the motion. penalty is the interest and the civil penalty they I wish to pick up on a point Senator McDowell pay. In terms of the monetary loss, in all cases, made regarding the efficiency of the Revenue. the penalty imposed on the individual concerned Nobody could argue with the fact that the is likely to be far higher than any fine they might Revenue Commissioners have become far more have to pay. Nonetheless, there is an importance efficient in their role in collecting taxes due to the in prosecuting. Whatever about the shame of Exchequer and the State from the myriad sources having one’s name printed in a newspaper for from which they need to be collected. One must having made a settlement over a certain amount, commend them on that. However, the efficient there is a far greater shame and stigma attached collection of taxes is only one of the roles of to prosecution and to being convicted in the Revenue. courts. It is necessary for the Revenue to take a In recent times I have received serious view on occasion that what should be done in a complaints from two accountants who have particular case is to secure a criminal conviction. complained to me as a public representative that If that means delaying pursuing the matter of civil they have found it difficult, particularly in the penalties, that is what should be done because it past year or two, to deal with the Revenue in needs to be done simply on the basis that it is regard to employers, in particular, attempting to a deterrent. get their affairs settled by the end of the year. There is an issue of self-incrimination. I was They are experiencing difficulty with Revenue interested to hear what the Minister said on this officials coming back to them; they have to make issue in recent days. In effect, he said that if a endless telephone calls, points have to be checked person makes a voluntary full disclosure, he or and so on. I would like to Minister to consider she is immune from prosecution. I understand those complaints in the context of compliant that argument. It would encourage people to taxpayers, people who want to ensure their make a voluntary full disclosure if they can at employees have full cover and that their least be assured that they will not be prosecuted responsibilities as employers and taxpayers are through the courts and the penalty will be simply fully met. We must remember that the vast 883 Revenue Commissioners: 18 February 2004. Motion 884

[Ms O’Meara.] offender, negotiations are entered into and there majority of people are compliant taxpayers. is a settlement. In other words, it is a case of Hopefully, the culture of tax evasion and the getting the money in whatever happens, and that sense in past years that it was a good thing to get should be the case because the State and away with not paying tax is gone and that culture members of the public are entitled to have such has at least faded. tax revenue and to know that what is required to The subject of this motion is worth exploring. be paid is being paid. However, the issue of the We are questioning whether the Revenue pursuit and prosecution of offenders is extremely Commissioners are carrying out their other important and there is no doubt that there is a function of the effective prosecution of offenders, sense abroad that it is not being pursued as a role they play on behalf of members of the actively as it could be. It will have to be asked public, which we, the legislators, have given them whether it is part of the culture of the Office of to ensure that tax offenders are properly the Revenue Commissioners to do so. When one investigated and prosecuted. considers the Criminal Assets Bureau, for In the change of culture that has occurred example, although the context is entirely around the issue of taxation in the past 20 or so different, one will note that the establishment of years, it is necessary to have a sense that this single, dedicated unit to pursue a particular Revenue, in acting on our behalf, is doing so in a set of offenders has not only been highly way that ensures that compliant taxpayers are effective, but has also resulted in a public fairly and efficiently treated and that the full perception that there is a serious commitment on rigours of the law are reflected in the outcomes the part of the State and Legislature to ensure in respect of those who do not comply. Hence, that those offenders are prosecuted. the strong powers given to Revenue when the tax amnesty legislation was passed, to which my Dr. Mansergh: I move amendment No. 1: colleague, Deputy McDowell referred. To delete all words after “Seanad E´ ireann” There is a sense in the public domain that and substitute the following: somehow tax offenders get away with it. There are penalties and one recalls the fairly recent “notes the increasing success of the Rev- publication of the list of the tax offenders; it is no enue Commissioners in recent years in bad thing that the list is published. However, the tackling tax evasion generally and the es- public embarrassment of one’s name being on tablishment by the Revenue Com- such a list and the financial penalty one must pay missioners of a dedicated Investigations falls far short of a prosecution in court and of a and Prosecutions Division in 2003, com- potential penalty which might be handed down mends the Minister for Finance and the by the courts. That practice is a reflection of how Government for the additional powers and the Legislature and members of the public view resources made available to the Revenue tax offenders. This is a matter I would like the Commissioners and endorses the Govern- Minister to examine. In other words, is it enough ment’s commitment to continuing support to simply have a financial penalty and the of the work of the Revenue Com- embarrassment of one’s name being on such a missioners.”. list, even though that is quite severe in its own way? Why did we put a provision in regard to Minister of State at the Department of Health prosecution in the legislation? We, who are and Children (Mr. Callely): I apologise on behalf elected by the people, have placed it there to of the Minister for Finance, Deputy McCreevy, reflect our view and that of the public that tax who would like to be here but cannot attend offending is a serious offence. In that sense, it is because he is taking Committee Stage of the a disappointment that it is not being fully exerted, Central Bank and Financial Services Authority of and I believe members of the public share that Ireland Bill 2003 at present. view. I support the Government amendment, which If one is a compliant taxpayer and reads in the highlights the Government’s commitment to, and newspapers that the full powers of the Revenue support of, the work of the Revenue are not being exerted in this regard, it causes one Commissioners and their increasing success in to question why one would be a good, honest and tackling tax evasion in recent years. The primary upright citizen. There is a sense abroad that the function of the Revenue Commissioners is to full rigours of the law should not only be used but enforce compliance with the customs and taxes should be seen to be used and that there should legislation through collecting taxes and duties. A be rigorous enforcement of the tax code and of key objective in this regard is to meet the annual the powers that have been given to the Revenue budget target. To this end, the Revenue Commissioners. Commissioners have been assigned responsibility There is much to be said for the separation of for the care and management of all duties and tax the roles of the collection of taxes, on the one and have been provided with a range of powers hand, and prosecution of offenders on the other. to enable that mandate to be fulfilled. These The culture of the Revenue Commissioners is powers are reviewed regularly to ensure they are largely centred around the issue of collection, adequate for the task. The Seanad will be aware hence the issue of settlement. If a person is a tax that the Minister for Finance recently published 885 Revenue Commissioners: 18 February 2004. Motion 886 the report of the Revenue powers group, which ordinating all criminal investigations activity by he established last year to carry out a review of the Revenue Commissioners and has been the powers available to the Revenue provided with additional resources to enable it to Commissioners. conduct more criminal investigations into serious The Revenue Commissioners have made it evasion. All other areas of Revenue have been very clear both by their actions and commitments mandated to identify cases that are potentially that they have no tolerance of tax evasion. Their suitable for prosecution and to refer these to the most recent statement of strategy for 2003-05 investigations and prosecutions division. affirms their commitment to “making compliance These developments build on the approach easy while making non-compliance very which was adopted in 1996-7, when Revenue unattractive” and to achieving this by a balanced initially took on the function of investigating approach combining a sharp uncompromising cases with a view to prosecution and referring response to evasion and default while providing them directly to the Director of Public high quality services to compliant tax and duty Prosecutions. To achieve this, a number of payers. The statement of strategy has as its first officers in their investigation branch received goal maximum compliance with tax and customs training to develop the skills needed to legislation and this requires a balancing of investigate offences and meet the evidential Revenue resources between their various requirements of criminal investigations. The programmes so they are deployed effectively and initiative was undertaken in consultation with the efficiently in identifying and combating risk to Director of Public Prosecutions, who provided the Exchequer. one of his professional officers to give guidance This approach to risk has been extremely and advice to the Revenue investigators. successful with over 1 billion having been Currently, the Director of Public Prosecutions recovered for the benefit of the Exchequer has two officers available to Revenue through the special investigation projects initiated investigators to discuss evidential matters and any in recent years. This sum is additional to the other issues that arise in the course of recoveries made under the normal audit investigations. Prior to 1990, the Revenue programmes of the Revenue Commissioners. The Commissioners referred cases to the Garda for majority of cases where evasion is discovered are investigation. As noted by the Comptroller and concluded on the basis of a negotiated settlement Auditor General in his report for 1995, the with the taxpayer, which involves collection of the arrangements in place were not effective as only unpaid tax together with interest and civil one case had reached the courts in the previous penalties. The level of civil penalties imposed is four years. usually far greater than the level of fines imposed Since 1996, 28 individuals and companies have by the courts in similar cases and settlements are been convicted of a variety of serious tax published on a quarterly basis in the tax offences, six of these in the past 12 months. In 11 defaulters list in Iris Oifigu´il if the terms requiring of these cases, jail sentences were imposed, such publication are met. Generally, the amounts although seven of these sentences were paid by tax defaulters under this civil penalty suspended. Fines were imposed in the rest of the settlement process are a multiple of the tax cases. Currently, there are 42 cases of serious tax evaded in the first place. evasion under investigation with a view to However, the Revenue Commissioners fully prosecution, including six cases which are recognise that in addition to initiating currently with the Director of Public Prosecutions programmes whose focus is largely on the awaiting directions. Additionally, there are a recovery of unpaid taxes and the imposition of further two cases in respect of which bench heavy penalties, offenders should also be warrants have been issued by the court because prosecuted where this is possible. The statement the defendants have absconded. With the of strategy for 2003-05 signals as one of its key procedures now in place in the investigations and strategies maximising compliance, the deterrence, prosecutions division and the arrangements detection and prosecution of evasion, smuggling between it and other areas of Revenue, new cases and other breaches of the tax and customs are being identified and added each month. This legislation. This is regarded as a vital element in represents a considerable ratcheting up by the maximising compliance and ensuring the proper Revenue Commissioners in a relatively short taxes and duties are paid on a timely basis to timeframe of their prosecution activity. In the Exchequer. addition to the aforementioned prosecutions, The approach of the Revenue Commissioners over 6,000 individuals and companies have, in the is increasingly to investigate greater numbers of same period, been convicted of offences of failing cases for criminal investigation with a view to to file tax returns following action by the their referral to the Director of Public Revenue Commissioners. Prosecutions. To this end and as part of their Experience in the criminal investigation of tax restructuring programme, the Revenue cases to date indicates that there are very Commissioners recently established a new exacting evidential standards to be met to satisfy investigations and prosecutions division. This the criteria for a successful prosecution. division, which now combines tax and customs Particular difficulties arise where vital and excise investigators, is tasked with co- documentation is not available, often due to the 887 Revenue Commissioners: 18 February 2004. Motion 888

[Mr. Callely.] prosecutions for tax evasion in the courts, but are lapse of time or where witnesses are not available determined and confident that their new due to their location or reluctance to become approach and the establishment of the involved where the suspect is an employer or investigations and prosecutions division will business associate. This is in line with the increase the numbers of such cases. The level or experience of dealing with white collar crime severity of the sentences imposed is a matter for generally. A selective approach must be adopted the courts but it should be remembered that the to avoid Revenue resources being tied up in what impact on a defendant is not limited to the is an extremely labour-intensive process and sentence imposed by the court. For example, in where the outcome may ultimately be non- one of the cases accepted for investigation in 1999 productive. Consequently, resources tend to be in which a conviction followed in 2003, a total fine focused on cases in which it is reasonably clear of 1,750 was imposed. However, the convicted from the outset that evidence of wrongdoing is man and his company settled the liability to available or likely to become available in the Revenue by paying in excess of 1.65 million. The course of an investigation. courts are influenced by the fact that the Revenue Equally, the courts must be satisfied that the Commissioners impose heavy penalties. standards applied by investigators in conducting The judgment of the Court of Criminal Appeal the investigation and gathering the evidence meet in the case of the Director of Public Prosecutions the requirements all of us like to ensure of fair v. Redmond includes the following: procedure and due process, because of the It is plainly not possible for a sentencing potentially serious consequences for a suspect. court in a case such as this to ignore the fact Revenue officers must take care that at all stages that other penalties, which may be much of the investigation, not just the evidential greater in amount than the cumulative sum of aspects, the appropriate standards are met. the maximum fines for those charges, have Investigating a case with a view to possible already been made. prosecution and then taking suitable cases through the courts can be a slow and resource- Section 9 of the Waiver of Certain Tax, Interest intensive undertaking, regardless of who is and Penalties Act 1993 provides for an offence of involved. The process can be lengthy and cases failing to comply with the 1993 tax amnesty, that can often involve officers in a number of is, where a taxpayer who had knowingly and appearances in court at the various stages. wilfully submitted false returns etc. either failed Another factor which influences the process of to make an amnesty declaration or gave a false criminal investigations is the level of the powers amnesty declaration. available to the investigators. Revenue officers, Contrary to recent reports the Revenue in the course of their work in this area, have Commissioners have never taken a general identified deficiencies which have curtailed their decision not to prosecute cases for breach of capacity to assemble the best evidence in some amnesty legislation. They have, however, cases, and as a result of these experiences suggest experienced difficulty with investigating such matters for inclusion in Finance Bills. cases. As the Seanad is aware, the current Minister The 1993 amnesty legislation specifically pro- for Finance, Deputy McCreevy, has a track hibits access by Revenue auditors or investigators record second to none in introducing legislation to amnesty declarations. Consequently it is not to augment Revenue powers in Finance Acts. possible to examine these declarations to establ- Appearing last year before the Committee of ish whether taxpayers are in breach of that legis- Public Accounts, the chairman of the Revenue lation. Persons who made an incorrect declar- Commissioners pointed out that almost all of the ation to the chief special collector would normally developments in the “offshore area” could be only be discovered during the course of a Rev- attributed to the 1999 powers introduced by the enue audit or investigation. The amnesty legis- Minister for Finance, which allows the Revenue lation provides that Revenue must apply for the to examine financial institutions in a way that was consent of the appeal commissioners to conduct not possible previously. further inquiries into a case where it is suspected Most recently, the Minister for Finance that the declaration is incorrect. The Revenue received the report of the Revenue powers group, Commissioners have made approximately 20 such which examined the powers available to Revenue applications and consent has been given in about generally, but also considered the area of criminal one third of the cases to date. Other cases have investigation of tax evasion, and made certain been investigated with the consent of the tax- recommendations which have a bearing on the payer, outside the 20 such applications to which I matter. As my colleague, Deputy McCreevy, have referred. stated at the time of the introduction of the I am informed by Revenue that it has not been Finance Bill 2004 a few weeks ago, the possible in any cases examined to date to obtain recommendations of the group are being the evidence necessary to meet the required published to allow public debate and will be standard of “beyond reasonable doubt” as considered for next year’s Bill. regards amnesty non-compliance offences. It is The Revenue Commissioners are satisfied with generally the case, also, that where a taxpayer the level of success achieved to date in criminal agrees to co-operate in an investigation and 889 Revenue Commissioners: 18 February 2004. Motion 890

Revenue cannot otherwise access relevant prosecution system and surveyed the existing sys- evidence, the taxpayer’s rights against self- tem for bringing revenue prosecutions. The paper incrimination will restrict the potential for a includes a recommendation that the arrange- prosecution. ments currently in place for the prosecution of Those availing of the provisions of the Waiver revenue offences be maintained for a period and of Certain Tax, Interest and Penalties Act 1993 then reviewed in a few years. The Law Reform benefited both by a financial saving — that is, the Commission’s final report is due to issue later amount they had to pay to satisfy their debt to this year. the Exchequer was less than it would otherwise The message should be clear. Anyone who have been — and by an assurance of hides taxable income or evades tax will be pursed confidentiality in their dealings with the special by the Revenue Commissioners. Unlike others collectors appointed to deal with the amnesty. who had the opportunity but failed This provision of confidentiality restricts the 6 o’clock to do so, the Government backed the ability of the Revenue Commissioners to gather efforts to tackle evasion with evidence to support a criminal prosecution. important and effective legislative initiatives, to In the course of the large scale investigation which I referred earlier, and has provided projects undertaken by Revenue in recent years, significant extra resources and an additional 400 such as the investigation into the bogus non- staff in the audit and compliance area. By resident account holders, taxpayers have paid comparison to earlier years and having regard to additional taxes relating to years for which the excellent results achieved on general tax amnesty declarations should have been made, compliance initiatives by Revenue and the and it is likely that some have not made any emerging results in prosecutions, the amnesty declaration. Due to the vast scale of Government sees no reason to disturb the these investigations and the potential they have existing arrangements for prosecutions. to lock up Revenue resources for years, the The Government’s commitment to provide the approach has been a pragmatic one, aimed at Revenue Commissioners with the necessary collecting the undeclared taxes together with resources and powers is clear. I, therefore, ask substantial interest and penalties in the shortest Senators to support the Government amendment. possible time. Had Revenue adopted a criminal investigation approach to these cases, it would Mr. Higgins: I welcome and endorse this not have been possible to achieve these results, timely, opportune and valid Labour Party motion as a taxpayer once cautioned, is not obliged to and agree with the thrust of Senator McDowell incriminate himself or herself. and Senator O’Meara’s remarks in that regard. I This programme is continuing and will now am galled by the manner in which the Revenue focus on the small number of cases that have not Commissioners wastes so much time and come forward. They will be pursued and will be resources investigating the small taxpayer. In my considered as potential prosecution cases and, previous capacity as a Deputy and currently as a where selected, will also face the prospect of Senator I have been approached in my clinics by being prosecuted as regards amnesty offences, if 20 or 25 people who received forms and queries the relevant evidence can be assembled. in triplicate from the Revenue Commissioners I am also assured by Revenue that if in the regarding the holding of overseas bank accounts. course of any investigations, amnesty offences are I know the individuals concerned, some of whom identified and the necessary evidence is available, are in receipt of small farmers benefit and non- they will be investigated with a view to taking a contributory old age pensions. The majority of criminal prosecution for such offences. There them have never worked outside the country or, have been some reports that a ten year rule if they did, they worked on building sites and applies as regards amnesty offences. The returned here and invested whatever small Revenue has informed the Minister for Finance savings they had for a rainy day. In none of the that the legal advice available is that there is no cases with which I have dealt and on behalf of time limit on an investigation of indictable which I have contacted the Revenue offences and investigators proceed on that basis. Commissioners is there any evidence of overseas It can be seen from the results and the progress bank accounts. When they replied to the referred to already, that the Revenue Com- Revenue Commissioners’ queries, they received missioners are serious about the pursuit of non- another series of registered letters in triplicate compliance with the tax code and the balanced which frightened them. In some cases, the people approach being adopted has proven to be extre- concerned were suicidal as a result of the constant mely successful. Their resolve to increase the barrage of queries, yet there was no evidence to number of cases being investigated and referred substantiate the claim. to the DPP is already bearing fruit, with the num- The Minister of State said that since 1996 some bers of such cases at an all time high. The present 28 companies have been convicted of a variety of arrangements are working effectively. The Law serious tax offences, six of them in the past 12 Reform Commission in its consultation paper on months. In 11 cases, prison sentences were a fiscal prosecutor and a revenue court, published imposed, seven of which were suspended. There in July 2003, looked at the treatment of revenue have been only 28 prosecutions during the past offences, including the workings of the public seven years plus. That is derisory. We are 891 Revenue Commissioners: 18 February 2004. Motion 892

[Mr. Higgins.] by an Oireachtas joint committee and eventually speaking here of criminal prosecutions. The refunds were made. Senator Mansergh, who is a Minister of State referred in his contribution to member of the Oireachtas Joint Committee on “serious tax offences” yet prison sentences in Finance and the Public Service, will be aware of seven of the 11 cases mentioned were suspended. another case involving a major stand-off between Were any of the people involved in the other four a recommendation made by the Ombudsman and cases ever sent to prison? Will they go to prison? the failure of the Revenue Commissioners to Are they currently in prison? While 28 comply with that recommendation even though it convictions were obtained, prison sentences were was found to be out of court. imposed in only 11 cases, seven of which were There is no comparison between the Revenue suspended. What happened in the other 17 cases? Commissioners and the Criminal Assets Bureau If the offences committed were serious, the which investigated John Gilligan, Ray Burke and people concerned should have received custodial other major transgressors. It dug its teeth in even sentences as in the case of Lester Pigott. though tax evasion issues is not its primary function. Such issues only arise if there is Mr. Callely: That is a matter for the courts, not evidence of serious corruption. The time has the Revenue Commissioners. come to handover these powers to the Criminal Assets Bureau, to give the Garda working within Mr. Higgins: I fully appreciate that point. that bureau the powers they so effectively use so that at last this issue can be addressed. The Mr. Callely: The Senator is somewhat selective Revenue Commissioners, which has had these in the figures he is quoting. powers for long enough, has not confronted the problem. Mr. Higgins: As Senator O’Meara said, there is a culture of acceptance within the courts and the Dr. Mansergh: While I support the Govern- Revenue Commissioners. We will not get to grips ment amendment, I welcome this important Lab- with the situation until such time as people who our Party motion. I do not necessarily agree with commit serious tax offences are imprisoned. the thrust of every recommendation it makes but The Minister of State referred to yet another this is a matter well worth airing. I would like to review of the powers of the Revenue pick up on a point made by Senator Higgins. I Commissioners. Its powers have been reviewed strongly believe that the Ombudsman’s recom- time and again. An announcement by the mendations should be observed and carried out Revenue Commissioners in 1997 that it was going by the Revenue Commissioners or any other pub- to vigorously pursue tax dodgers received banner lic authority. If there is a lack of legal power to headlines in the media. The compliant taxpayer ensure they do so, annual legislation should take and, in particular, the PAYE taxpayer who has care of it. carried the can for so long, who watched tax I welcome the success and progress in recent evaders availing of creative accountancy and years in tackling tax evasion. It has been a factor obtaining higher education grants while they had in the significant revenue buoyancy we have en- to pay to put their children through college, felt joyed. In a little more than a decade, revenue has that at long last they would get a fair deal and the tripled, due mainly to economic growth, higher tax dodger would get what was coming to him. employment and broadening of the tax bands. That has not happened. The figures speak for Also, there is more compliance with tax laws than themselves. was previously the case. One cannot measure the The Minister of State and Senator McDowell success of the Revenue Commissioners by the spoke about the 1993 amnesty. The Minister said: number of people it catches. One must consider The 1993 amnesty legislation specifically pro- those it deters, something we cannot measure. hibits access by Revenue auditors or investi- Increased revenue, as we all know, helps to fund gators to amnesty declarations. Consequently, services and to reduce the weight of the tax it is not possible to examine these declarations burden born heavily by a limited number of peo- to establish whether taxpayers are in breach of ple, in the PAYE sector in particular. that legislation. I welcome the more rigorous, without fear or favour, approach taken by the Revenue Com- A section of the legislation which seeks to dig out missioners. We have to take note in this dis- tax dodgers undermines the thrust of that cussion of the statement by the Minister for Fin- legislation. Why should the Revenue ance, Deputy McCreevy, in the Da´il yesterday in Commissioners have to seek from the appeals reply to a question on refocusing the establish- commissioners further information on whether a ment of an investigations and prosecutions person falsely availed of a tax amnesty? That is division: a farce. The underlying arrogance of the Revenue If in the course of investigations amnesty Commissioners was discussed in the House in re- offences are identified and the necessary lation to the Ombudsman’s report to both Houses evidence is available they will be investigated of the Oireachtas on tax refunds due to two with a view to taking a criminal prosecution for widows in Cork. The matter was also dealt with such offences. 893 Revenue Commissioners: 18 February 2004. Motion 894

In addition to the Revenue Commissioners, there highlighted by the tribunals. I am sure that the is the Criminal Assets Bureau but I accept this tribunals have only shown the tip of the iceberg. operates in a different context. Labyrinthine accounting practices have been used I understand that the Revenue Commissioners which make it extremely difficult to know who adopt a certain pragmatism. The objective is to holds income and where. maximise revenue. They not only collect from the I recall being shocked approximately ten years non-compliant but they also encourage ago, when my party was in government with compliance by others. It costs 85,000 per year to Labour, at a dinner at which a senior executive imprison somebody. Generally speaking, tax of a well known media organisation was present. offenders are in a different category from other He and several others began giving out about a offenders in that they have a large amount of man much in the news at present, namely, the income and assets. then Commissioner Flynn, in respect of his socialist tendencies in Europe. The topic of Mr. Ryan: Welfare offenders are sent to prison. conversation was the social charter. The individual in question said to me that he hoped Dr. Mansergh: I would prefer to take money the Government was not pursuing tax evasion from these people than spend it on them. too seriously. However, I accept in that in certain limited There is a large and complex task to be instances it may be a case of pour encourager les undertaken in respect of a few people on higher autres. The idea of jailing large numbers of incomes. The Revenue Commissioners have a people would, in financial terms, be totally great deal more to do. As Senator Higgins stated, counter-productive. The naming and shaming of the Revenue Commissioners are, on the whole, tax evaders is quite effective. successful in capturing evasion by relatively small people or businessmen. I wish we could be Mr. Higgins: These people have no shame. convinced that they were equally successful in dealing with all the bigger individuals. Dr. Mansergh: Let us take as a model the health campaigns in respect of tobacco and state Ms Tuffy: I wish to raise the issue of tax reliefs. that tax evasion can seriously damage your The chairman of the Revenue Commissioners reputation and your pocket. was quoted recently as saying that in extreme I have a number of reservations which I will try cases exploiting legal tax loopholes is not very to express reasonably quickly. There is no doubt different from a guilty man walking free because that officials of banks and other financial of a legal technicality. Despite those remarks, the institutions encouraged people — they often recent Finance Bill introduced a number of new germinated the idea in those people’s minds in tax shelters and reliefs which will benefit the very the first instance — to open non-resident wealthy. The Minister for Finance, Deputy accounts. The idea of prosecuting them seems to McCreevy, has done little to remove tax have been brushed aside but I hope that some loopholes. For example, nothing has been done individuals will take civil cases and that some of about reliefs for the bloodstock industry and these will be successful. numerous other reliefs in order to try to stop that Another point which must be borne in mind type of tax avoidance. People who avail of these and which is often forgotten is that we are shelters are denying the country revenue which operating in a totally different context than was the case 20 years ago. At that time we had a high could be used to pay for public services, etc. tax regime which — it does not justify it in any Everyone suffers as a result. way whatsoever — encouraged evasion, as every Little has also been done in the past couple of country has discovered. It was difficult when we years to remove more people from the higher had a currency of our own to pursue hot money income tax rate. I understand that more than half because there was a danger of creating black of taxpayers will be paying at the higher rate in holes, particularly in terms of withholding tax. 2004. An array of non-income related taxes have The single currency has helped us to adopt a been introduced under the Government’s much more rigorous approach because the effects policies. An obvious example, about which I feel of money leaving the country are no longer the strongly, is the waste charge county councils must same as they were previously. pay. This charge shows up the difference in way Senator McDowell gave a fair account of the people are treated. Ordinary people are treated 1993 tax amnesty. I agree that it was a marginal in a totally different way when they do not pay exercise. If memory serves, it raised their tax. The Government introduced a approximately £230 million and followed a much provision where if people do not pay their waste more successful amnesty in 1988 which raised charges, councils can refuse to collect their £500 million. Part of the reason for its success is rubbish. The people who are affected could be that confidentiality was promised and totally compliant as regards their income tax but guaranteed. they might be on low incomes or there could be There are signs, with the establishment of the many other reasons for their not having paid their new branch, of a realisation that a great deal of waste charges. However, non-payment means expertise is needed to deal with the type of issue that they are being denied an important service. 895 Revenue Commissioners: 18 February 2004. Motion 896

[Ms Tuffy.] The Government amendment is a clear The type of people who avoid paying millions acknowledgement that we have had a problem of in income tax receive all their services and are tax evasion for many years. It is still with us as able to settle with the Revenue if they are caught. Senator Mansergh pointed out. It is being dealt In general, these individuals do not face jail. I do with although it is a long way from being fully not support or agree with the kind of protests that addressed. The amendment further acknowledges have been mounted against waste charges. that the powers and resources available to the However, it is sickening to see those involved in Revenue Commissioners must be reviewed these protests jailed while others who have constantly and increased as appropriate. As the effectively robbed the country of millions can evidence shows, the Government has assiduously travel abroad and enjoy themselves. Ordinary set about that task since 1997. That cannot be people are becoming extremely angry about this contradicted. The work the Government has type of tax evasion and that is why they get done and its initiatives have had significant and annoyed about additional charges such as the growing success which has been acknowledged by bin tax. all sides this evening. Major changes have been The Government seems to have decided that it made to the powers of the Revenue will take this route in order to obtain the Commissioners, the most significant of which additional taxes. It is not prepared to deal with were introduced in the Finance Act 1999. It must tax evasion or close the loopholes which aid tax be acknowledged that the capacity of Revenue to avoidance. It is determined to hammer those on investigate tax evasion has been substantially middle and lower incomes for everything it can. improved. The Government will probably come forward Some of the most significant changes in the with proposals in the future to bring back third 1999 Act related to financial institutions and the level fees. It charges fees for every type of service taxpayers’ information which they held. Among etc., which do not bear any relation to people’s other measures, the Revenue Commissioners incomes but it will not properly pursue those who were given powers to carry out on-site audits of do not pay sufficient income tax. banks whereas previously they were prohibited from entering bank premises. They were also Mr. Fitzgerald: I second the Government given powers to carry out proper audits of DIRT amendment to the motion. returns by getting behind non-resident The motion measures success and effectiveness declarations to check their bona fides. This was in the enforcement of the tax laws solely in terms unheard of up to that time. The Revenue of the number of criminal convictions secured on Commissioners were given powers of access to the basis of those laws and the 1993 tax amnesty. bank accounts of named taxpayers and to a class To be fair to Senator McDowell, in the course of of unidentified taxpayer with the consent of the his contribution he covered a much wider area. appeal commissioners or the High Court. However, I must interpret the motion on the In the same year, the Revenue Commissioners basis of its text. The motion calls for the transfer were given much freer access to third party of responsibility for the prosecution of offences to information for the purpose of validating tax a body other than the Revenue Commissioners. returns. A number of miscellaneous powers were While his analysis of that was quite reasonable, enacted including the introduction of a Senator McDowell did not justify the proposal to requirement that the donor of a gift, as well as transfer jurisdiction in these matters. The its recipient, should make a return to Revenue proposal has echoes of a recent proposal to detailing its particulars. These extensive and transfer powers to deal with institutionalised previously unenvisaged powers have had child abuse from the Department of Education profound effects on the successful pursuit of and Science to the Department of the Taoiseach. institutional and individual tax evasion. It cannot One is tempted to ask if we are witnessing the be denied that they have struck at the core of emergence of a pattern whereby people who put the culture of secrecy employed so effectively by forward arguments which do not seem to be institutions and individuals in a manner which cogent are tempted to propose that responsibility allowed fraud and evasion to thrive and spread for the matter under discussion should be for decades. The evidence of this fraud and transferred to another agency to let someone else evasion is emerging now. deal with it. I do not accept the validity of that The 1999 measures, additional powers granted argument. I apologise to Senator Higgins as it is since then and new structures within the Revenue my own fault I could not hear him. While Senator Commissioners, including the establishment of McDowell’s arguments were very balanced, I do the dedicated investigations and prosecutions not accept that the logical conclusion is that there division last year, have resulted in the recovery is clear justification for transferring those powers. of upwards of 1 billion under different headings. I would not like to see that tactic becoming Under the DIRT heading alone, some 800 million pervasive in the Houses of the Oireachtas. It has been recovered. All speakers have referred would take from the reasoned exchanges of which to the recent report of the Revenue powers group Senator McDowell is more than capable. He does which I wish to refer to in detail later if there not need me to tell him that. is an opportunity. The report states that certain 897 Revenue Commissioners: 18 February 2004. Motion 898 recently introduced Revenue powers have clearly criminals who are not tax compliant, he would been used to considerable effect. prefer to see the latter poor and out of prison The report also states that Revenue figures than rich and in prison. I feel strongly about that show a clear link between the power to access and would prefer above all to see such people information on DIRT from financial institutions stripped of their assets. and the substantial yields from settlement of I appreciate the point made earlier by Senator cases arising from the use of these powers. It Higgins suggesting a closer tie-in — I accept it is further states that the powers have been cited by there, and growing — between the Criminal the Revenue Commissioners as essential to their Assets Bureau and the Revenue Commissioners. success in the DIRT look-back audits, follow-up They should work hand in hand. We should projects investigating the underlying depositors recognise too that this is partly a resources and the inquiries into Ansbacher and other problem. On three occasions in the last year I offshore entities. According to the chairman of have raised in this House the lack of support the Revenue Commissioners when addressing the within the Criminal Assets Bureau. The situation Committee of Public Accounts last October, the has marginally improved in recent times, but aggregate figure in the context of these matters when I checked within the last year, there were comes to approximately 892 million. only either two or three detectives attached to the To be fair, no Minister for Finance in the Criminal Assets Bureau to deal with the biggest history of the State has provided the Revenue crime growth area in our country. That is a Commissioners with as many additional powers reflection on the political system for which the as the current office holder. If any Minister has Government must take responsibility. It is not been the bane of tax experts and analysts, history good enough that this situation should be must record it has been him. The name and allowed continue. shame campaign has been referred to and, with We also need to look at the issue of naming some reservations, I believe it has been and shaming. There have been improvements but successful, although some might say that success we need to consider the issue further. Naming has been moderate. The Minister for Finance’s and shaming is very effective nowadays but would programme of providing additional powers and not have been so 15 years ago. Let us be honest resources to the Revenue Commissioners on a with ourselves. People who evaded tax 15 or 20 review by review basis together with the years ago were almost heroes. People did not establishment of the investigations and know or did not acknowledge that the money was prosecutions division will reap rewards in the ultimately coming out of their own pockets. years ahead. The division refocuses the thrust of There has been a sea change in attitude. I agree the Revenue’s programme of investigation. with the motion in that there has been a certain duplicity in the political view of this issue. That Mr. O’Toole: The motion has prompted many comes into play very often when one talks of levels of agreement on all sides of the House, but compliance and is dealing with the issue of paying we should cast our minds back. It is not that long taxes and giving powers to the Revenue since a Taoiseach addressed a St. Patrick’s day Commissioners; people then talk of the difficulty group in Washington with the infamous words of attracting foreign direct investment. That that income taxation was still something of a argument has been used time and again. novelty in Ireland. As we have been finding out The other argument is that the country would ever since, that is part of the problem. There was fall apart if one of the major banks were found a macho view until very recently that it was a to be involved in any type of fraud or activity that great thing not to pay taxes. That view continues was less than compliant. That attitude still exists. to be maintained in many places. I dislike the I came across a lot of it when dealing with the focus in this debate on those decent public audit review group. In his speech, the Minister of servants who work in the Revenue State said we are now part of Europe, and could Commissioners and do their utmost in the face of look at the matter. That is no help. In Germany, all sorts of difficult circumstances. Those listed companies on the Dax, the German stock circumstances are often created by Members of market, might have to comply with four different the Houses of the Oireachtas who make regular sets of compliance from different backgrounds, representations at senior level on issues of tax states and places. There is no co-ordination which they should not go anywhere near. between the auditing standards boards of the US Since I saw the film “Al Capone”, I have held Securities and Exchange Commission in a view on the best way to deal with such people. Washington and the equivalent groups in the UK He was finally brought to justice by the US and the euro area. Those are three huge areas Department of the Treasury rather than by which cannot get together. armed agents of the FBI. I spoke recently to the I do not know how many years it took us to get senior Northern Ireland police officer dealing people to decide on the colour of a passport. This with the establishment of a copy-cat version of matter is similar. The idea that we cannot do it is our Criminal Assets Bureau. He said that in all quite extraordinary. There are people in this city his investigations and discussions with people he working in auditing for the Revenue has come to one conclusion, namely, that in terms Commissioners and others who have different of dealing with violent criminals or with those standards with which they must comply 899 Revenue Commissioners: 18 February 2004. Motion 900

[Mr. O’Toole.] responded to the ever-changing needs of a depending on who they are doing the work for. It modern economy. This process of change is a mess. The only positive aspect I can see is continues and deepens apace under the umbrella that in recent times many people who work for of Sustaining Progress, and benchmarking. Elan — not far from the constituency of the The Revenue Commissioners have willingly Minister of State, Deputy de Valera — were embraced changes in work practices, fully saved by this. Because Elan had to comply with integrating Customs and Excise with the the more stringent compliance regulations of the mainstream taxes service, and launching new Irish authorities, it was able to prove it was not specialist operating divisions dealing nationally on the same wavelength as those companies with the largest and most complex cases, as well perpetrating the major frauds that were going on as a new investigation and prosecutions division. in the US at the time, regarding the selling of This motion is also ill-timed because it comes advance royalties back to themselves and paying after a period of intensive capability building, the money over again. There are huge problems where Revenue Commissioners chairman Frank in this area which will not be dealt with until we Daly and Commissioners Fehilly and O’Grady get some sort of co-ordination. That is an issue in have undertaken Trojan work to energise staff at which I would like our EU Presidency to show all levels and rebuild morale after the trials of the some interest. Committee of Public Accounts hearings of 1999. I agree with the tenet of the motion, that not The Progressive Democrats is committed to enough people have been jailed. More should be ensuring the Revenue Commissioners are given jailed, and if that does not happen, we will all all necessary resources, financial and human, to look like fools for putting up with the situation. discharge their onerous duties. My party in I do not agree with the criticism of the Government will guarantee that the programme Revenue Commissioners. They have been of modernisation already successfully started, and invested by us with the power to make judgment now copperfastened by the benchmarking calls, which they can and do make. We do not flexibilities, is fully implemented. This motion know the inside stories. For every case we might asks us to respond to Revenue’s initiative and hear of, I could match it with another. Within the change by launching an unveiled disingenuous last two weeks I was talking to a Minister who attack on their professionalism, ability and told me of someone in his constituency who was commitment. going to lose his farm because of his offshore This motion is more than merely mis-timed. It involvements some ten years ago. That is an is seriously ill-informed and ill-judged because it example of the Revenue Commissioners holding displays a breathtaking ignorance of critical a line. The significant fact is that every politician elementary legal principles. All taxpayers are who was in that circle of discussion felt sorry for obliged to pay the proper amount of tax due on that ordinary farmer who was going to lose his their income or capital whether corporate or farm. I do not blame them, and I felt sorry too. personal. Where a taxpayer fails to do so, On the other hand, it was the Revenue Revenue vigorously pursues 100% of the tax Commissioners who were taking a stand on the underpaid, plus interest due from the date it issue and who were not prepared to back off in should have been paid, and a tax year penalty such situations, just as they never do. Every time payment. This penalty is the punishment for they take a strong line they are equally criticised. failure to take due care, for error, omission, gross This is not an easy issue. The motion has been carelessness or negligence. These civil penalties hugely important and I congratulate the Labour are robustly but fairly and successfully enforced group on tabling it. As Senator Mansergh said, it by Revenue. raises issues which we must address. I do not This motion ignores this highly successful know the easy answers. More resources are called aspect of Revenue’s audits programme, looking for, along with a cleaner system of reportage back instead at a very different issue called evasion. to both Houses, so that we have a clearer The motion misunderstands the legal reality understanding of what the Revenue faced by Revenue. Tax evasion is a crime. The Commissioners do. They have not helped prosecutions that the Opposition representatives themselves by their rejection of the Ombudsman call for are criminal in nature, and if they are to on two occasions in the last year. That does not succeed, they must meet the heavy burden of help their public image. proof required in such cases. Most importantly, the motion fails to realise that the Revenue Mr. Morrissey: This motion is ill-timed because Commissioners do not have the right or authority it comes at a time when the Revenue to prosecute. That responsibility lies with another Commissioners have successfully completed the agency, the Director of Public Prosecutions. It is roll-out of a dynamic new customer-focused risk- the DPP who directs whether a case should be based regional operating structure. After a period prosecuted. The DPP will rightly only permit of fundamental redesign, restructuring and proceedings to be initiated if satisfied on the upskilling of a complexity never before attempted available admissible evidence that there is a case in the Irish public service, the Revenue to answer and where the evidence is sufficiently Commissioners and their staff have robust to prove beyond doubt that an offence enthusiastically and with great flexibility was committed. 901 Revenue Commissioners: 18 February 2004. Motion 902

It may have slipped the minds of my colleagues dence is available, they will be investigated with on the opposite side of the House but under our a view to taking criminal prosecutions for such sound legal system, the accused, even those offences. accused of tax evasion, are innocent until proven On the matter of the prosecution of officials guilty. That guilt must be established beyond from financial institutions who may have assisted reasonable doubt. To successfully prosecute a in placing funds in bogus non-residential case the Revenue must establish that a tax is not accounts, the primary responsibility for ensuring only underpaid but that the evader set out that a tax return is correct rests with the wilfully and knowingly on a pre-determined individual making that return. There is a course of action, with deliberate intent to evade statutory offence in the tax code of knowingly lawful tax. The mere fact that the tax due was not aiding or abetting another person to make an paid is not sufficient. That could be as a result of incorrect tax return. In the case of third parties neglect or gross carelessness as opposed to the generally, however, the standard of evidence evil intent of the wilful evader. required to incriminate them for alleged wrong- The burden of proof rests rightly with the doing by a taxpayer who has failed to declare prosecution, the Revenue Commissioners. This is correct income or gains is very difficult to meet. the fundamental issue facing Revenue. It must I understand from the Revenue Commissioners know a taxpayer is evading and how he or she is that while in their experience aiding and abetting doing that but it must also establish that it is a offences are notoriously difficult to prosecute, it wilful act of deliberate criminal intent beyond will be their general policy to pursue such cases reasonable doubt. No matter where responsibility if such evidence becomes available. for tax prosecutions rests, this remains a As Senator Fitzgerald mentioned, it should also mountain to be climbed. Indeed, one might be noted that no Minister for Finance in the consider the larger strategic question as to history of the State has given the Revenue whether it would be in the national interest for Commissioners more powers in Finance Acts to Revenue or any other State agency to initiate preclude tax evasion than the current Minister, prosecutions for criminal wrong-doing where it Deputy McCreevy. The Finance Act 1999 in had little prospect of securing a conviction due to a lack of credible evidence as to criminal intent. particular gave the Revenue Commissioners a What message would a series of acquittals send host of powers that were not previously available to those who might consider wrong-doing? to them, and the Minister has added to those I urge the House to reject this unworkable, powers in other respects. illogical proposal which would add a further layer Tax avoidance is the legal use of sections of the of bureaucracy between the investigating officer Finance Acts or other legislation for purposes for and the prosecution service. Does anyone which they were not intended. No Minister has seriously believe this proposal will improve acted as quickly as the current Minister for efficiency or the chances of successful Finance to close off the unintended uses of prosecutions by divorcing investigation from legislation. He acted in this manner in the recent prosecution? Finance Bill and in announcements he has made since the publication of the Bill. The Revenue Mr. Scanlon: I welcome the Minister of State. Commissioners are charged with operating the I understand from the Revenue Commissioners tax code and are currently engaged in the that in many cases examined to date it has not investigation. been possible to obtain the evidence necessary to Having been a self-employed business person meet the required standard of beyond reasonable for many years and having taken out loans in doubt in amnesty non-compliance offences. It is various banks, particularly in the 1970s and 1980s, generally the case also that where a taxpayer I am aware that when one inquired about agrees to co-operate in an investigation and borrowing money there was no mention of the Revenue cannot otherwise access relevant tax man. However, if a self-employed person tries evidence, the taxpayer’s rights against self- to borrow money from a bank today, the first incrimination will restrict the potential for a question they are asked is whether they are fully prosecution. compliant in terms of their tax affairs. That is a Apart from the amnesty aspect, however, Rev- welcome development. From personal experience enue has been successful recently in collecting of the people I deal with in business on a weekly outstanding tax and interest and imposing civil basis, I do not know anybody who is not fully penalties on many tax evaders in its ongoing in- compliant with the tax code. vestigations. Individual tax evaders have made considerable retribution for their offences as a di- Acting Chairman (Labhra´sO´ Murchu´ ): Will rect consequence of the large monetary settle- the Deputy Leader indicate if it is proposed to ments resulting from investigations. extend the time for the debate as we started late? Revenue’s criminal investigation programmes have been refocused recently with the establish- Mr. Dardis: It may not be necessary but ment of an investigation and prosecutions div- because we lost 20 minutes of Private Members’ ision. If, in the course of investigations, amnesty time due to two divisions, it might be appropriate offences are identified and the necessary evi- to continue past the time allocated for the debate. 903 Revenue Commissioners: 18 February 2004. Motion 904

Acting Chairman: It may be necessary if Mr. Dardis: ——leniently. I accept that but Senator Ryan is to have eight minutes at the end there are also individuals who came back and of the debate. who appeared to live in frugality but when they died one read in the newspaper what they left in Mr. Dardis: I will try to be brief and not breach their will and they were obviously wealthy. the time available. There is not much difference It is appropriate that the Revenue between both sides of the House in what we hope Commissioners have the type of flexibility and for from the implementation of the tax laws by sensitivity needed to deal with each case on its the Revenue Commissioners. There is a general merits as it arises. I do not see anything wrong determination on all sides that illegality, with that. They do that to a reasonable extent. impropriety and evasion should be rooted out The late Senator Paddy McGowan got apoplectic and dealt with severely. The question arises as to about the ruthlessness of the Revenue the method by which that might be best done in Commissioners in Donegal. Perhaps there are the interest of the State and its citizens, and in cases where individuals are less sensitive than the interest of fair play. others. That can be dealt with, but the best place Coming back to a point made by Senator to hit wealthy people who are greedy is in their O’Toole, there have been major improvements pockets. over the past 15 years. The culture has changed dramatically. Perhaps there is still some way to Mr. Ryan: In their egos. go but at that time people who evaded tax were regarded as heroes in some quarters. A name and Mr. Dardis: In their egos, perhaps, by naming shame policy would not have been effective. It is and shaming. They are hurt by the fact that their effective now and there is a general desire on the names might appear in the paper. part of the public to ensure everybody pays their taxes. Part of the reason for that is that the Mr. Ryan: And in court. burden of tax on individuals has been greatly alleviated through successive Governments and Mr. Dardis: Whether a jail sentence is an the rates are lower. When we started talking effective deterrent in the case of very large sums about the need to reduce personal rates of of money is questionable. I know of one case with taxation there was a general negative reaction to regard to the misuse of hormones in cattle where it on the basis that services would be reduced. the person chose to go to jail rather than pay the The proposition put forward of increased revenue fine because, in his view, it was worth £20,000 per to the State was widely rejected at the time. week, or whatever, to go into relative luxury in a Fortunately, that culture has changed. jail in the west and remain their for the period. We need to be aware of what these people are There should be no need for further amnesties. about. The purpose of amnesties was to draw a line and On the issue of offshore accounts, I accept it is correct to say, as Senator McDowell said — I there are double taxation treaties. I accept that if can vividly recall it when the legislation was going people are resident outside the country, they pay through the House — that the penalties for false the tax in the country in which they are resident. declarations would be so draconian nobody Apparently, Portugal has tightened up its would make any attempt to avoid their property laws with regard to people avoiding — responsibilities. That was put into the legislation not evading — capital taxes. Somebody to ensure the reservations in the Labour Party somewhere has to recognise that what is good and elsewhere were dealt with. The Revenue has business is not good citizenship and that citizens enormous powers with regard to those false have a responsibility to their country. There are declarations. wealthy individuals who accept those I also accept the proposition that some of these responsibilities but there are others, who are matters would be more appropriately dealt with extremely wealthy, who do not and questions through the Criminal Assets Bureau than by have to be asked. Revenue. The Revenue Commissioners do a very My final point, which was raised on the Order good job. Revenue is far more user friendly than of Business this morning, relates to the taxation many Departments. It is a model in terms of the of the bloodstock industry. The first thing that clarity of the advice one gets, the fact that one has to be said is that the exemption is on the stud gets rapid decisions and that it is very helpful, fees of stallions. While the flagships of Coolmore from my experience as a taxpayer, when one has and Godolphinare in the public eye, many others reason to contact them. They are also sensitive are struggling to make ends meet in the to individuals. industry.If this country means anything to many To some extent Senator Higgins wants it both countries abroad, it is the quality of its bloodstock ways. He wants the poor man who came back industry. We saw last night on “Horse Operas” from England with a few bob in his pocket and Aidan O’Brien going to America with who is living in the west to be dealt with—— Johannesburg and High Chaparral and winning, effectively, the world championship of racing. Mr. Higgins: No. I do not want false charges The comments made by the leading American made against him. trainers about the quality of the Irish bloodstock 905 Revenue Commissioners: 18 February 2004. Motion 906 was something to behold. This industry was dying evasion under investigation with a view to on its feet because the best stallions in the world prosecution... were being exported. Now, at least, we have That is in this period when they began to do it. Saddlers Wells and the one we are not meant to speak about because of the dispute which is Mr. Dardis: And 6,000 people have been taking place at present, Rock of Gibraltar. These convicted of offences for failing to file a return. are world class animals and they should stay in this country so that our world class industry Mr. Ryan: We are talking about serious survives and prospers. I am not critical of the offences here. In the same period, between 2,000 exemption on stallion fees. In my county of and 3,000 people have been convicted of welfare Kildare, there are far more people involved in the offences. What I would like to highlight is that horse industry, 10,500, than in farming. It is a there are very exacting evidential standards to be hugely important industry and it has provided met in order to satisfy the criteria for a successful jobs to people who had little going for them. Let prosecution. Why is that not the case when 300 us be clear about it — it is an exemption on stud or 400 people per year are prosecuted fees. It is represented as an exemption on all the successfully for welfare abuse? activities of the industry but it is not. A selective approach must be adopted to avoid Revenue resources being tied up in what is an Mr. Ryan: I thank Members for what was a extremely labour-intensive process. Why is that reasonably serious debate. What prompted me to not the case? The reason is that the average raise this issue, and I did so on the Order of citizen who is charged with Revenue offences — Business, was a report, which I have not heard not all, but most of them — does not have access contradicted, that the Revenue had concluded to high quality accountants, high quality lawyers that there was no evidence that any bank and all the other high quality advice about their encouraged people to set up bogus offshore rights. They are, therefore, easy targets to accounts of which there were 145,000 in their prosecute. I am not saying the Department does heyday. I am supposed to believe there is no anything illegal but the average citizen does not evidence that people did other than go into banks know what he or she does not have to say or what and open bogus accounts, on their own initiative, he or she can avoid doing. They do not know any without any assistance, advice or encouragement of that and, therefore, it is comparatively easy to from the very banks which were advertising prosecute. ostensibly the benefits of a non-resident having an account in Ireland. I do not believe that is true. Effectively, what the Revenue is saying is that I am not saying the Revenue is doing anything it cannot prosecute them because the difficulty of improper; I am saying that in the way it does its proving it is so great. The difficulty of proving it business it concluded it could not find evidence. is that these people, as they are entitled under the I do not believe that is the case. Constitution and under our law, use all the devices every citizen has to ensure they are dealt I do not think most citizens believe one could with fairly. However, what it looks like to society, have 140,000 non-resident accounts and not have correctly in my view, is that it is essentially a the banking system, to some extent, involved in system of one law for the rich and one law for encouraging it. One starts from that position the poor. about the Revenue Commissioners that they have People mentioned imprisonment. The word come to that conclusion. I shall quote a little of “imprisonment” is not mentioned in our motion what the Minister of State said, but Senator because I am not greatly enthusiastic about O’Toole has been disingenuous because I do not locking people up. For instance, I am want this to be an attack on good public servants. 7 o’clock not a great enthusiast for locking old It is an assessment of the capacity of one group people up, whatever their offences of public servants to do a particular job and a might have been during their political careers, but judgment call about whether it could be done I am an enthusiast for the process of trial and better by other people. If Members of the conviction. As I have said before in the House, I Oireachtas are not able to do that about the would not have liked to see General Pinochet public service generally, we might as well forget locked up; putting an 80 year old man in jail does about our job altogether. That is all it is about. not appeal to me. However, the fact of There are no attacks on people. In his prosecution is an enormously significant matter in contribution the Minister of State referred to the the context of the point made by Senator Dardis “approach which was adopted in 1996-7, when regarding the view rich people have of themselves Revenue initially took on the function of and the view of rich people that other people investigating cases with a view to prosecution and have. ... a number of officers in the investigation branch I agree with Senator Dardis that we, in this received training...” He stated further: country, are moving on. However, if we are to Since 1996, 28 individuals and companies move on, the citizens must believe that everybody have been convicted of a variety of serious tax is equal before the law and has similar rights offences, six of these in the past 12 months. In before the law, and that everybody’s rights are 11 of these cases, jail sentences were imposed... taken equally seriously by those who enforce the Currently, there are 42 cases of serious tax law. People notice that while, of course, some are 907 Civil Registration Bill 2003: 18 February 2004. Committee Stage (Resumed) 908

[Mr. Ryan.] That does not make a case for retaining the now paying over large sums of money, for the present situation but for an independent vigorous past 15 or 20 years most people were told there body to deal with the issue of the criminal was no great pot of unpaid tax money. It turned prosecution and criminal conviction of those who out there was an enormous pot of real money, commit what is a criminal offence. We should bigger than most on the Left ever suggested, remember it is a double offence: it is a criminal deliberately hidden, with malice aforethought, to offence not to pay tax and also scandalously non- prevent people paying tax. civic minded, having not paid tax, to use all the That ought to have been evident in the first services that society provides for which such year after the DIRT tax was introduced, when the people do not pay. first year’s revenue from that tax was three times Senator Dardis referred to those who try to higher than the Revenue Commissioners had avoid their civic duty of paying tax by moving in forecast, even though interest rates had dropped and out of the country. While we may not be able relative to the previous year. That was a signal to force such people to pay what they ought and that something did not match and that estimates what most of us feel morally obliged to pay, the of income, bank deposits and revenue were way least we could do is to avoid giving such people out of kilter. From then on, citizens have watched the adulation of allowing them to preside over a succession of issues emerge and matters arise. large charitable fundraising efforts, from which At the end of it all, after the best part of 20 years, the charity does not raise a fraction of the amount some 28 individuals or companies have been of tax that such people have avoided paying. convicted of serious tax offences, six of them in the last 12 months — we are getting a little better. Amendment put.

The Seanad divided: Ta´, 24; Nı´l, 17.

Ta´

Bohan, Eddie. Mansergh, Martin. Brennan, Michael. Minihan, John. Callanan, Peter. Morrissey, Tom. Daly, Brendan. Moylan, Pat. Dardis, John. O’Brien, Francis. O´ Murchu´ , Labhra´s. Dooley, Timmy. O’Rourke, Mary. Feeney, Geraldine. Ormonde, Ann. Fitzgerald, Liam. Phelan, Kieran. Glynn, Camillus. Scanlon, Eamon. Leyden, Terry. Walsh, Jim. Lydon, Donal J. Wilson, Diarmuid. MacSharry, Marc.

Nı´l

Bannon, James. McCarthy, Michael. Bradford, Paul. McDowell, Derek. Browne, Fergal. McHugh, Joe. Burke, Ulick. Norris, David. Coonan, Noel. O’Meara, Kathleen. Finucane, Michael. O’Toole, Joe. Hayes, Brian. Ryan, Brendan. Henry, Mary. Terry, Sheila. Higgins, Jim.

Tellers: Ta´, Senators Minihan and Moylan; Nı´l, Senators McDowell and Ryan.

Amendment declared carried. time before the declaration under paragraph (b) of that subsection is made, not being a Motion, as amended, agreed to. time earlier than 2 days before the day on which the latter declaration is made.”. Civil Registration Bill 2003: Committee Stage (Resumed). Mary Coughlan: Senators will recall raising an issue during the Second Stage debate on the SECTION 51. proposed procedures for the solemnisation of Government amendment No. 28a: marriage contained in the Bill. In my response I advised Members that my officials were actively In page 43, between lines 36 and 37, to insert engaged in discussions with interested parties the following subsection: with a view to resolving the issue. I also stated that my officials were seeking legal advice from “(9) A declaration specified in paragraph the Office of the Attorney General on the matter. (a) of subsection (4) may be made at any Arising from the advice obtained, I have decided 909 Civil Registration Bill 2003: 18 February 2004. Committee Stage (Resumed) 910 to bring forward this amendment to ensure the following the granting of such decrees, must substantive requirements for marriage can be met provide a copy of the decree to the registrar from while accommodating the liturgies of different the relevant court. The Courts Service will act as religious bodies. the registrar and these are considered a vital I am satisfied the amendment will address the event as they have serious legal and social issues and concerns raised by Members. implications for the status of individuals. The provision will facilitate persons granted a divorce Dr. Henry: I thank the Minister for tabling in the State who wish to remarry. the amendment. The civil registration service, except in specific cases of births and deaths, records vital events Dr. Mansergh: I thank the Minister and her occurring to the person within the State. It is not officials for finding a resolution to the problem. the purpose of the civil registration service to It was threatening to create difficulty and a bit of record vital events occurring in foreign embarrassment for one or more religious bodies. jurisdictions. The provision to record all decrees I congratulate the Minister on finding a of divorce and decrees of nullity granted by the satisfactory solution for all concerned. courts will provide a complete record of all such events from a future date. To include a provision Amendment agreed to. that allows parties to such decrees in the past to apply to the Courts Service for the decrees to be Section 51, as amended, agreed to. entered in the register would mean the register would not be a complete record of these events Sections 52 to 55, inclusive, agreed to. from a certain date. In the circumstances, it is not appropriate to accept the amendment. SECTION 56. Government amendment No. 28b: Amendment, by leave, withdrawn.

In page 46, subsection (1)(b), line 17, to Amendment No. 30 not moved. delete “cancellation” and substitute “refusal”. Section 59 agreed to. Mary Coughlan: This amendment seeks to correct a drafting error in the subsection to allow SECTION 60. for persons or bodies to appeal against the refusal of an tArd Chla´raitheoir to register a person Mr. McCarthy: I move amendment No. 31: nominated by a body in the register of In page 50, subsection (1), between lines 10 solemnisers. and 11, to insert the following paragraph: Amendment agreed to. “(a) any dispute arises between a person and a Registrar in relation to matters to Section 56, as amended, agreed to. which this Act relates, or”.

Sections 57 and 58 agreed to. This amendment would broaden the existing narrow basis for appeals under section 52. SECTION 59. Mary Coughlan: The section provides for the An Cathaoirleach: Amendments Nos. 29 and introduction of a new appeals system to enable 30 are related and will be discussed together. persons to appeal decisions on the registration of events. It is both desirable and reasonable that an Mr. McCarthy: I move amendment No. 29: appeals mechanism be formally included in the Bill underpinning the central registration system In page 49, subsection (1), line 40, after as fair and open, addressing grievances in a “divorce” to insert “or makes an order timely, structured and impartial manner and recognising a foreign decree of divorce as being confirming the principle of good customer valid in the State”. service. The amendment seeks to provide a The functions of the registrar include the comprehensive registration of decrees of divorce registration of births, stillbirths, marriages and to cover circumstances where a court recognises deaths, and the correction of errors on the a foreign order as being valid in this country. registers. In future the persons registering the event must be notified of the reason for a refusal Mary Coughlan: The section provides for the by a registrar to register an event or to correct an registration of decrees of divorce and decrees of error in an entry in the registers. An appeal may nullity of marriage granted in the State. be made where a register fails or refuses to Currently, each court holds its own records of register an event, or where an tArd Chla´raitheoir decree of divorce and civil nullity of marriage. or an authorised officer fails or refuses to correct There is no central database or repository of an error in a register of births, stillbirths or decrees of divorce and decrees of nullity within deaths. The decision of an tArd Chla´raitheoir the court system. Persons wishing to remarry, may be appealed to the High Court so there is 911 Civil Registration Bill 2003: 18 February 2004. Committee Stage (Resumed) 912

[Mary Coughlan.] As it is currently worded, “may” gives a great adequate provision within the legislation to deal of latitude to the officials concerned and address the concerns of the appeal. The Senator Henry’s much clearer amendment, additional wording suggested in the amendment substituting “may” for “shall”, will give a firm is unnecessary and would confuse the issue view about searches, an issue of paramount instead of clarifying it. importance.

Amendment, by leave, withdrawn. Dr. Mansergh: The English language is being misinterpreted because I read this section, as Mr. McCarthy: I move amendment No. 32: would any court of law, as “may” meaning “has In page 50, subsection (1), line 23, after a right to” or “shall be entitled to”. I accept that “person” to insert “concerned, as the case “may” has two meanings but it is clear in this may be,”. context that “may” means “has a right to” and I cannot conceive of any court interpreting it any This is a technical amendment to improve the other way. drafting of the Bill. Mary Coughlan: Senator Mansergh has Mary Coughlan: I disagree. The advice I have answered the question. The registrar general and obtained from the Attorney General is that this his officers have always facilitated those who wish would not add anything to the Bill, which to search the register. That, however, does not complies with best practice as established. include the adoption index, a totally different record. “May” is the normal legislative form and Amendment, by leave, withdrawn. its interpretation is “will be obliged to”. Concerns were raised by the genealogical Section 60 agreed to. groups that were unfounded because I gave a commitment that we will retain a genealogical SECTION 61. and family research facility in Dublin. The GRO has been transferred to Roscommon but that An Cathaoirleach: Amendment No. 34 is an facility will remain and electronic research alternative to amendment No. 33 and they will be equipment will be introduced in the research taken together by agreement. room in the GRO office in Joyce House in mid- Dr. Henry: I move amendment No. 33: 2004. Access to paper or microfilm copies of the index books and registers will continue to be In page 51, subsection (1)(a), line 40, to available until all historical data are available delete “may” and substitute “shall be entitled”. electronically in mid-2004. This is the most important amendment I have With the transfer of the GRO to Roscommon, tabled. I am concerned about the use of the word it is envisaged that discussions with the OPW will “may” in the Bill because in sections 50 and 52 take place on considering a more suitable of the Births and Deaths Registration Act 1880, location for the research facility, perhaps within which is repealed by this Bill, the public has a a university or in another more appropriate right to search all indices, local and national. It location. As Members will agree, the is important that “may” now appears in this Bill development of the research facility is most because it could mean “shall be entitled to” or important. We will continue another phase of the “may be allowed to” and it grants huge discretion civil registration system to incorporate an to superintendent registrars or the registrar Internet research facility, which will be beneficial. general as to who can look at sections. Consideration will be given to the level and type My wording is specifically chosen to accord of access to registration data which will be with section 35 of the Bill, dealing with the provided to users of this service. If concerns are privacy of adoption records which states that “no expressed about access to such research or data, person other than an tArd-Chla´raitheoir or a the consultative groups will be the appropriate person authorised in that behalf by an tArd- people with whom to air them and, accordingly, Chla´raitheoir shall be entitled to search the deal with them. register”. It is important that in that section the Bill states “shall be entitled”, but in this vital Mr. B. Hayes: Having re-read the subsection, I section it states “may”. That gives huge latitude want the Minister to further clarify the matter. to controlling access to these registers that did not The subsection states “on payment to him or her exist in the past. How does the Minister interpret of the prescribed fee, may, subject to such this? Section 35 looks very tight. Will “may” be conditions (if any) ...” What possible conditions interpreted in a tight manner? Will it mean “shall would there be? In the case of adoption, I am be allowed” or “shall be entitled”? aware there is specific law on this area which requires a great deal of discretion from the Mr. B. Hayes: Senator Henry’s amendment is officials concerned, but I am not aware of any superior to my amendment, which is clumsy. We other legislation concerning any other life event. wanted to delete from “may” until “section 13”. Will the Minister give some examples of what It is an important issue and we need clarity on it. those conditions may be? This matter has been 913 Civil Registration Bill 2003: 18 February 2004. Committee Stage (Resumed) 914 raised by the organisation to which I referred concede. Will she consider framing the section a earlier, Treoir, the unmarried parents association, little better for Report Stage on the basis that on who have made representations to me about this practical grounds it may be difficult, as Senator matter. They are satisfied with the current Mansergh said, to carry out a search? Will she situation and recognise the work done by all the consider inserting such an explanation to provide officials concerned, but they have raised the issue some definition in this regard? I am not being of why any conditions were inserted in this overly prescriptive but if there are practical section when the only current conditions which difficulties and those considerations must be would allow a search not to occur would be in considered, that should be stated explicitly rather regard to adoption. than a definition being made in this regard. I accept the Minister’s word on this and I am not Dr. Henry: I take Senator Mansergh’s point suggesting that anyone would interpret the about “may” being the word that is usually used provision otherwise but we need to be a little in legislation, but I am concerned about the use prescriptive on this. of the word “shall” in section 35. “May” is the word that is usually inserted, so why has the word Dr. Henry: We spent a good deal of time “shall” been inserted in section 35? earlier talking about the importance of paternity and of a child knowing his or her parents, but Mary Coughlan: It must refer to something that section 35 poses a major block to adopted has to be done. Section 35 deals with privacy and children in trying to find their parents. In these contains an imperative. It states that “No person days of much more open adoption, I do not know other than an tArd-Chla´raitheoir or a person how in tune that provision is with modern life. I authorised in that behalf by an tArd- am involved with people whom I would Chla´raitheoir shall be entitled . . .” It is a encourage to consider adoption and the Crisis compulsory requirement that the person shall not Pregnancy Agency. I know the Minister would have access unless there is a court order or the have read its report, which deals encouragingly adoption society advises the tArd-Chla´raitheoir with open adoption. Between that and the block otherwise. That is the most definitive way of in this section to checking registers, unless one saying that no one else will have access except can has a pretty good idea of one’s date of birth, the two people alluded to. The word “may” one cannot do the types of trawls people were means that people will be facilitated. able to do in the past. I am concerned about these The words “if any” in the section refers to the two sections. practicalities involved. If some 150 people were I do not believe the Minister or her officials standing outside Joyce House, the tArd- are trying to be devious in bringing forward the Chla´raitheoir would have to tell them that they would have to wait or come back tomorrow. On sections together, it is merely that both seem to that basis, a person could say that the registrar make matters difficult for adopted children trying cannot stop him or her looking up some to find their genetic parents. We spent the information, which the registrar could not. afternoon discussing how important that could be However, the practicality of the matter may be as between genetic mothers, gestational mothers that there is no room for the person to do so and and so on, and it could be very important the person may be asked to return tomorrow and especially from a medical point of view. Certainly may be given a time. The words “if any” are they are blocked by section 35 and also by this included on that basis. Such information is a section. Life is made much more difficult for matter of public record and therefore people are them than under the old registration bills. entitled to find out whatever information they I know people of my age who were adopted want to. The words “if any” are inserted to when nobody went around as a single mother provide for the practicalities of doing that. It with children. Those people were able to trawl enables a registrar to tell a person to come back the records of Holles Street, and they may have to the office another day, that the person will checked within a month of when they were born have access to computerisation or whatever. in case the registrations were not quite right. That does not seem possible now. I do not believe the Dr. Mansergh: Any library, archive or office Minister is trying to do people down but I am where one consults material, has rules and concerned that such people may be blocked at conditions governing the use of it. Otherwise one every turn. That is not what we are trying to do might, in theory, have a right to consult such here. records at midnight or at 3 a.m. When people are consulting records of this kind they normally Mary Coughlan: Section 35 provides for the agree to abide by whatever conditions are in transposition of the existing arrangements. As it place. Such conditions will not obstruct them stands, the tArd-Chla´raitheoir can release such from getting access to the record under normal information only on the order of the adoption conditions. board and of the courts. As Members will be aware, the Minister of State, Deputy Lenihan, is Mr. B. Hayes: I thank the Minister for her examining a new adoption Bill. If a decision is interpretation of those words, on which I made arising from that legislation which frees 915 Civil Registration Bill 2003: 18 February 2004. Committee Stage (Resumed) 916

[Mary Coughlan.] An Cathaoirleach: Amendments Nos. 35, 36 matters up and changes the modus operandi ,we and 47 are related and may be discussed together will reflect that in these legislative provisions. by agreement. Is that agreed? Agreed. This is a sensitive issue because there are two sides to the argument. There is a greater Mr. B. Hayes: I move amendment No. 35: openness in society now and greater comforts and In page 51, subsection (1), after line 48, to supports to deal with issues that may arise. From insert the following paragraph: a medical perspective, I am aware of an instance where access was provided under a medical “(c) on payment to him or her of the portfolio through the adoption society on the prescribed fee (if any) and subject to basis of a particular disease. On the basis of the subsections (3) and (4), shall be entitled to, public consultation that has taken place, the subject to such conditions (if any) as may Minister of State, Deputy Lenihan, has given a stand determined by an tArd-Chla´raitheoir guarantee that he will deal with this matter from (without the need of recourse to any index) a legislative point of view when dealing with search any adoptions. Until such time as that has been (i) register of births (whether in original completed, I do not consider it appropriate to go or other form) currently in the custody of a beyond what is in existence at present save, in Superintendent Registrar or registrar and effect, an amalgam of the registers. We have had compiled one hundred or more years a foreign and national register of adoptions and before the year in which such application now we will have one register. Furthermore, the is made; certificate will be available all over the country. (ii) register of marriages (whether in It was not and is not my intention to restrict original or other form) currently in the access to searches in any way. As I stated, we custody of a Superintendent Registrar or hope to provide an Internet facility. This would registrar and compiled sixty or more years be an excellent and very progressive way of before the year in which such application dealing with searches. The registrar would is made; naturally have to set down rules and guidelines on access to and interference with the public (iii) register of deaths (whether in record. It would be on this basis — in conjunction original or other form) currently in the with a consideration of the practicalities — that custody of a Superintendent Registrar or the registrar would decide on any variances with registrar and compiled twenty or more regard to access to searches. The provision will years before the year in which such only come into play if something untoward application is made.”. happens. These three amendments, all of which deal with The idea is that access will be greater. We can searches, aim to deal with some concerns raised now facilitate searches from people’s area of by people who work in this area. There is a residence rather than asking them to travel all the concern that the existing right to search locally way to Dublin to obtain information. Gaining and nationally could be taken away because of access will be quicker because the information is this section. An idiot-proof note I have received now available electronically. The work carried in respect of amendment No. 35 states: out by those in the GRO in Roscommon in Currently, under sections 50 and 52 of the transposing all the historical facts into electronic Births and Deaths Registration (Ireland) Act format has been tiresome, but they have done it 1880, searches may be conducted at the index brilliantly. The service that will be provided will volumes held centrally and in both indexes and result in greater additionality and a greater register books held locally. If effective service to anyone who wants to carry out a searching for both genealogical and legal search. In no way does it restrict anyone from purposes is to be promoted, then it is gaining access to what is, of course, a public imperative that searching actual register books record. held locally should continue. An Cathaoirleach: Is the amendment being There is a concern that if amendment No. 35 is pressed? not accepted, the practice currently in place will be discontinued. If the Minister is telling me she Dr. Henry: It is not but I am still worried by believes such a practice will continue and that the imperative in one section and “may” in this people will have the absolute right to search section. I will withdraw the amendment for now locally in all their local offices, I will accept her because I want to think about it. word. One must question the purpose of the GRO in ending this provision. Does the Minister Amendment, by leave, withdrawn. still insist on bringing forward an amendment to allow all register books currently held locally to Amendment No. 34 not moved. be centralised out of public access in Roscommon town? 917 Civil Registration Bill 2003: 18 February 2004. Committee Stage (Resumed) 918

Amendment No. 36, in my party’s name, Mr. McCarthy: It is not like electronic voting. proposes that a public genealogical search facility be established and maintained in the city of Mary Coughlan: We are not going down that Dublin. road. The existence of the copies should address the concerns of those who raised the issue with Mary Coughlan: We are doing that. Senator Brian Hayes. There is no legislative framework for moving Mr. B. Hayes: Yes, but as far as I am aware the GRO to Roscommon. Equally, there is no there is no legislative basis for doing so. Would it necessity for it, nor is there any necessity in a not be more sensible from a legal perspective to legislative framework to have a facility available address this in the Bill now, given that we are in Dublin. I have said — I believe the approach putting in place a civil registration code for the adopted is more prudent — that those who use next 15 to 20 years, as I have said repeatedly this genealogical services on an ongoing basis are afternoon? I am very happy for the people of usually students and academics. There are also Roscommon town because the GRO is now secondary users such as visitors who like to come based there. We all welcome it. to Ireland to check records. Moreover, people wish to have records from a practical perspective. Dr. Mansergh: It is a great credit to Albert The current setting of the facility is certainly not Reynolds. on the main tourist trail or a part of Dublin with which people are familiar. An Cathaoirleach: That is not relevant. Mr. B. Hayes: Off the beaten track. Mr. B. Hayes: Civil registration is a long way from former Deputy Reynolds. Mary Coughlan: They are slightly discom- moded in trying to find the facility. Once all the Mr. Wilson: At least he was civil, which is more information is available, we will have discussions than can be said for Senator Brian Hayes and his with the OPW to identify a more appropriate loc- colleagues given the underhand manner in which ation. Institutions such as the National Library, they dealt with the vote this evening. Trinity College and other buildings in Dublin would perhaps be more appropriate. I hope this An Cathaoirleach: That is not relevant. addresses the concerns raised. Any information that was available will now be Mr. McCarthy: Will the Senator be civil? available locally in electronic format. Dr. Mansergh: To clarify a point raised by Mr. B. Hayes: I am grateful to the Senator Brian Hayes, there are obviously certain Cathaoirleach. I am interested in hearing Senator circumstances in which historians or researchers Wilson’s views on amendment No. 35 and he will will want or need to consult the original. I have ample time to air them in a moment. remember a debate 20 years ago about whether the reputed grandfather of President Ronald (Interruptions). Reagan was listed as “John Regan” or “John Ryan” in the parish register at Kilbehenny, I An Cathaoirleach: Senator Brian Hayes believe. Obviously, one needed to look at the without interruption, please. original very carefully. Many of these registers were kept in manuscript, at least in days gone by, Mr. B. Hayes: Obviously there is trouble in the and therefore there could be instances where one Fianna Fa´il camp. It would be sensible to would need to look at the original rather closely. establish and maintain a public genealogical search facility in Dublin. What are the Minister’s Dr. Henry: To support what Senator Mansergh views on this? said, it is very important that people should have access to originals. I dread to think of people Mary Coughlan: The Senator referred to the copying my handwriting on to computer disks and older legislation. There were no indices at the people asking in years to come if my married time and when they became available it was name was McIntaggart or McEntaggart. Access possible to search them manually. They are now to original documents is terribly important. I being transferred to an electronic format. Perhaps support the—— I am presumptuous in believing that some prefer to be turning pages than checking information on Dr. Mansergh: Only a few would read it. a computer, but the exact same information will be made available in either case. The indices will Dr. Henry: That is right, if it is needed. In my be available locally, but electronically. father’s family, at one stage we were given a There was some concern about the back-up of family tree which showed what had been the electronic system, but the copies will always registered as my grandmother’s family and dear be held centrally. If every light in the world went Aunt Isabel had been totally written out. out, for example, we would still have the copies in the registrar’s office. Mary Coughlan: The woman was left out. 919 Civil Registration Bill 2003: 18 February 2004. Committee Stage (Resumed) 920

Mr. B. Hayes: There is obviously a good reason In page 52, subsection (2), line 26, to delete for that. “specified by the applicant”.

Mary Coughlan: I would like to assure the House that access to the original manuscripts will Dr. Henry: I would like to speak on section 62. continue to be available. An tArd Chla´raitheoir I am somewhat concerned that this section is will have jurisdiction over that but access will be limited. When I first came into the House, made available to people in particular Deputy Mervyn Taylor was Minister for Equality circumstances. and Law Reform and I tabled a matter on the Adjournment asking for a stillbirths register to be Mr. B. Hayes: I appreciate what the Minister set up. One of the reasons I asked for it to be has said. Presumably all of this material is not set up was because of the importance of knowing currently in electronic format. about stillbirths from a medical viewpoint, for example if there was a dump somewhere around Mary Coughlan: Nearly, but not all. the country and stillbirths were taking place due to toxicity in the area. Unless someone was Mr. B. Hayes: This new provision will kick in registering births there and noticing that there when it is in electronic format, but to take was a pocket of stillbirths, say within a 7 km Senator Mansergh’s point, nothing would prevent radius of the dump, much important medical data an historian or indeed anyone else, from getting would be lost. the original copy. The Minister is giving a Access to this register has been made so commitment on that. On another point as regards narrow that the same could be happening again. genealogical searches, the capital city has huge We could miss out on really important issues numbers of people arriving from other parts of about increased incidences of stillbirths. This the world, North America in particular, who want does happen. We know from epidemiological to find out about their heritage. Given that surveys that environmental factors can be Dublin is the capital city people will continue to important, so I am rather concerned how narrow use it above all other centres. However, in future the access to the register is. It can be important there is nothing to prevent any of this information to individual people. I am sure the Minister will being made available on the Internet, no matter have been aware of court cases recently in where people live. England regarding cot deaths.

Mary Coughlan: That is right. Acting Chairman (Mr. U. Burke): Is the Senator on section 62 or section 61? Mr. B. Hayes: That point has to be kept in mind. Dr. Henry: On section 62.

Dr. Mansergh: There are many church registers Acting Chairman: We must first dispose of all over the country which still have relevance. the amendments.

Mary Coughlan: We are trying to marry the old Dr. Henry: I thought Senator Brian Hayes had with the new while at the same time ensuring that withdrawn the amendments. access to original documents is available in particular circumstances. At the same time, the Mr. B. Hayes: No. view is that the Internet facility, as the Senator has said, will be of great benefit to people and Dr. Henry: I am sorry. A woman called Patel give access from a worldwide perspective. who was accused of being implicated in three cot deaths was eventually able to show that her Mr. B. Hayes: When does the Minister expect grandmother had a series of stillbirths. this to be rolled out?

Mary Coughlan: We are only at the Mr. B. Hayes: Amendment Nos. 37 and 38 may commencement stage and what is being referred be taken together, with the House’s agreement. to is the next phase. We want to do this correctly Amendment No. 37 is something I am not hung given it is so important and then we will be up about but the I am interested in the issue looking at developing the concept. contained in amendment No. 38. I think Senator Henry would agree that what the Minister is Amendment, by leave, withdrawn. doing here as regards the stillbirths register is a welcome development and she is to be Amendment No. 36 not moved. congratulated for it. However, an issue was raised with me, and I think it was something Senator Section 61 agreed to. Henry touched on. In section 62 the power to search the register of stillbirths is specifically SECTION 62. given to fathers and mothers. Is that not right?

Mr. B. Hayes: I move amendment No. 37: Mary Coughlan: It is given to parents. 921 Civil Registration Bill 2003: 18 February 2004. Committee Stage (Resumed) 922

Mr. B. Hayes: What I have suggested in our to attach such conditions as he or she considers amendment is that fathers and mothers should be appropriate to a consent under this subsection. deleted and substituted by “the father, mother, What normally happens is that the doctor or blood relation, or descendant of the parents of researcher applies to the Minister for Health and the stillborn child”. I am not hung up entirely on Children for access to that type of information. that, but I want to outline the reason behind it. If It must be done in that way because the Minister has another way of saying it that is 8 o’clock otherwise any person could seek vital more accurate than what I propose, all the better. information. Such information, People apart from the father and mother who which has always remained confidential, may only may be blood relations of the stillborn baby may be used for research purposes. As far as we are at some point in the future want to search the aware, there has never been a break of register for genetic and other reasons suggested confidence on issues such as how a person died by Senator Henry. I do not think it is a good idea or a stillbirth. Members who have viewed vital to prevent them from doing that. The father and statistics on cancer, heart disease and so on will mother would be dead, presumably, in most be aware of that point. The concerns expressed cases, but there are medical reasons why it would are covered by both sections. be important for someone, for example, to find out his or her genetic makeup. If the search is Amendment, by leave, withdrawn. limited simply to the parents are we not doing ourselves a disservice for the future? This point Amendment No. 38 not moved. has been raised with me and that is why we have put down the amendment. Question proposed: “That section 62 stand part of the Bill.” Dr. Henry: This is a serious issue. We now know that information obtained as regards Mr. B. Hayes: When this provision was first stillbirths can be extraordinarily important for introduced by former Minister Mervyn Taylor, a future pregnancies. We are totally excluding any parent could apply for a certificate within 42 days. medical practitioner from having a look at this The Minister is now increasing that to one year. data. I would go even further than Senator Brian Is it possible that the new provision could apply Hayes’s amendment. Perhaps the Minister could retrospectively to 1995, the year the legislation consider it before Report Stage. We all want the was introduced? Can parents of a stillborn child best for a child and for any subsequent children who did not realise this provision existed now a family may have. With advances in neo-natal register that stillbirth under the new provision? I medicine and genetics — this country is in the suspect I know what will be the answer. I am not forefront of these areas — we need to think about sure many people were aware they could register this. This could be terribly important for future stillbirths, although I know current figures in that pregnancies and to diagnose familial conditions. regard are increasing.

Mary Coughlan: All this information will be Mary Coughlan: The hospital concerned would available under vital statistics legislation. have registered the stillbirth if the parents did not do so after the four month period. Therefore, the Mr. B. Hayes: As a number. number of unregistered stillbirths would be low.

Mary Coughlan: Yes. Equated to that, in Mr. B. Hayes: Is the Minister saying that section 62, which relates to the search of the hospitals registered stillbirths independently of register, it will be seen that an tArd Chla´raitheoir the parent or parents? has the discretion to give access to that register Mary Coughlan: This provision was included in to others. the 1994 Act. Perhaps some people are not aware it exists. Mr. B. Hayes: Where is that? Dr. Henry: I hope the provision is applied as Mary Coughlan: It is on page 52 under the the Minister intends. We now know more about reference to searches of registers, paragraph (iii) the importance of genetics in such situations. It of which says: “in his or discretion, an tArd would be regrettable if people were refused such Chla´raitheoir, so determines,”. useful information. However, I do not think that will happen. Section 73(5) states: Information referred to in subsection (4) may Question put and agreed to. be disclosed to persons engaged in medical or social research or to medical officers of health SECTION 63. boards if the Minister consents in writing to the Mr. B. Hayes: I move amendment No. 39: disclosure and the disclosure complies with such conditions (if any) as are attached to the In page 52, subsection (2), line 47, to delete consent; and the Minister is hereby authorised “may” and substitute “shall”. 923 Civil Registration Bill 2003: 18 February 2004. Committee Stage (Resumed) 924

[Mr. B. Hayes.] occurs in the recording of particulars in the This amendment raises the “may” and “shall” registers. An error of fact would encompass any argument in relation to the correction of errors at omission of detail in the register. Therefore, the the request of a person having an interest in the legislation adequately addresses cases of matter. I will respond having heard the omissions as raised by the Senator. Minister’s reply. Mr. B. Hayes: So the Minister’s definition of Mary Coughlan: This section provides for the error covers omissions? correction of errors at the request of the person having an interest in the matter. The correction Mary Coughlan: Yes. of error requires that the superintendent registrar is satisfied that an error exists and that evidence Dr. Mansergh: Omission is a subclass of error. is produced to support the request being made. The proposed amendment would remove any Mr. B. Hayes: I will take Senator Mansergh’s discretion which the registrar would have in the word in that regard. correction of errors. That discretion must be retained in cases where, in the view of the Amendment, by leave, withdrawn. registrar, no error existed. The introduction of the word “shall” would provide that the registrar Amendments Nos. 41 to 43, inclusive, not must make the correction thereby removing his moved. or her discretion. Mr. McCarthy: I move amendment No. 44: Mr. B. Hayes: Would that be bad? In page 53, subsection (3), line 19, after “oath” to insert “or affirmation”. Mary Coughlan: One never knows. I am interested to hear the Minister’s reply to this Mr. B. Hayes: I will take the Minister’s word amendment which refers to affirmation. I will in that regard. respond having heard the Minister’s reply lest she would think I do not know what the amendment Mary Coughlan: The legislation provides for an is about. appeals mechanism for those unhappy with decisions made. Mary Coughlan: Section 63 provides for the correction of errors in the register of births, Amendment, by leave, withdrawn. stillbirths and deaths following a request by any person having an interest in the matter. The Acting Chairman: Amendments Nos. 40, 42 Office of the Parliamentary Counsel advises that and 45 are related and may be discussed together the provisions of section 22 of the Interpretation by agreement. Act 1937 provides that the word “oath” in the case of persons for the time being allowed by law Mr. B. Hayes: I move amendment No. 40: to affirm instead of swearing in includes In page 53, subsection (2)(a), line 2, after affirmation. As the provision in that Act allows “error” to insert “or omission”. for affirmation it is not necessary to qualify “oath” any further for civil registration purposes. This amendment also relates to the correction of errors. It is good that people can correct errors. I Mr. McCarthy: The Oaths Act 1888 which am sure a percentage of all registrations contain allows affirmation applies to administrative errors. The Minister has not included the word matters relating to proceedings. The Minister “omission”. It would appear sensible that a stated she had received advice on this from the person who realises there has been an omission Office of the Parliamentary Counsel. Did she can apply at some point to have that omission obtain advice on it from the Attorney General’s included. I am interested to hear the Minister’s office? How does it impact in terms of the Oaths views on this matter. It is good that we are Act 1888? providing for the correction of errors. I am reliably informed by my enormous back up team Dr. Henry: It is traditional that affirmation is that there is a 15% error rate on indices. I am allowed. The Minister will be obliged to return to concerned in this case about omissions. The the Lower House regarding the issue involving inclusion of that word would add to the the Church of Ireland. Could she not throw us a legislation. bone and allow for affirmation because it is traditional that it is allowed? It would be nice if, Mary Coughlan: The section provides for the when the Minister returns to the Da´il, she could correction of clerical errors and errors of fact in say that she accepted an Opposition amendment. the registers relating to birth, stillbirth and death at the request of the person who has interest in Dr. Mansergh: It may be contrary but the such matters. Decisions on such matters are being Minister’s reply appears to indicate that vested in the superintendent registrar. In affirmation is a sub-class of oath, at least for the principle, a clerical error is a minor mistake which purposes of the legislation. 925 Civil Registration Bill 2003: 18 February 2004. Committee Stage (Resumed) 926

Dr. Henry: We could have this argument over necessary to ascertain ...” Would it not be easier and over. to include after the word “may” the phrase “initiate and shall on request by an interested Mr. B. Hayes: And we now know who writes person in writing”? In other words, instead of the these replies. Ard Chla´raitheoir doing it willy nilly, an interested party could write to him or her and ask Mary Coughlan: I have been advised that the that it be done and a decision could then be Interpretation Act 1937 covers this issue. If taken. Perhaps it is already provided for but I Members wish to change that Act, they are believe the version I have outlined would give welcome to do so. However, the advice given to people the power to make submissions to the me by the Attorney General and the office on the basis of whatever reason they Parliamentary Counsel is that this is the usage wished to offer. The officer holder could then that is acceptable for affirmation. decide whether to investigate.

Mr. McCarthy: I accept that the Minister has Dr. Mansergh: Whatever about its merits, the received advice to the contrary but no one has amendment is too strong. It uses the term “shall explained how the Oaths Act 1888, which may on request” which removes any discretion. It only apply to legal proceedings, applies to seems that if somebody makes a request, the administrative matters. registrar should have the right to look at it critically and decide whether to initiate an Mary Coughlan: I apologise to the Senator but inquiry. I did not read the Oaths Act 1888 before coming before the House. I am, therefore, not au fait with Mary Coughlan: The Senator is correct. We its contents. I am of the view that, without a have spoken about the ability of the Ard doubt, the interpretation that has been afforded Chla´raitheoir to institute an inquiry. He or she to us is one which is taken from a traditional may do so on his or her own initiative or as a perspective in the House. result of information that comes to his or her attention. There is nothing to stop someone Dr. Mansergh: The Minister stated earlier that writing to the Ard Chla´raitheoir and requesting the Act was superseded. that an investigation take place on the basis of section 65(1)(a) (i) and (ii). Spurious requests, Mr. McCarthy: There is an issue here in terms which would not stand up to scrutiny, could be of administrative matters as opposed to legal made to the Ard Chla´raitheoir. If we introduce proceedings. In any event, I thank the Minister the word “shall”, the Ard Chla´raitheoir would be for her reply and I will withdraw the amendment. compelled to carry out an inquiry if such a However, this matter needs to be considered, request was made whereas that might not be the particularly in terms of future legislation, because right thing to do. We are being over-prescriptive it is clear that there is an issue in respect of the to allow the flexibility for the Ard Chla´raitheoir. interpretation of affirmation via the Oaths Act 1888. I did not expect the Minister to have read Mr. B. Hayes: One person’s irrelevance is that Act before she came before the House. another person’s relevance. Amendment, by leave, withdrawn. Mary Coughlan: That is true. The Senator can Section 63 agreed to. appeal.

Amendment No. 45 not moved. Mr. B. Hayes: If the registrar decides against an applicant in respect of this matter, can he or Section 64 agreed to. she appeal the decision?

SECTION 65. Mary Coughlan: The other issue is that if we introduce the term “initiate and shall on request Mr. B. Hayes: I move amendment No. 46: by an interested person in writing”, the Ard Chla´raitheoir could not, of his or her own In page 55, subsection (1), line 5, after “may” volition, carry out an inquiry. The Ard to insert “initiate and shall on request by an Chla´raitheoir may discover, for example, that a interested person in writing”. double registration of a birth occurred. If he or This section is designed to allow the Ard she is restricted, an investigation can only be Chla´raitheoir to initiate inquiries. The done on the request and at the behest of someone amendment suggests inclusion of the words — else as opposed to being done on the registrar’s they may not be necessary but I would be initiative. We would, therefore, be limiting the interested to hear the Minister’s reply — “initiate registrar to a huge degree. We could have a and shall on request by an interested person in situation where we would restrict the registrar’s writing”. Section 65(1) states that the Ard initiative or where an investigation would have to Chla´raitheoir “may conduct or cause to be take place in respect of a spurious matter. I agree conducted such enquiries as he or she considers with the Senator that inquiries must be carried 927 Civil Registration Bill 2003: 18 February 2004. Committee Stage (Resumed) 928

[Mary Coughlan.] entered in the register of births and stillbirths. out. People will always have recourse to the The Civil Registration Service is required under appeals mechanism. the Vital Statistics Act 1952 to collect information concerning life events including births. The Mr. B. Hayes: Is the Minister stating that if the service is required under the Act to record the answer is negative the applicant may initiate an marital status of the child’s mother when appeal? registering a birth. It is used to determine if the presumption of paternity of the husband applies Mary Coughlan: Yes. and also to determine whether section 22 of the Bill, which addresses instances in which the Amendment, by leave, withdrawn. parents are not married, applies. To address Senator McCarthy’s concerns, marital status does Section 65 agreed to. not appear on the birth certificate as that would be inappropriate. It is only recorded for Sections 66 to 73, inclusive, agreed to. statistical purposes. During the extensive Committee Stage debate NEW SECTION. in the Da´il, it was stated that in the interests of equality, the marital status of the father should Mr. B. Hayes: I move amendment No. 47: be included. I agreed to that proposal and In page 62, before the First Schedule, to provided for the requested amendment on insert the following new section: Report Stage. Therefore, the provision the “74.—An tArd-Chla´raitheoir will, in Senator seeks has been made. consultation with the Director of the Amendment, by leave, withdrawn. National Archives and the National Archives Advisory Council, formulate and publish a Amendment No. 49 not moved. policy document or statement setting out a framework for greater public access to civil Ms O’Rourke: If necessary, Committee Stage registration registers or register books where of the Bill can be extended to 9 p.m. one hundred or more years have elapsed since the date of creation of the last entry in Acting Chairman: Is that agreed? Agreed. such register(s) or register book(s).”. Amendments Nos. 50 and 54 are related and may This amendment is self-explanatory. It seeks that be discussed together, by agreement. the registrar, in consultation with the director of the National Archives and the National Archives Mr. B. Hayes: I move amendment No. 50: advisory council, formulate a policy concerning In page 63, Part 1, between lines 14 and 15, records over 100 years old. This is a novel to insert “Place of birth of mother.”. amendment which suggests the insertion of a new section which would, in effect, force the bringing Amendments Nos. 50 and 54 represent an about of joined-up Government. However, I attempt to place more information on the register believe that the latter would be a good by seeking to include the places of birth of the development. In the Lower House, the Minister mother and father of a child. The inclusion of this stated that the National Archives already have information would be of great assistance to access to the GRO’s information. genealogists and would help to ensure that people knew where their mother and father were born. Amendment put and declared lost. The information would represent a useful addition to the register of births. FIRST SCHEDULE. Mary Coughlan: Part 1 sets out the required Mr. B. Hayes: I move amendment No. 48: particulars which shall be registered in respect of a birth. Additional information will be required In page 63, Part 1, line 14, to delete “Marital to be registered including the personal public status of mother” and substitute “marital status service numbers of the child and his or her of parents of child”. parents, the dates of birth of the father and Fine Gael’s proposed wording is more mother and their marital status. It will also be appropriate. necessary to record the birth surnames of the father’s mother and the mother’s mother. The Mr. McCarthy: Amendment No. 49 is proposed particulars required to be registered for a birth because it is offensive to persons to require them were first set out in 1863 and remained to produce in the future a birth certificate which, unchanged until updated by the Registration of not for the first time, states whether or not their Births Act 1996. The 1996 Act provided for the mother and father married. It is inappropriate to registration of a surname for a child, the mother’s say the least. address and the occupation and former surname of the father. Those particulars were further Mary Coughlan: Parts 1 and 2 of the First amended by the Social Welfare (Miscellaneous Schedule set out the required particulars to be Provisions) Act 2002 which provided for the 929 Civil Registration Bill 2003: 18 February 2004. Committee Stage (Resumed) 930 registration of the personal public service number mother’s mother, but not the surname of her in respect of each of the parents and the father. In a minority of cases, the surname of the assignment of a personal number to the child. father would be different but this information will These changes were required to facilitate the go unrecorded. introduction of the new electronic civil registration system. Mary Coughlan: The Senator is requesting the Part 1 of the First Schedule includes other recording of the surnames of maternal changes among which is the recording of the grandfathers. The birth registration will include marital status of the mother and the father, the the personal public service number allocated to surname at birth and any other surnames of each the child and the parents’ personal public service of the parents of the child and the details of each numbers. The system has been designed to parent’s mother’s birth surname. This additional capture information in the event of a birth or information is required for the allocation of the stillbirth using standard naming conventions. child’s personal public service number, the These include one’s forename and the surname in verification of the parent’s personal public service common usage across Departments and agencies. number, the creation of family relationships The combination of the date of birth and the between the child and the parents, the mother’s birth surname uniquely identifies a administration of a person’s public service person in the vast majority of cases. The mother’s identity set and the auto-triggering of a child birth surname is therefore vital in the validation benefit claim. The additional information to be of the personal public service number. As part of captured by this amendment is not required for the registration process a personal public service the purposes of registration, vital statistics or the number is allocated to the child, the parents’ allocation of a personal public service number. personal public service numbers are validated or The amount of information and the cross- traced, a relationship is created between the child tabulation in place are more than adequate. and the parents and a claim for child benefit is automatically triggered to the Department. There Dr. Mansergh: I have some sympathy with this is no requirement to collect the mother’s father’s amendment. While everything the Minister has or the father’s father’s birth surname from the said is absolutely accurate, genealogical family registration or personal public service number research constitutes another side of this albeit a validation perspective. secondary one. If the information could be The Bill is drafted to provide that a birth may recorded where available without overloading the be registered by the parents, surviving parent or system, it would be helpful to genealogists. It is other specified qualified informant. Part 1 of the difficult to think of instances in which the First Schedule allows for the assignment of a information might not be available, although it combination of both parents’ surnames or either could be the case with migrant parents who might parent’s surname to the child. The parents, or a be a little vague about where they were born. parent if one is deceased or cannot be traced can, Genealogy is a significant industry. A great many if they so wish, apply to assign a surname other tourists come here in search of their roots. They than their own name or a combination of their do not just come to Dublin or, for that matter, names to the child. Roscommon, they go all over the country. I ask It is not proposed to extend this provision to the Minister to examine the proposal. If she any person other than the parents. The Deputy is cannot accept the amendment tonight, she should trying to circumvent some of the searches and at least consider it before Report Stage. insist on having grandparents’ information on the birth certificate. That is not necessary because the Mr. B. Hayes: To facilitate the Bill’s progress, I PPS number will be established, as will a link would be happy to return to the matter on Report between the child and the parents, as a Stage. There are other matters to discuss and I consequence of the number being there. gave the Minister a commitment to conclude Committee Stage. Mr. McCarthy: Will the PPS number lead to that kind of information? Amendment, by leave, withdrawn.

Acting Chairman: Amendments Nos. 51, 55, 60 Mary Coughlan: Yes. It will form a link. and 62 are related and may be discussed together, by agreement. Amendment, by leave, withdrawn.

Mr. McCarthy: I move amendment No. 51: Amendments Nos. 52 to 56, inclusive, not moved. In page 63, Part 1, line 16, to delete “surname of mother’s mother” and substitute Mr. McCarthy: I move amendment No. 57: “surname(s) of mother’s parents”. In page 63, Part 1, line 31, after “either” to The Bill introduces further gender discrimination insert “or both” in the particulars required to be registered on a birth certificate. For the first time, the birth The existing law under the 1986 Act allows a certificate will record the surname of the child to be given a double-barrelled surname 931 Civil Registration Bill 2003: 18 February 2004. Committee Stage (Resumed) 932

[Mr. McCarthy.] that behalf or a Superintendent Registrar is consisting of the surnames of both parents. I satisfied that the circumstances warrant it and presume that is the intention of the Bill. he or she agrees to the request).

Mary Coughlan: Yes. A father could be devious and include a surname that would be outside the ambit of the Act and it Mr. McCarthy: Yet the reference to both is on that basis that one must reserve the right surnames in the 1986 Act is being deleted. For for parents only. One cannot expand that role. It the avoidance of doubt, I wish to reinstate the comes under the Status of Children Act. provision by means of this amendment. Accordingly, we must ensure that a child’s name could not be changed. Mary Coughlan: Part 1 of the First Schedule sets out the required particulars to be entered in Mr. McCarthy: By an act of mischief or the register of births. The provision in paragraphs deviousness, as the case may be. (a) and (b) of Part 1 of the First Schedule allows the parents or a parent if one is deceased or Mary Coughlan: Yes. It is on that basis that we cannot be traced to assign a surname other than are keeping it tight. their own name, or alternatively a combination of their names for the child, which is what the Mr. McCarthy: It is a safeguard as such. Deputy mentioned. As the existing provisions cater for the objective of this amendment, I do Mary Coughlan: It is a safeguard to ensure that not see the necessity of having another. We cater this would not befall a child. for what the Deputy wishes to provide. Amendment, by leave, withdrawn. Mr. McCarthy: Which section is that? Amendments Nos. 59 to 62, inclusive, not Mary Coughlan: It is in Part 1 of the First moved. Schedule. Mr. B. Hayes: I move amendment No. 63: Dr. Henry: I want to be clear, and I believe the In page 65, Part 5, between lines 36 and 37, Minister made it clear earlier, that there will be to insert the following: cross-indexation so that a child would be registered as “Murphy Lawlor” and “Lawlor “Forename(s) and birth surname of father Murphy”. of deceased. “Forename(s) and birth surname of Mary Coughlan: Yes. The name is traced back. mother of deceased.”. Amendment, by leave, withdrawn. The purpose of this amendment is to change the death certificate to include the forename or Mr. McCarthy: I move amendment No. 58: names and birth surname of the father and In page 63, Part 1, line 37, after “contacted” mother of the deceased. As I understand it, this to insert “or by the informant if both parents data is currently recorded in both the birth and are dead or cannot be contacted after reasonable marriage certificates. I am proposing to extend to efforts to do so have been made”. the death certificate the data already in place in two other certificates. For the sake of consistency This amendment is designed to rectify an it should be included in the death certificate. omission in the Bill. The 1986 Act allowed an I know the Minister advanced this issue some informant to propose a surname for the child in time ago in agreeing to the place of birth being the event of the parents being dead or inserted. That was a very welcome change which uncontactable, but this provision has been we appreciate, but it would be useful to go the omitted in the Bill. full circle, so to speak, and extend it further, given the connection we have in this country with Mary Coughlan: The parents or parent can names, places, history and genealogy, which is apply to assign a surname other than their own important not just as an industry, but in terms of name, or a combination of their names. It is not who we are, where we come from and who are proposed to extend this provision to any person our relations and forefathers. I ask the Minister other than the parents. When a child is born it to consider this issue. She has already conceded naturally has parents. The Senator is asking that one new section in the death certificate. We are another person be allowed the right. Paragraph very much out of line with other countries when (b) of the First Schedule refers to: it comes to information contained in the death such other name as may be requested by certificate. We should try to upgrade it and both of the parents or by one of them if the include as much information as possible, for all other is dead or, after reasonable efforts to do the reasons stated earlier. so have been made, cannot be contacted (if an tArd-Cla´raitheor or an officer of an tArd- Dr. Mansergh: There is considerable force in Cla´raitheor duly authorised by him or her in this amendment for the reasons stated by Senator 933 Civil Registration Bill 2003: 18 February 2004. Committee Stage (Resumed) 934

Hayes. It can be argued that the place of birth Mary Coughlan: My officials are looking for a allows one to make the connection, but to do so marriage certificate; it is a while since I saw my imposes more work on the researcher. In the case own, and we had to go before the judge to change of certain very common names, such as “John it. A birth certificate only shows the names of the Ryan” in Tipperary, for example, this could lend parents, not the grandparents, which is what this itself to confusions of identity. I urge the Minister is trying to do. The Senator is going back another to look sympathetically at the amendment. generation. The next linkage can be done through Obviously, it is almost entirely for the benefit of the information made available to the person. genealogists as opposed to its more general mainstream function, but if the Minister was to Dr. Mansergh: We are only talking about the accept any amendment arising from this evening’s father and mother of the deceased, not the discussion, this is the one I would recommend to grandparents of the deceased. her. Mr. B. Hayes: We refer to the birth surname of Mr. B. Hayes: This is also very important for the father of the deceased and the birth surname of the mother of the deceased. We will come back generations in 50, 60, 70 or 80 years’ time, who to this on Report Stage. I do not want to unduly will not have known their grandparents and want delay the House on it. to develop a family tree. Those people — amateur genealogists perhaps — could then find Dr. Mansergh: If I may make one other point, the information on the death certificate. People there may be a good deal of validity in what the need to know where they are from and who their Minister says about electronic researching but forbears were, and having this information on the these things are used for many purposes, death certificate would be a great advantage to including family purposes. We do not have a fully people who want to know that type of electronic society. There is a good deal of validity information. in what the Minister said about the register but it is a mistake to think that 60 year old Australians Mary Coughlan: Part 5 of the First Schedule or 70 year old Americans are completely sets out the required particulars to be registered computer literate. in respect of a death. The following additional I would emphasise that this is a very important information will be required to be registered: The economic branch. In the late 1980s, Charles date and place of birth; birth surname, address Haughey established a sort of family plans office and PPS number of the deceased person; the date to encourage this type of activity as an aid to of certificate of cause of death; forename, tourism. It is a bit like all airlines deciding that surname, registered qualification, daytime one can only book over the Internet. We are still telephone number and the business address of the some considerable distance from that. Perhaps registered medical practitioner; the date of some tolerance should be allowed for the fact that certificate of cause of death; forename, surname, we are not a totally electronic society in terms of registered qualifications, daytime telephone these type of paper records instantly flying from number and business address of the coroner; and one computer to another. the forename, surname, office of the coroner and date of inquest or post mortem, as appropriate. Mr. B. Hayes: The PPS issue is a future issue. One of the concerns expressed to me, particularly by the genealogical people, is that Mary Coughlan: Yes. this is an opportunity to lessen their need to look back over records but that view is reflected in Mr. B. Hayes: It will not affect the past. These terms of a paper based society whereas the inter- changes will be physical changes to the record, if linking from an electronic point of view will now this amendment is accepted, from now into the be almost instantaneous. One will not have to future. It will be 60 or 70 years before the PPS issue will have any effect in terms of any physically go through all of the information. One genealogical benefit. keys in the information available and that link will be made. I appreciate that people are sincere Mary Coughlan: If God spares us, none of us in their view but having discussed this issue with will be dead. an tArd-Chla´raitheoir and staff in his office, they are of the view that they will be able to facilitate Mr. B. Hayes: People are interested in who as quickly as possible any information that may went before them. be requested from a genealogical point of view through the electronically based system which Mary Coughlan: Prior to all this legislative will now be provided. change, genealogists involved themselves in performing these searches. What they are Mr. B. Hayes: Why is there an inconsistency expecting is that we will now do that for them. between the marriage certificate and the birth We have accepted two amendments on behalf of certificate in respect of this information? Why is the Genealogical Society of Ireland, one to do it not contained in the death certificate as well? with the date, place of birth and the birth 935 Civil Registration Bill 2003: 18 February 2004. Committee Stage (Resumed) 936

[Mary Coughlan.] recorded and not his or her name. Perhaps the surname of the mother in order that people Minister might explain the reasoning behind that. would have greater access. With regard to computerisation, I appreciate Dr. Henry: The Minister and I travel under what the Senator is saying. Many people are different names than those of our spouses. This afraid of computers, and older people certainly provision is vital, otherwise we might get left out do not want to know about them. I have been on the certificate which will just refer to advised that assistance will be made available to distinguished Members of Da´il E´ ireann and such people in the office where the searches will Seanad E´ ireann. It is important that the name of take place. the spouse should appear on the death certificate.

Mr. Ryan: Just like in a polling station. Mary Coughlan: When David dies he will not care whether my name is on the death certificate. Mary Coughlan: No. That independent evaluation will be a separate issue and will not be Mr. B. Hayes: I suspect he will worry about the a matter for me. Minister’s PPS number on the death certificate when she is dead. Ms Feeney: One’s vote is private. Mary Coughlan: He will be looking for the Mr. Ryan: I gather the paper records will be pension. kept. Part 5 of the First Schedule of the Bill provides for the particulars of death to be entered. It is not Mary Coughlan: Yes, we are keeping the considered necessary for registration purposes to paper records. collect the name of the spouse of the deceased person. Such proposal could lead to distress or Mr. Ryan: The Government does not trust the confusion for the deceased’s family in certain electronic system. circumstances, for example, where the parents are separated or divorced. An issue could arise in Mary Coughlan: No, that is not the reason. It that case. is just that we do not trust the rest of them. Mr. McCarthy: The reason we will not include Mr. Ryan: That is another way of saying the the details in terms of his or her name is because same thing. of circumstances where the marriage has broken down, separation or divorce. Mary Coughlan: The Senator asked me to consider an amendment. There would be an Mary Coughlan: Yes. A problem could arise in additional cost to an tArd Chla´raitheoir’s office such cases, although sometimes it is not a legal to provide the additional information, given that issue. One cannot expect the Ard Cla´raitheoir to we have accepted two further amendments go around searching, when a person dies, to see following consultation with the Genealogical whether they were divorced or separated or had Society of Ireland on access to records. a judicial separation. If that information is introduced, in some instances it could cause angst Mr. B. Hayes: I will withdraw the amendment among families. and the Minister might consider this issue between now and Report Stage when I will table Mr. McCarthy: Is marital breakdown the chief it again. It appears Senator Mansergh wants to consideration? help me out. Mary Coughlan: Yes. Dr. Mansergh: What the Minister says makes perfect bureaucratic sense but our Civil Service Mr. McCarthy: It also takes account that where and public service agencies should think the spouse was divorced, it may lead to distress commercially as well as bureaucratically. The among family members. answer makes a lot more bureaucratic sense than commercial sense. Mary Coughlan: That could happen.

Amendment, by leave, withdrawn. Mr. McCarthy: I just think it is inappropriate. I appreciate the Minister’s response. Mr. McCarthy: I move amendment No. 64: In page 66, Part 5, line 2, after “the” to Amendment, by leave, withdrawn. insert “name,”. Question proposed: “That the First Schedule Part 5 states: “If deceased was married, the be the First Schedule to the Bill.” profession or occupation of spouse,”. It is a little strange that on a married person’s death Mr. B. Hayes: In the First Schedule, Part 1 certificate the Bill requires only that the deals with registration of births, Part 2 deals with profession or occupation of the spouse is registration of stillbirths, Part 3 deals with the 937 Water and 18 February 2004. Sewerage Schemes 938 registration of adoptions within the State, Part 4 (a) (i) notify any registrar in writing in a deals with the registration of foreign adoptions, form for the time being standing approved Part 5 deals with registration of deaths, Part 6 by an tArd— deals with the registration of decrees of divorce, Cla´raitheoir of their intention to marry not and Part 7 deals with the registration of decrees less than less 3 months prior to the date on of nullity. which the marriage is to be solemnised, or Mary Coughlan: Yes. (ii) are granted an exemption from the application of sub-paragraph (i) under Mr. B. Hayes: Where is the issue of marriage? section 47 and give a copy of the court order granting the exemption to any registrar Mary Coughlan: It is contained in sections 51 before the date aforesaid. to 58, inclusive. The approval of an tArd-Cla´raitheoir must be given. The issue is that there may be a necessity Mr. B. Hayes: Why is it not set out in the First to introduce a regulation. Schedule? Normally the First Schedule is where all the particulars on each of the certificates Mr. B. Hayes: Why is it not in the First would be held. All of these life events are usually Schedule? mentioned in the First Schedule but marriage is not mentioned. What is the reason for that? Mary Coughlan: I cannot answer the question because I do not know. I have absolutely no idea why it is not in the First Schedule. I am sure it is Mary Coughlan: To be perfectly frank, I have technically and legally possible. I assure Members absolutely no idea. I will find out and when I return next week, I will let them know. Dr. Henry: It would be useful to know what exactly has to be on a marriage certificate. Mr. B. Hayes: I thank the Minister.

Ms O’Rourke: I, Mary Browne, take you, Question put and agreed to. John Browne—— Second Schedule agreed to. Mary Coughlan: The new certificate looks shorter. Senator McCarthy might need one when Title agreed to. he is getting married. On it will be the names of the man and woman, their respective surnames, Bill reported with amendments. any other surnames; their dates of birth; their current addresses, their future address; their Acting Chairman: When is it proposed to take Report Stage? respective occupations; their marital status; the mothers’ birth name of both; the fathers’ name of Ms O’Rourke: Next Tuesday. both; the date of marriage; the signature of the witnesses; the solemniser as well as the name of Report Stage ordered for Tuesday, 24 the registrar, the district of the registrar, their February 2004. superintendents’ district, the county, the date of registration and the registration number. It will Acting Chairman: When is it proposed to sit contain quite an amount of information. again?

Mr. B. Hayes: Any changes we try to effect are Ms O’Rourke: Tomorrow at 10.30 a.m. normally held within the First Schedule because it sets out exactly what needs to be done. I accept Adjournment Matters. that the Minister said it was contained in the sections but why is it not contained in the First ———— Schedule? The 1952 Act concerning marriage certificates was the last legislation in this area, if Water and Sewerage Schemes. we are changing it why is marriage not included in the First Schedule? Mr. U. Burke: I wish to raise the urgent need for the Minister for the Environment, Heritage Mary Coughlan: We have to specify it by and Local Government to approve the regulation. It takes into consideration a number preliminary report for Galway County Council on of other issues, in particular, section 46 which the provision of a sewage treatment system at states: Kinvara, County Galway, and provide funding to prevent the ongoing discharge of untreated A marriage solemnised in the State, after the sewage into the coastal bay at a rate of 50,000 commencement of this section, between gallons per day in an important tourist area. persons of any age shall not be valid...unless As a result of the publication of the recent the persons concerned— EPA report, which outlined the serious situation 939 Water and 18 February 2004. Sewerage Schemes 940

[Mr. U. Burke.] drawn up with co-operation between a local where a quarter of the sewage in the country was community and the advance planners of the being released untreated into rivers, bays and county council. A wonderful plan has been estuaries, if we are to comply with EU directives prepared and is in place for the improvement and we will have to change our ways. Kinvara, County development of Kinvara. At the same time, that Galway, is one of the few coastal towns which development cannot be allowed to go ahead discharges raw sewage at the rate of 50,000 per because 50,000 to 60,000 gallons of untreated day. That discharge is increasing at the rate of sewage goes into the bay each day. 10% per annum. We cannot allow this to Kinvara is adjacent to and has always been an continue. The preliminary report has been sent important shellfish area. However, oysters are by Galway County Council to the Department of the Environment, Heritage and Local long gone and although mussels are present, out Government and is with the Department for of 37 water samples taken, 35 were seriously some time. I seek the immediate approval of this polluted, one was acceptable and one reasonably preliminary report and the provision of funding polluted. Kinvara is also a very important tourist for the service. Ca´irde Cuan Kinvara has area. Despite these factors, a quarter of the total undertaken, at its own expense, an in-depth amount of local sewage is released untreated by report on the quality of water in the bay. Due to the local authority into the waterways. I ask the the uniqueness of the bay there is a high volume Minister, Deputy Coughlan, to convey to the of underground river fresh water entering the bay Minister for the Environment, Heritage and at the southern end. Local Government the absolute urgency of a Due to the narrowness and length of the bay, response in regard to this issue, which has been which is approximately three miles long, great called for time and again and should be made difficulty arises because of salt sea water mixing before the issue is highlighted in a more serious with the fresh water coming into the way. 9 o’clock bay on the quay side, with the result The water quality has been condemned; it that there is stagnant sewage in the cannot be used for drinking or even for inner bay at Kinvara. Not only is there obvious recreational purposes and has been clearly shown discolouring of the water, but its content and quality is seriously affected. The presence of to be unacceptable by European standards. The e.coli has been monitored by the Western Health smell and appearance of the water is totally Board and the county council. All the agencies unacceptable and it would be a disgrace if this involved have found it to be seriously above not situation was allowed to continue, especially at only national limits, but also European this time when we are trying to achieve our guidelines. The situation will become very serious European goals by responding to EU directives. if this is allowed to continue, especially as it is the Minister’s goal to adhere to European directives Minister for Social and Family Affairs (Mary in regard to the quality of water. It is also a Coughlan): Gabhaim buı´ochas don Seanado´ ir an serious and current topic given that the Water tseirbhı´s tha´bhachtacht seo ina dha´ilcheantar a Services Bill 2003 came before the House some lua. I would like to give a brief overview of the weeks ago. major investment being made by my Department I ask that the Minister provide funding in improving water services infrastructure in specifically for this project. As this issue is so far County Galway and throughout the country back on the county council priority list in regard under the national development plan. Last to preparation, design and preliminary reports, it August, the Minister for the Environment, might otherwise be many years before it could be Heritage and Local Government, Deputy Cullen, addressed. I emphasise that one of the best blue published the Water Services Investment flag beaches in County Galway is next to Kinvara Programme 2003-2005. Made up of 737 schemes at Tra´cht. If prevailing winds did not take the at different stages of development, with a total currents away from the area, that wonderful investment value of 5.4 billion, it is the most beach would be seriously polluted. significant milestone yet in the push to bring our I ask that the Minister make this issue a water services infrastructure up to a world priority, approve it and allocate the necessary standard. funding to Galway County Council. Kinvara is The total allocated to Galway county and city probably the only coastal town in the country in under the latest phase of the water services this condition. As far back as 19 November 1997, programme comes to almost 465 million, after I first entered the other House, I asked the extending to some 54 individual schemes. It then Minister to provide funding but he did not includes the recently completed treatment works have the preliminary report with which he could for the Galway main drainage scheme, as well as advance it. This was subsequently provided. major sewerage projects for Knocknacarra, Through the initiatives of local people, in Headford, Athenry, Barna, Clifden, Oughterard, conjunction with the county council, a unique Tuam, Carraroe, Glenamaddy, Milltown, plan has been prepared for a very sensitive town Ballinasloe, Kilronan, Dunmore, Craughwell, — sensitive in so far as it was the first town plan Corofin and Claregalway. It also includes major 941 Schools 18 February 2004. Refurbishment 942 water supply schemes for Galway city, Carna- project is at architectural stage. The school and Kilkieran, Headford, Gort, Tuam, the Costelloe the board of management want the project to be area — I am sure that is the Gaeltacht, which brought to advanced architectural stage within would not be known as Costelloe — Ballinasloe, the next few months, with the possibility of it Loughrea and Clifden. Funding has also been going to tender in 2005. The board of provided under the serviced land initiative to management encompasses a wide range of people bring additional residential sites on stream as from different backgrounds who have a common rapidly as possible to meet housing needs at a goal. The common goal is that this project, which number of locations around the county, dates back to 1984, a distant memory, must be including Kinvara. brought to fruition. It is clear from all of this that a large number of One of the main features on the night of the towns and villages in County Galway are directly public meeting was that it was not just present benefiting from the drive to bring our water and day pupils and their parents who attended, past sewerage infrastructure up to a modem standard. pupils and their parents were also invited. There I am pleased to say that the investment were two generations in the same prefabricated programme also includes a new sewerage scheme building, and the message was clear. I want to for Kinvara, which has been approved to go bring to the Minister of State’s attention that the through planning. A preliminary report has been timeframe must be given top priority. These received from Galway County Council for this people have done their own fund-raising and scheme. It is being examined by the Department implemented short-term measures by bringing in of the Environment, Heritage and Local new prefabs and so on. They feel they are being Government and Galway County Council will be discriminated against for keeping things in place, informed of the outcome as soon as possible. sellotaping or putting band aids on the problem. I have listened to the Senator’s views on the It appears there is a good school system in place impact on the economy and tourism as well the but I believe they are being discriminated against personal impact of the lack of a sewerage scheme for keeping the building in a good state of repair. at Kinvara. I will advise the Minister for the While it is the Minister, Deputy Dempsey’s, Environment, Heritage and Local Government to brief, I know the Minister of State will convey to take into account the issues raised by the Senator him my concerns. I want to put on public record and will ensure that the examination of the that this is a non-political lobbying process, which preliminary report for the scheme takes place as has received backing from all parties. The project quickly as possible. dates back to 1984, when I was just beginning secondary school. That is how far back the issue goes. These people deserve some timeframe or Schools Refurbishment. indication of when the tendering process will Mr. McHugh: I wish to raise an issue regarding begin. I look forward to the Minister of State’s Ballyraine national school which was brought to reply. my attention in recent months by the school board of management. Lobbying in this regard Minister of State at the Department of Health has been ongoing since 1984. The board of and Children (Mr. T. O’Malley): I thank Senator management began some months ago to try to McHugh for giving me the opportunity to outline move the refurbishment project forward and they to this House the Department of Education and have tried to make this process as non-political as Science’s proposals regarding the proposed possible. Last Monday week, they met privately refurbishment and extension project at Ballyraine with the Minister of State at the Department of national school, Letterkenny, County Donegal. Transport, Deputy McDaid, and with Deputy The Department received an application from Keaveney. In addition, they held a public meeting the board of management of the school in August at the school, to which I and Deputy Blaney were 1999 requesting the provision of additional invited. They are trying to keep all the parties accommodation. A full design team has been together on this issue. The major theme on the appointed and architectural design of the project night was that the school cannot continue to allow is progressing. The project is currently at stage 3 the pupils to suffer the experiences they have of architectural planning — detailed plans and endured. The major theme was that they can no costs. It has been assigned a ’band 2’ rating by longer accept these conditions — lack of space the Department in accordance with the published and a lack of basic infrastructure to create a criteria for prioritising large-scale projects. proper learning environment — for their Ballyraine national school building project is children. listed in section 8 of the 2004 school building Guarantees have been given across the political programme. I am pleased to inform the Senator spectrum at local level to bring the lobbying that the projects listed in section 8, including the process to fruition by early 2005. The Minister’s Ballyraine national school project, will be reply to parliamentary questions from various authorised to progress to advanced architectural politicians have been consistent, namely, that the planning during 2004. 943 The 18 February 2004. Adjournment 944

[Mr. T. O’Malley.] in this year’s programme, including Ballyraine The budget announcement regarding multi- national school, Letterkenny. The Minister will annual capital envelopes will enable the make a further announcement in that regard Department of Education and Science to adopt a during the year. multi-annual framework for the school building programme which, in turn, will give greater The Seanad adjourned at 9.15 p.m. until clarity regarding projects that are not progressing 10.30 a.m. on Thursday, 19 February 2004.