After today’s Seanad debate, the Bill to protect teachers from religious discrimination in schools will still not protect atheist or religious minority teachers at all, including Protestant or Muslim teachers, who cannot access the teaching profession in Ireland. Atheist Ireland will be conducting an intensive lobbying campaign about this between now and when the Bill reaches the Dail.
The Government is also arguing that the European Union sanctions this discrimination through an exemption in the EU’s Employment Equality Directive. Atheist Ireland will be highlighting this within the EU, as it is based on a disputed interpretation of this clause. It was never intended that the Equality Directive would bar atheists and minority faith members from access to the teaching profession.
Today in the Seanad, the Government accepted just one of ten proposed amendments that would have strengthened protection for employees. The amendments were proposed mostly by Averil Power, and also by Katherine Zappone and Jillian van Turnhout. Senator David Norris also supported the amendments, and Ronan Mullen opposed them. Fianna Fail was not represented at the debate.
Essentially the Bill still provides that a school can discriminate against an atheist or minority faith teacher on the basis of their atheism or faith, but not against an LGBT or unmarried teacher on the basis of their sexual orientation or marital status. This is creating an arbitrary hierarchy of protections for citizens on the basis of the protected grounds in our anti-discrimination laws.
The Government argues that this is a constitutional requirement based on a previous court case about the balance of religious and personal rights (when this law was last tested by the courts in 1997). But Atheist Ireland has argued that this case only provided that such discrimination was constitutionally permitted but not that it was constitutionally required, and that we are now in a more pluralist Ireland where we can safely go further in protecting our personal rights.
We will also be bringing the issue to the attention of the European Union, as the Government is arguing that the EU sanctions this discrimination. We believe this is based on an inaccurate interpretation by the Government of the EU Employment Equality Directive of 2000. This protects employees from discrimination, and it takes precedence over national laws.
The Irish Government negotiated an exemption in this Directive, which allowed States to maintain national laws that were in force at the time, but the interpretation of this exemption has been disputed from the day that it was agreed. In 2008 the EU took a case against Ireland about this, then dropped it in the political atmosphere in the run-up to the Lisbon Treaty referendum, where some people were hyping up fears about “Europe telling us what to do.”
Overview of amendments debated
The one amendment that the Government accepted today was proposed by Katherine Zappone. It provided that action being taken against employees (who engage in conduct that undermine the religious ethos of the school) would have to take into consideration the teacher’s right to privacy.
The amendments that the Government rejected would have extended protection to employees on the basis of the occupational requirements of the specific job, making the institutions publish their ethos, and protecting the freedom of expression of employees.
The Government also rejected a proposal by Katherine Zappone to delete one subsection of the Act. The Government said that the Supreme Court had determined that there must be a balance between the various rights involved, and that the option of simply deleting the Section was not an option.
But this did not address Senator Zappone’s actual proposal, which was not to delete the whole Section, but only to delete the second paragraph of the Section. That would still leave a balance between the competing rights, just a different balance than the existing one.
Here is a summary of the debate on the amendments. It is contemporaneous and unedited. I’ve highlighted the Minister’s comments in red.
Amendment 14 – Deletion of paragraph (b)
Katherine Zappone proposed deleting Section 37(1)(b) of the Act (the part that allows a religious school or hospital to take action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.) She said a religious institute’s right to protect their ethos is adequately protected already in Irish law. Section 16, 25, 37(1)A and 37(2) of this Act already protect them. Secondly, the Supreme Court found Section 37(1) to be compatible with the Constitution, but it did not require this extra protection for religious institutions.
Averil Power said she would personally prefer to delete Section 37, but her own legal advice is that we cannot delete it, but must amend it. So she is urging support for the amendments that she is proposing.
Ivana Bacik said she would also personally prefer to delete Section 37, but legal advice of AG and IHREC was that deletion is not possible. She said Government amendments were strong enough to make it almost impossible in practice for an employer to take such action.
David Norris said this is not only about just LGBT people, but also religious belief and atheists – he may be a retired fairy but he is definitely not an atheist – atheists have rights as well. State has a duty to be neutral between beliefs. Article 4 of the Equality Directive permits discrimination if countries want it, but it also allows wider grounds for religious freedom. It says members states ‘may’ not ‘must’ maintain national laws in force when the Directive was passed. Article 8 says we may introduce provisions more favourable to principle of equality than those in the Directive. The European Court has also found that secularism is a philosophical conviction worthy of respect in a democratic society. The law also discriminates against Catholics who do not follow Catholic Church’s teachings. And there should be no distinction between privately and publicly funded bodies. If religion is so cherished by parents, they should bloody well teach it to their children. It shouldn’t be the responsibility of the school. School is about facts, not beliefs.
Minister O’Riordan said that he too wishes we could remove the Section. He wishes we weren’t dealing with the eduction system and Constitution that we are dealing with, but that is the reality under which we have too operate. It will never be as equal as we would like it. Why have to baptise a child to get into school? Why separate children on the basis of religion? While we are waiting for that revolution – and I will be at the front of it – we have to operate within the Constitution that e have.
Ivana Bacik said that she is an atheist, and it is outrageous that any teacher should have to a member of any religion, and we have to break the hold of the Catholic Church on our education system. Many parents who are not believers want to uphold the status quo so as not to affect their children. Provisions like Section 37 are in place in other countries, but there they only effect a small number of faith schools, but in Ireland it has immense significance because the vast majority of schools faith schools.
Martin Conway (Fine Gael) said he agrees with the Minister. The Catholic church made significant contribution to Irish schools, but now they shouldn’t be doing it.
Ketherine Zappone said to the Minister that the debate has been useful. Also has own legal advice, and still not convinced that we are legally required to keep this subsection.
Amendment 1 & 3 – public or private funding
Averil Power proposed removing the distinction in Government amendments whereby the restrictions on discrimination only apply to publicly-funded religious institutions. She said this is not referenced in Article 4 of the European Directive, and it allows wealthier institutions to buy their way out of legal obligations applying to everyone else. Welcome improving protection for public employees, but serious gap on that protection is not extended to employees in private schools or nursing homes.
Averil Power asked Minister to respond to the individual amendment being discussed. Minister O Riordan said they have been advised that this is ensure constitutionality of the Bill. State has duty to ensure that persons whose salary is paid by the public purse are protected, but could risk losing the Bill if they extend it.
Averil power said that the Minister is referring to the Irish Constitution, but EU law including the European Directive supersedes our Constitution. The exemption from the Directive does not make the distinction that the Government amendment is making. IHREC also says this. It is reasonable to distinguish on the basis of particular posts, but not on the basis of where they get their funds.
Minister O Riordan quoted Article 4.2 of the EU Equality Directive and said that it was negotiated specifically by Irish government to ensure 37.1 would not be affected, and that the EU later investigated this but closed the case. We will just have to agree to disagree. That is the state where we are at. And individual church could legitimately take a case and potentially win that case.
Amendment 2 & 6 – occupational requirement
Averil Power proposed that, in addition to “ethos” add “the relevant position of employment primarily involves the propagation of religion, such that the religion or belief of the employee or prospective employee is integral to that position.” She said that teaching religion is part of the role of primary teachers, so making it dependent on people who are of that faith would mean atheist teachers would not have access to teaching posts in most primary schools. Programme for Government was not just limited to LGBT, but they have completely abandoned people who are deterred from being teachers because of their religion. This amendment would make explicit protections that the Government says is implicit it their amendments.
David Norris strongly supported this amendment.
Minister O Riordan said with regard to education in the Programme for Government, some people didn’t play ball and wanted to keep things as they are. Amendment does to my mind go too far. We have to accept under the constitution that religious groups are free to establish their own institutions, and can determine that religion or belief of employees is a genuine occupational requirement, even if teaching of religion is not a direct feature of the particular post. It doesn’t just cover religious institutions. If someone is working for a gay rights group or a women’s group or a political party, is it a reasonable expectation that they should have the same mindset? The Constitution is quite clear on this.
Averil power said the Constitution also has competing rights for employees. This has a particular impact in Ireland because there are so many faith schools and so few alternatives. The balance is not correct in the Government’s amendments. Doctor Fergus Ryan who has been drafting her amendments advises that it is possible to go further.
Amendment 4 & 11 – Defining religious ethos
Averil Power, Katherine Zappone and Jillian van Turnhout proposed that, in addition to ethos, add “which is defined in writing and the employee or the potential employee is made aware of it.”
Averil Power said that Catholic document Share the Good News requires Catholic schools to write down their ethos, and we should require that to be published. Katherine Zappone said that Catholic institutions should be proud to publish their ethos. David Norris supported the amendment, and said you cannot violate something unless you know what it is.
Minister O Riordan said that there is a line that we should not cross. The state should not involve itself in trying to define even indirectly what it is that individual denominations do, or do not, hold as central to their ethoses. If we want to achieve a genuine separation of church and state, we shouldn’t start up a mechanism for the state to regulate how religious groups define what they believe in, or to find itself having to police such a definition in any way. Even if the State took this step, he suspects that any such statements would be formulated at such a high level of abstraction so as to be of no particular use when dealing with the requirements of the amendments.
Averil Power said the she is disappointed with the Minister’s reply. The test for the legislation is whether it gives people comfort to know where the line is in the workplace. It is the easiest of the amendments to accept, given that Catholic schools already require schools to write down their ethos. Why should teachers not see those?
Amendment 5 to 10 – Privacy and Freedom of Expression
Averil Power and Katherine Zappone proposed that action taken on the basis of conduct should not infringe that person’s right to privacy, in particular, in respect of his or her family life or private consensual adult relationships.
Averil Power and Jillian van Turnhout also proposed that action taken on the basis of conduct should not infringe a lawful exercise of that person’s right to freedom of expression, freedom of assembly or freedom of association.
Ivana Bacik said that she supported Amendment 5 on the right to privacy.
Minister O Riordan said he will accept Amendment 5 and ask on that basis that the other amendments would not be pressed.
With regard to the other amendments, he said that no employee can campaign against the interests or values of beliefs of their employer.
Averil Power asked if that would have prevented teachers from campaigning for marriage equality? Or from wearing a wedding ring in school if they are gay?
Ivana Bacik said it could not be on the basis of civil status. Averil Power accepted that, but said her concern was about the conduct test.
Gerard Craughwell said that he didn’t experience such a chilling effect in staff room discussions.
Minister O Riordan said you cannot be undermining an ethos by answering a factual question truthfully.
Other points made
Other points were made that were not directly related to the amendments under discussion.
David Norris said it is not appropriate for atheists to teach religion, except in a historical and cultural context. It is also a violation of the conscience of atheists. If he was an atheist he would refuse to teach Christianity as true. He said if it is true that there are atheists teaching religion, he is not surprised that children are going to communion dressed as Cinderella with fake tan.
Martin Conway (Fine Gael) said that the State should be the leading and main provider of education, but religion should be taught in school.
Ronan Mullen said he supports the Bill and opposes the amendments. In every workplace there can be tensions between the right to express yourself and the right of the institution to protect what they think is good. This Bill requires objective standards. It insists that any action taken be objectively justified by legitimate aim and proportionate action. No reasonable person can object to a standard like that. But there is an easy recourse to a false dichotomy – either state decides all values, or diversity of visions providing education. Whenever I hear the name Eileen Flynn, I know the person has no interest in cogent analysis but only propagandising. The power of the state told determine what children must learn is not education. It is propaganda. Parents have to exercise their right to seek an education for children, and mustn’t be required to pick only from state’s chosen menu.