Senators raise Atheist Ireland concerns and proposals about religious job discrimination law

The concerns and proposals raised by Atheist Ireland in our briefing document to Senators were raised in the Seanad today, during a Committee Stage debate on Section 37 of the Employment Equality Act. This is the Section that allows religious institutions, including schools and hospitals, an exemption to discriminate against employees to protect the religious ethos of their institution.

We would like to thank Senators Katherine Zappone, David Norris, Ivana Bacik, Averil Power and Trevor O Clochartaigh for raising our concerns and proposals. This means that these issues can now form the basis of formal amendments to be proposed at the next stage of the Bill.

There were no amendments voted on today, because Minister Katherine Lynch said that the Government wanted to first consider a report on Section 37 that the Irish Human Rights and Equality Commission is preparing, and which is almost ready. Atheist Ireland also made a written submission to that report.

You can read Atheist Ireland’s briefing document to Senators here.

You can read the full Seanad debate on the Oireachtas website here.

We’ll do a more comprehensive analysis later of those of our points that were raised in the debate. Meanwhile here are some selected relevant extracts from today’s debate.

Senator Katherine Zappone, Independent:

Since both the preamble to the directive and the EU charter express respect for principles of the European Convention on Human Rights, the term “religion or belief” should be read consistently with Article 9 of the European Convention on Human Rights. As it stands, the term used under the religion ground in the Employment Equality Act is “religious belief”, which is too narrow and does not comply with the directive as it may not cover philosophical beliefs such as humanism or atheism. Atheist Ireland raised similar points in its briefing document which notes there are general principles of European law which give equal recognition to religious and non-confessional philosophical beliefs.

Amendment No. 3 is necessary to redefine the “religion” ground to mean “religion or belief”. Acceptance by the Minister of amendment No. 1 would require a change in the language used in section 2(1)(a) and (b) to make the ground more inclusive, as defined by European law. It is noteworthy that the drafters of the Bill included the term “religion or belief” in section 2(1)(b) and, as such, extended the religion ground to include “belief”. On the basis that the word “belief” is used in the paragraph to which I referred, it should also be used elsewhere in the Bill. The amendment provides an opportunity to change the definition of this ground in the Employment Equality Act.

Senator David Norris, Independent:

Religious instruction is the responsibility of parents – if they want to continue a religious tradition – and is much more valuable when it comes from parents. It is from my mother, aunt and grandmother – my father was dead – that I got my love of the church.
While there are reasonable circumstances in which a person with a religious belief can be favoured, this Bill goes much too far. It would be bad for all concerned, for example, if a committed atheist were required to teach religion. Children are not fools and would know immediately that their teacher did not believe what he or she was teaching. To require an atheist to teach religion would, therefore, do violence to the children and the conscience of the person who was required to teach something that went against his or her beliefs. Such an approach is wrong. I am sure any flexible school will be able to find a proper, practical and pragmatic solution to this problem. It is not one that requires discrimination to be enshrined in law. While the Bill introduced by Senator Bacik moves a considerable way in the right direction, it continues to allow for discrimination….

While I am not an atheist, I believe that the rights of all citizens should be protected. Under this Bill, if one is gay and an atheist, one may be protected to some extent as a gay person but one would not be protected as an atheist. Atheists have a right of conscience and their position should be regarded as a form of belief because atheism is a belief in that involves, for example, the belief that there is no God and the universal is a nonsensical mistake, an accident that took place at the time of the big bang and so forth. While I do not agree with those views, people are perfectly entitled to hold such a principled position, which, while not particularly scientific, is a form of belief. I will table a Report Stage amendment to provide that atheism be treated as a belief.

The Bill, as it stands, negates the whole point of equality law by making some types of equality more equal than others. As I stated, a gay, atheist teacher could be fired on the basis of his or her belief but not on the basis of his or her sexuality.
The position in respect of European Union directive 2000/78/EC is inaccurate because Article 4 does not require but merely allows member states to permit discrimination in certain circumstances. Article 8 explicitly allows member states to introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in the directive. In other words, we have considerable room for manoeuvre and are not required by the European Union to do what is done in the Bill. On the contrary, we are almost encouraged to be more open and liberal.

Some years ago, the Supreme Court examined this section of the Act and found that the legislation provided for a reasonable balance of the different rights involved, including, chiefly, the rights to earn a living and to freedom of religion and association. It found that the 1996 Bill was not repugnant to the Constitution, which is a very interesting phrase. Nowhere in the Supreme Court judgment is it suggested that such a provision is required by the Constitution. The Seanad, as a calm and reflective House, should consider these subtle distinctions. Institutions that are State funded should not be allowed to discriminate on the grounds of religion or belief. The State should not fund religious discrimination against its citizens. Further, institutions that are not State funded should be subject to restrictions of the type the Bill places on State funded bodies.

As I stated, it is a violation of conscience to require an atheist to teach religion. It is both absurd and an example of very bad teaching practice… Obviously, it would be absurd to try to force the Church of Ireland and the Roman Catholic Church to employ atheists or Mormons as clerics. That would be daft and the job specification would militate against it. I am sure there is employment legislation under which this matter could be dealt with and in the context of which it might be made clear that someone is not suitable or qualified for the job and that he or she should go elsewhere to teach atheism or Mormonism.

As stated, I hope to table amendments for Report Stage. I also hope the matter will not be put to a vote at this point. I will be tabling an amendment in respect of the word “religious”. In Ireland, that word has a particularly narrow connotation. I would like to change the legislation to read “religious or belief-based”. This would allow us to include all different belief systems. I would also like to amend the legislation in order that it would read “where it is reasonable to conclude that performing the job concerned objectively requires an employee to hold a particular religion or belief”. The latter would cover Bible classes, religious instruction and so on. It would also leave intact the rights of people who are atheistic, gay or whatever. I would also include the following text at the end of the subsection, “but publicly and lawfully manifesting a religion or a belief shall not be grounds for undermining the ethos of an institution”.

Senator Ivana Bacik, Labour:

I read the submission made by Atheist Ireland and, as an atheist, I support it. However, Atheist Ireland is overly dismissive of the Bill and it underplays the great significance it will have, even if passed in its current format. Atheist Ireland also misunderstands Article 4 of the directive. We will return to that point when we examine the Bill in greater detail.

I welcome the fact that Senators Zappone and Power have put forward constructive amendments by means of which they are seeking to strengthen the Bill. However, we must also be cognisant of the need to have the Bill passed in order that employees who suffer the chilling effect of the continued existence of section 37(1) might be protected. In her amendments, Senator Zappone is seeking to amend the original Employment Equality Act. They are not really directly related to amending section 37(1) but rather involve trying to broaden the religion ground to include atheism. I thoroughly agree with the Senator in this regard but I do not agree with the wording used in amendment No. 1, namely, “that one has a religion or belief and the other has not”. As an atheist, I have a belief. It is not that I do not have a belief. It is just a matter of considering how we might improve on the wording to which I refer.

Senator Averil Power, Fianna Fail:

On the broader religion point, I accept that if someone is to work as a religion teacher, cleric or in another religious role, it is essential that he or she believes in the relevant faith. Senator Norris’s point is well made. It is difficult to pass on one’s faith or engage in religious instruction in a genuine and forceful way if one does not share that faith. That should not be used to discriminate against staff whose role is primarily secular. We must find a better balance on this issue. I do not know if Senator Zappone intends to push her amendments today. I hope not as I would like us to have more engagement on what is possible and desirable. Some of these issues may need to be taken up in the broader context of patronage of schools. Issues in relation to staff entitlements and protecting people’s rights should be taken up here.

We have had debates in this House and elsewhere on the desirability of having fewer schools under religious management and having our education system more directly reflect our society. However, it would be fair enough to insist that anyone working in a school that is under religious management upholds the ethos of the school while there and refrains from saying anything inappropriate in the classroom. He or she should not criticise the Pope, for example. Nobody would have an issue with that. I cannot imagine that any teacher would put himself or herself in that situation. Short of that, if a person shows respect for the school and the school’s ethos, I cannot see why he or she should be denied a job because of his or her private faith. I do not understand it and consider it to be utterly unnecessary. It is a form of inequality we should not stand for in this day and age.

In the last debate, Senator Bacik referred to EU Directive 78/2000 and said it required that kind of discrimination. In fact, it does not. Similar to the others provisions that have been cited here regarding the Constitution, it provides that member states “may” provide that a difference of treatment shall not constitute discrimination in certain circumstances. It says that member states “may” maintain national legislation in force on the date of the adoption of the directive or provide future legislation incorporating national practices existing at that date. The difference in treatment shall then be implemented taking account of member states’ constitutional provisions and principles.

It goes on to say that where an ethos is based on religion or belief, the directive shall not prejudice the right of churches and other public organisations – acting in conformity with national constitutions and laws – to require individuals working for them to act in good faith and with loyalty to such organisation’s ethos. The language throughout the directive refers to “may” rather than insisting. That last paragraph reflects what I have just said which is that people would act in good faith and with loyalty to the organisation. If someone of the Protestant or other faith or who has no faith is looking for a job in a Catholic school, he or she should be required to uphold the ethos of the school and not actively seek to undermine it. He or she should show loyalty to his or her employer and act in good faith.

Clearly, a person should not stand up in classroom and challenge or criticise the tenets of the faith or church and actively work against the ethos of the school. However, I do not see how quietly carrying out one’s private faith in one’s own time in any way represents failing to act in good faith and with loyalty to the organisation’s ethos. There is scope for us and the directive does not represent a blanket reason for us not addressing the religion ground. We must find a wording on the religion ground which is consistent with the directive, but according to the advice I have taken since the last debate, it is not as strong as was argued last time out. There is scope for improvement.

Senator Trevor O Clochartaigh, Sinn Fein:

I broadly welcome the Bill and I thank Senator Bacik for bringing it forward. It is important for all those who are being discriminated against and it is essential that it be enacted quickly. We are all concerned that it has taken a year to take Committee Stage but we should move forward. Senator Conway’s reference to a stage like manner is apt because Sinn Féin shares the concerns that have been validly raised by Senators Power and Zappone and we agree with the general thrust of their contributions. These issues need to be taken on board in the legislation and, therefore, we generally support the amendments. Perhaps the wording needs to be tweaked but we echo the concerns of groups such as Atheist Ireland, which has raised these issues with us. We reserve the right to table amendments on Report Stage if these amendments are not taken on board. However, we generally support the thrust of the words of Senators Power, Zappone and others in this area.

Senator David Norris, Independent:

I have a point to make on something I believe is a little disgusting. I know we are not supposed to use the word “disgusting” anymore but I am politically incorrect. It is disgusting that we should ask people their religious beliefs. What does it matter? Why should one have to list one’s religious belief when one applies for a job? On the census form, there was a question asking for one’s religious belief. I am a religious person and put down “11.52 and 35 seconds” and that my current religious belief was such and such. It changes with my digestion, whether I have slept well, whether I have been to communion, etc. To take the Mickey out of the census form, I wrote all over it my current theological position, making reference to the patristic sources, etc., and my views on the existence of God.

Minister Kathleen Lynch:

Before turning to the work before us today, I want to update Senators on the work we have done since the Bill was first introduced in this House in March 2013. The Government, given the complexity of the issues involved arising from the competing constitutional rights and the need to balance those rights to protect the interests of all citizens, was of the view that a formal public consultation process should be undertaken. For this reason, immediately on naming the members-designate of the Irish Human Rights and Equality Commission last April, the Minister for Justice and Equality asked them to undertake such consultation and examine all the issues involved.

I understand the public phase of the process has been completed and that the commission is preparing a report on the outcome in addition to its own views on the issue for submission to the Minister for Justice and Equality, the Minister for Education and Skills and me, being the Ministers centrally involved. I understand the public consultation phase attracted great interest and a large volume of submissions. More than 60 submissions were received, and they are being examined. One will appreciate that considering this volume of submissions and framing its response was a significant task for the commission.

Nevertheless, I am delighted to able to inform the House that, just yesterday, the commission informed the Department of Justice and Equality that it has completed its analysis of the submissions received. It has agreed on a report taking account of the legal framework and the views received, and the report will be forwarded to the Department within a day or two. Senators will understand, therefore, why we believe it was necessary to await the commission’s report before we moved any further with this Bill. As soon as the report is received, the Government will have an opportunity to consider it and to come back to the House with any detailed amendments to the Bill that might be needed. The issues involved are complex and we need to get it right. This addresses Senator Zappone’s concerns on what we know and the type of information and background data we need to have.

The institutional and individual stakeholders who have contributed to the consultation exercise have a legitimate expectation that their views will be listened to in the evolution of this legislation. I am conscious that this is the first issue on which the new commission has been consulted and of the need to cement a good working relationship with that body from the start.

As I said in the course of Second Stage in this House, it is the Government’s intention to table a number of amendments to the Bill and strengthen it against any possibility of constitutional attack. Since the report to be received shortly from the Irish Human Rights and Equality Commission will be important in considering the best way forward and as we will need to consult further the Office of the Parliamentary Counsel and other Departments, such as the Department of Education and Skills, I am not in a position to present any such amendments today. It is my intention that, having received the commission’s report, the relevant Ministers and I will examine it in detail and, in the light of the Attorney General’s advice, bring forward such amendments as are necessary.

This will be done as quickly as possible. For today, I have to say that there is a possibility of amendments arising to each and every section of the Bill. I need to say this for the record and for procedural reasons. I also have to say that I am not in a position to accept any of the amendments proposed to the Bill. I hope Senators appreciate the position we are in and will not press any of the amendments we have before us. Of course, Opposition amendments can also be held back for the next debate when I will be in a position to respond on points of substance. In the meantime, I regret that I am not in a position to give a detailed response today but I assure Senators that the Government will be back with such a response as soon as possible. I believe there is no point in rushing the legislation as the issues are complex and we all want to get it right. We need to tease out all the implications and ensure our proposals strike the right balance between the different rights involved.

Senator Katherine Zappone, Independent:

I have a question. I feel a little frustrated, as I am sure Senator Power does, having tabled amendments. If we adjourn now, do we come back to Committee Stage and go through our amendments and not get any response from the Government because it has not had time to consider the Bill? I do not consider that is the most appropriate way to get this sorted because I can stand up and make my arguments and the Minister of State will say to us that she still needs to consider the response of the Irish Human Rights and Equality Commission. Is that really a proper Committee Stage? I do not know that it is. I do not know whether we should adjourn Committee Stage. Senator Power also tabled some amendments for Committee Stage. That is my suggestion. I do not want to stand up and give my arguments for my amendments without having a response back from the Government. I do not think that is a proper way to make law.

Senator Averil Power, Fianna Fail:

I want to get this Bill finished in proper form as soon as possible. Instead of having another utterly uninformed and speculative debate next week, however, I would rather wait for two weeks, have the report, and the Minister could then come here to respond…. after the Easter recess?

Minister Kathleen Lynch:

Could I make a helpful suggestion? Rather than setting a time now as to when this debate will resume in whatever format, we might tick-tack with one another so that the report will be available and the Government’s response will also be available. It is not up to me but I am making that suggestion.

Full debate:

These are relevant extracts from the debate.

You can read the full Seanad debate on the Oireachtas website here.