The Equality Authority has expressed grave concern at the unexpected announcement by Minister John O’ Donoghue of a proposed amendment to the Equal Status Act, 2000 and the extension to the Terms of Reference of the Liquor Licensing Commission. The proposals appear to be premature, to have a capacity to undermine the general principals of equality legislation and to establish a bad precedent in managing the impact of new equality legislation. The Equality Authority has sought an urgent meeting with the Minister to seek clarification of the Government decision.
The amendment, as described in the announcement, comes on foot of the decision of the ODEI Equality Officer in the case of Mr. John Maughan – V – The Glimmer Man Ltd. on 18 December 2001. An amendment is proposed to “make clear that decisions taken in good faith by licencees not to allow children under 15 years old into their bars, or to set conditions on allowing children in, shall not constitute discrimination”.
The concern of the Equality Authority centres on the premature nature of this decision, on the possible precedent it sets, and on the introduction of the concept “in good faith” into anit-discrimination legislation.
- The premature nature of the decision rests on the fact that it is being made on the basis of one case on the family status ground. There are no superior court judgments yet in this area as no appeals have been heard. There are a number of cases on the family status ground pending, the hearing of which should clarify issues such as health and safety and which might show there is no need for amendment to the legislation to achieve the Ministers goals. It could be more appropriate to amend the intoxicating Liquor Act.
- The possible precedent established in amending legislation on foot of pressure and controversy could undermine the credibility of the Act and even the Office of the Director of Equality Investigations. Amendments need to be the product of a body of caselaw and analytical review of this experience. Such a review is already planned for next year to incorporate EU Directives.
- The introduction of an exemption for decisions “taken in good faith” would appear to hand total discretion back to the publican. It would reflect a significant and negative change in anti-discrimination law which has always focused on effect rather than the more intangible intent. This could be a very negative precedent for the other grounds covered by the legislation.
The proposal in relation to the Liquor Licensing Commission is to extend its Terms of Reference to examine the rights of licence holders to refuse admission.
The concern of the Equality Authority centres on the composition of the Commission and on the limited focus to be given to the issue by the Commission.
- The Commission is predominantly made up of vintner, hotelier and restaurant organisations. No N.G.O. equality or human rights interests are represented. The Equality Authority is not represented. This is not the forum for an informed and disinterested examination of the issues.
- The emphasis on the right to refuse ignores the need for a focus on the responsibilities of people who are in effect running establishments that provide a public service and on the rights of those who access such services. The Equal Status Act, with its short time limits and exemptions, is already heavily weighted in favour of the licence holders.
The Equal Status Act is new. Casework to date has uncovered widespread discrimination across all nine grounds. Change is necessary and is inevitably controversial. It is crucial that the Act is seen to be robust enough to stand up to controversy and pressure. Otherwise a dangerous precedent is set and the ambition of, and progress achieved under, the Equal Status Act will be undermined.
ENDS