Michael D Higgins (Galway West, Labour)

I welcome the opportunity to speak on this important legislation. It is proper that Deputies on both sides of the House should welcome the commitment to expenditure on a multi-annual basis as announced by the Minister for Finance on budget day. The speeches made by Members of the Government parties have been thoughtful and committed, showing a great deal of care for the issues and cases that have arisen in different constituencies. I congratulate Deputy Cassidy on his wonderful achievement ag freastal ar an dhá thrá. It is one matter to be able to hear the concerns of the DFI in his constituency but another for him to change his sense of direction in regard to voting.

The case Deputy Cassidy outlined is interesting. However, I wish to make several points which are fundamental and representative of real difference between us. What is missing from the legislation is the word "rights" itself, or the acceptance of rights from a theory of citizenship. This is not an academic argument but one that draws attention to the question of how one views the entire issue of disability. Should we, on the one hand, look at the person who has a serious impairment, whether of a physical or psychological nature, which stops him or her from participating in a particular activity, or should we look rather at the society which contains within itself a set of barriers that stop all citizens from participating equally?

The first view suggests the necessity of a set of measures which propose a narrow definition for addressing what one feels to be particular difficulties in a manner in which one can afford to address them. The second perspective, which relates to the fundamental reform of society so as to take fully into account the rights of those with disabilities, requires that one must adopt a rights-based perspective. This does not require the immediate provision for everything that would be so recognised but it would require the Government to take upon itself the responsibility for a basic standard of provision and a set of principles which must be achieved progressively in order to meet the needs of every citizen.

This is fundamental. We have been invited to reflect on the current situation whereby parents must justify their children's needs before a court. If one takes a rights-based perspective, no court would require the State to do what it cannot do but it would require the State to show that it was meeting the basic rights identified in the citizen's case. This is what the Department of Finance has set its face strongly against at every attempt to introduce disability legislation.

It is interesting that while moves have been made at the level of the UN to introduce a convention that addresses the issue of disability, it will be opposed tooth and nail by the Minister for Justice, Equality and Law Reform, Deputy McDowell, who uses the Constitution not as a means by which internationally asserted rights can be introduced into the lives of Irish citizens but rather as a conservative shield to block such rights as may arise through EU or UN conventions. He will argue that it is his business to say both citizens and any external assertion of rights will attune themselves to his conservative version of the Constitution's fundamental right. The Bill's fundamental flaw, therefore, is its deliberate eschewing of the responsibility of citizenship as would be carried in rights-based legislation. The Bill's drafters took upon themselves the issue of definition. A practical example of this is contained in section 2. It states:

. . . "disability", in relation to a person, means a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment;

Representatives of the Irish Epilepsy Association have pointed out that an epileptic is one who is at risk from episodic impairment. Are they to be excluded from the legislation? This can be clarified on Committee Stage.

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