Finian McGrath (Dublin Bay North, Independent)
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Section 4, as drafted, deals with reasonable accommodation for persons with disabilities. Reasonable accommodation are practical changes that service providers have to make so that people with disabilities can obtain and use all kinds of services on an equal basis with others. The convention provides that reasonable accommodation be provided for people with disabilities in the areas of employment and provision of services provided the cost does not exceed a disproportionate cost. The amendment proposed by the Deputy seeks to eliminate the standard of disproportionate cost altogether. This is problematic for a number of reasons, the most fundamental of which is that it is liable to incur constitutional challenge. The Supreme Court decided in an Article 26 referral of the Employment Equality Bill 1996 that it would be unconstitutional to impose such a requirement where the cost exceeds a nominal cost. The Supreme Court decision hinges on the private property protection provisions of the Constitution. The Attorney General has advised that it would not be appropriate to apply the disproportionate burden obligation in the case of commercial bodies whose activities are regulated for quality of service, viz. banks, insurance companies, telecommunications and transport providers and credit unions. To eliminate the maximum standard altogether would create a substantial risk of challenge and for this reason, I propose that the amendment be withdrawn.