Mick Wallace (Wexford, Independent) | Oireachtas source

My points will be pretty similar to those aired. The assisted decision-making legislation lists jury duty as one of the exemptions to the provisions of the Act, which is a problem as it contravenes the spirit of the United Nations Convention on the Rights of Persons with Disabilities, especially Article 12.2. It affects the ability of persons with disabilities to participate in all aspects of life. Section 1 of the Bill before us attempts to address this with respect to jury service but it falls short. It proposes to amend existing legislation on who is defined as being incapable of serving on a jury and it seeks to ensure compliance with Article 29 of the United Nations Convention on the Rights of Persons with Disabilities, which guarantees the right to equal participation in political and public life.

The idea of participation is key and we are supposed to be facilitating participation of people with disabilities.

People with disabilities should be presumed to have the capacity to serve on a jury, to carry out jury duty. People with disabilities are rights holders first and foremost and the Convention on the Rights of Persons with Disabilities, CRPD, is clear that they are entitled to be integrated socially and politically. While the Bill attempts in section 1 to rectify the problem in the Assisted Decision-Making (Capacity) Act 2015 on jury duty, and that is to be welcomed, it is in fact, as I understand it, creating a new problem. It is undermining some of the very positive aspects of the 2015 Act. The wording of section 1 on jury duty seems to be contrary to the provisions of the Assisted Decision-Making Act (Capacity) 2015 where capacity is defined as "decision-making capacity" and refers to a person's ability to understand at the time that a decision is to be made the nature and consequences of that decision in the context of the available choices at that time. The Department of Justice and Equality's website describes the Act as follows:

The Act proposes to change the law from the current all or nothing status approach to a flexible functional definition, whereby capacity is assessed only in relation to the matter in question and only at the time in question. If a person is found to lack decision-making capacity in one matter, this will not necessarily mean that s/he also lacks capacity in another matter. The Act recognises that capacity can fluctuate in certain cases.

As the Department defines it, a person does not lack capacity to make a decision, rather he or she is presumed to have such capacity. This is the spirit of section 8 of the Assisted Decision-Making (Capacity) Act 2015. A person may lack capacity to make a particular decision at a particular time or his or her capacity may be in doubt but this capacity may be regained at a different time and for a different decision. However, the wording we are addressing here, that the person must "have sufficient mental or intellectual capacity to serve as a juror", brings us back to an outdated understanding of disability rights very much at odds with the positive functional approach of the Assisted Decision-Making (Capacity) Act 2015. It assesses a person's decision-making capacity simply based on the fact that he or she has a disability, which is exactly the kind of all or nothing approach from which we are supposed to have moved on.

The Assisted Decision-Making (Capacity) Act 2015 already provides a statutory framework to support decision-making by adults who have difficulty making decisions without help and to enable them to fully participate in all aspects of public life. The provision of reasonable accommodation, in Deputy Ó Laoghaire's amendment No. 2, is already provided for in the existing Act, from our understanding.