Finian McGrath (Dublin Bay North, Independent) | Oireachtas source

This amendment addresses important issues of capacity and participation that go to the heart of the convention, and I thank the Deputies for bringing it forward. The amendment to the Juries Act 1976 proposed by the Government in section 1 of the Bill as published replaces a provision that prohibits a category of persons from performing jury duty with a functional test of mental or intellectual capacity. The category of persons currently excluded are those who suffer from, or have suffered from, mental illness or mental disability which either causes them to be resident in a hospital or similar institution or to regularly attend for treatment by a medical practitioner. This represents a status approach to the determination of capacity, and is precisely what we are aiming to move away from in the implementation of the Convention and the development of the Assisted Decision-Making (Capacity) 2015 legislation.

In the Bill as drafted there is a Government amendment that changes the exclusion to read as follows: "A person who, does not, in the opinion of the court, have sufficient mental or intellectual capacity to serve as a juror." The amendments put forward by the Deputies focus on decision-making capacity rather than mental or intellectual capacity in one case. The other amendment focuses on the provision of reasonable accommodation for jurors.

As regards the reference to decision-making capacity, I welcome this clarification as the term is potentially more relevant in the context of the new approach to capacity and decision-making outlined in the Assisted Decision-Making (Capacity) Act 2015. However, we are balancing two equally fundamental rights here – the rights of persons with disabilities to fully participate in all aspects of society, and the right to a fair trial. For this reason, absolute precision is required.

Furthermore, I am advised by the Office of the Attorney General that a number of legal issues arise from the draft amendment, the most significant of which is that jury duty does not fall within the remit of the Assisted Decision-Making (Capacity) Act 2015. Section 138(i) of the Assisted Decision-Making (Capacity) Act 2015 specifically states that the Act does not purport to change the law in relation to capacity or consent for serving as a member of a jury. The justice sector working group on jury service is currently examining the issues raised in the report of the Law Reform Commission on jury service published in 2013.

Deputies Wallace, Ó Laoghaire and Chambers have hit the nail on the head about the rights to services, and the debate in the past two weeks about the Irish Deaf Society. I am aware of the financial difficulties the society is experiencing and the concerns about its future sustainability. There are several funding options. I am actively involved in this and I hope to resolve it during the week. The Deputies' early point is fundamental. When we talk about people with disabilities and their rights we also have to ensure they have services. It is also important to note that the largest provider of such services is the National Association for the Deaf which receives significant funding, for example, we gave it €6.7 million in 2018. There are issues such as that which must be dealt with and I will deal with them. I take the Deputies' points on the rights of people with disabilities.

I will consider the legal implications of amendment No. 1 for Report Stage because the Assisted Decision-Making (Capacity) Act 2015 will require amendments. I am likely to support it on Report Stage.

Amendment No. 2 raises a complex legal issue and I would like Deputy Ó Laoghaire to let the juries working group consider it because it gives rise to many complicated legal issues.