Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

Ireland ratified the UNCRPD in 2018. As such, the country is bound by that Government decision to the obligations contained within the convention. However, to do what Deputy Sherlock is proposing would be unusual, and possibly even inappropriate, in that it would require the courts under an individual Act to have regard to all the provisions of the convention when the State has already ratified that convention. When we interact with international law, if we want to bring the text of a convention into domestic law, we do so by an Act of the Oireachtas. For example, we signed up to the European Convention on Human Rights, ECHR, and subsequently incorporated it into domestic law. We put the entire text of the convention into a Bill, which became the European Convention on Human Rights Act 2003. We can debate whether we want to make every piece of the UNCRPD directly applicable, which is what the Deputy is attempting to do through a one-provision line. To be constitutionally appropriate, though, we would need the full substantive text of the convention to be incorporated into a Bill if we were looking to make the courts directly bound by every provision of that convention. As such, I am not comfortable with what the Deputy is proposing. Perhaps there is room to discuss whether something like it could be done in future, but it would have to follow the model we adopted with the ECHR, where every provision of that convention was put into a Bill and the Oireachtas had the ability to understand the implications of deciding the question.

I referenced another matter on Second Stage, namely, that section 8 of the 2015 Act set out strong guiding principles that showed what we were about. I will probably speak to them in the context of some of the later amendments. We are not just dealing with the Bill that is before us, which is an amending Bill and is quite dry in its sections. A comprehensive Act was passed in 2015. Unfortunately, it has not been implemented yet, but it has a clear, principles-centred approach to the change that it represents in moving away from the status approach to wardship towards considering people’s individual capacities in the context of their particular situations.

Amendments Nos. 5, 8 and 16 call for a regulation-making power for the Minister in terms of consultation. We are concerned about placing this consultation obligation in legislation. We signed up to the convention in 2018 and one of the obligations flowing from it is that we engage in consultation with DPOs.

If we start to feel that we have to put that in legislation every time, does it suggest that, where we do not have a consultation obligation, the Government, the Minister, the Department or the agency does not have to consult? One of the ideas behind signing up to the UNCRPD was that there would be a general obligation to consult with DPOs. If we start specifying this here, then it will look like we have to specify it in primary legislation every time. Otherwise, the argument can grow that, because we have not specified that the Minister must consult a DPO, the obligation does not apply. There is a risk in enumerating in legislation every time we have to do something if there is a wider obligation that already sets out that we are to engage in that type of consultation.

Amendment No. 7 would introduce two new subsections on guiding principles and the UNCRPD into section 8 of the 2015 Act. I have a similar concern to the one I had about Deputy Sherlock's proposal in amendment No. 3. Deputy Ward is looking to use the general comment of the UNCRPD as a reference source, but the general comment is not drafted as a legislative document or a treaty. It is a discursive interpretative piece and probably does not have the degree of specificity necessary to be used as the source of strict legislative approaches.

On changing the criminal law element, the Deputy is moving to a subjective basis for how the court would determine whether a criminal offence had been committed. There is a concern over this. On the one hand, we want to encourage people to take on the role of intervenor but, on the other, there are certain standards that intervenors have to meet in the care that they show in exercising that role. I would be concerned if this were decided on a purely subjective basis - the person thought that what he or she was doing was okay and, therefore, he or she was not guilty of an offence - and the court was directed to rule on that element. It creates a threshold that is arguably too low.

Amendment No. 44 seeks to assign an alternative meaning to "disability" that is different from the one set out in statute under the Disability Act 2005. I understand that the intention is to insert a social model definition in the 2015 Act, but the definition in the convention is not tight enough to function as a legal definition for the Statute Book. It is important that the definition we use be consistent and well aligned across this Bill, the 2015 Act, the Irish Human Rights and Equality Commission Act 2014 and the Disability Act. The 2005 Act is well known and well used, so I would be worried if we started creating inconsistencies in our definition of "disability" across a range of Acts that were meant to work together.