The Government is on the verge of undermining one of the few bulwarks against discrimination concerning the most vulnerable group in Irish society, Travellers.
Willie O'Dea, the junior Minister responsible for equality matters, has indicated he supports a proposal to remove allegations against publicans of discrimination involving Travellers from the remit of the Equality Tribunal to the District Court, an institution which Travellers have reason to distrust.
And he is doing this at the behest of one of the most powerful and wealthy groups in society, publicans.
Right from the outset members of the licensed vintner trade have been opposed to equality legislation and equality institutions. They have resented the new "assertiveness" of Travellers of their rights to service in public houses, following the passing of the Equal Status Act, 2000 (this is acknowledged in the recent report of the Commission on Liquor Licensing).
Not only that, but publicans "in the vast majority of cases" have failed to reply to a notification of a discrimination complaint against them to the Equality Authority, according to the commission.
In November 2000 the minister for justice, equality and law reform, John O'Donoghue, established the Commission on Liquor Licensing "to review the system of licensing public houses and off-licences" - clearly a prelude to deregulating the pub trade. The membership of the commission contained a few solicitors, a few civil servants, representatives from the licensed vintners, RGDATA, the National Off-Licence Association, IBEC, the Irish Hotels Federation, the Garda, the Irish Nightclub Association and a few others.
But then, as a concession to the publicans, in March 2002 he tagged on to the commission's terms of reference a requirement to examine the entitlement of publicans to refuse admission and service in their public houses.
How representatives of the National Off-Licence Association, the Irish Nightclub Association, RGDATA and the others were deemed suitable to inquire into and make recommendations on issues touching on equality and on an issue that has most demeaned Travellers, who knows? No-one from any of the equality agencies on the commission, no representative of Travellers, nobody from any of the other groups that might be affected.
At first, the Equality Authority and the Traveller groups said it would have nothing to do with the Commission on Liquor Licensing, but they relented after a while and made submissions. I bet they regret that now.
And then, to make matters even worse, in the immediate face of the defiance of Mayo publicans to the whole equality regime, Willie O'Dea asked the commission last August to give priority to the new term of reference, a clear signal that recommendations which would assuage publican opposition to the demands of equality would be appreciated. Hey presto, the commission came up with its report on this issue in December and proposes that the Equality Tribunal be barred from adjudicating on complaints of discrimination against publicans.
Remember what is at stake here. The Equal Status Act, 2000, simply provides that a person shall not discriminate in the provision of goods or services on various grounds, including membership of the Travelling community. But Section 15 of the Act specifically provides that where there is a substantial risk of criminal or disorderly conduct or behaviour or damage to property, service may be refused. Also, action taken in good faith by a publican to ensure compliance with the licensing Acts will not constitute discrimination.
Where an allegation of discrimination arises, the complainant must first contact the publican concerned, then may make a complaint either to the Equality Authority or to the Director of Equality Investigations. The latter may then conduct an inquiry into the allegation and, where appropriate, make an order for compensation or order a specific course of action by the person against whom the complaint has been made.
IN deciding that this procedure is inappropriate the Commission on Liquor Licensing makes no attempt to analyse the cases concerning Travellers, and makes no complaint about the outcome of such cases. Its reason for recommending that such cases be heard by the District Court is based solely on the grounds that the investigating officers of the Equality Tribunal have no formal legal training; that there have been some inconsistencies in the procedures concerning these; and that the publicans have to fund their legal representations at such hearings.
The commission offers the flimsiest of grounds for changing the recent arrangements; the procedural problems, for instance, can be addressed under the present law by a ministerial directive. The commission offers no criticism otherwise of the legal merits of the tribunal's adjudications and publicans would have to fund their costs at the District Court anyway, unless they won their cases.
There is no good reason for the Government or the Oireachtas to follow the advice of a commission which, in its composition, had no special competence to deal with this issue. All the more so when what is involved is to subvert one of the few institutional safeguards of the right of Travellers to equal respect.