Finian McGrath (Dublin North Central, Independent)

Amendment No. 2 states:

In page 5, lines 5 to 12, to delete all words from and including "THE" in line 5 down to and including "NEEDS," in line 12 and substitute the following:

"CERTAIN RIGHTS FOR PEOPLE WITH DISABILITIES, INCLUDING THE RIGHT TO THE ASSESSMENT OF NEEDS OCCASIONED TO THEM BY THEIR DISABILITIES, AND TO A STATEMENT OF SERVICES COMMENSURATE WITH THOSE NEEDS, TO ENABLE MINISTERS OF THE GOVERNMENT TO MAKE PROVISION FOR THOSE SERVICES,".

I urge the House to support the amendment, which deals in strong language with the broad issue of rights for people with disabilities.

The Bill is flawed. The Government does not intend to deliver rights-based legislation for people with disabilities. That is the core issue underpinning the three amendments, as well as touching on the broader debate. My amendment would give teeth to the Bill because it is strong. It is essential that we remember the time of the Special Olympics in 2003, when the Taoiseach gave a commitment that we would have legislation better than anywhere else in the world. Now is the opportunity for the Government and the State to introduce that legislation. The Government needs to take on board a progressive realisation of rights. It must also take on board the issue of rights for people with disabilities, with the focus on services.

Many people are concerned that the Bill may be unconstitutional and in breach of the European Convention on Human Rights. For example, the right of access to the courts is covered by Article 34.1 of the Constitution and the right of access to the courts within a reasonable timeframe is covered by Article 6 of the European Convention on Human Rights. A further issue, the right to an appropriate education, is covered by Article 42.4 of the Constitution, as interpreted in the O'Donoghue judgment of 27 May 1993. The courts have been the only arm of the State to vindicate the rights of people with disabilities, who have been shamefully and deliberately neglected by a State which has manifestly failed them.

A Department of Education and Science memorandum in 1998 stated that the inadequacies of special education services were being exposed in the High Court on an almost daily basis. It is now well established that the courts are no longer prepared to tolerate the present situation. Rather, they are increasingly directing the State to put the necessary support services in place. In virtually every case, the State has been found to have failed in its obligation under Article 42 of the Constitution to provide for free primary education for all children. It is also well established that the courts will intervene to vindicate the constitutional rights of the citizens. This debate is linked to amendment No. 2.

When discussing the Bill in the context of the certain rights referred to in the amendment, it can be clearly seen that the State is opposed to rights-based legislation. This blatant opposition by the State was made abundantly clear on 13 January 1999 in the progress report on the implementation of the recommendations of the Commission on the Status of People with Disabilities, entitled Towards Equal Citizenship. The report stated, in a manner relevant to the amendment, that the Department of Finance:

cannot accept these recommendations which imply the underpinning by law of access to and provision of services for people with disabilities as a right. This right, if given a statutory basis, would be prohibitively expensive for the Exchequer and could lead to requests from other persons seeking access to health and other services without regard to the eventual cost of providing these services.

Is it any wonder that the State proposes the Bill? After all, the State will be the only beneficiary should the Bill be enacted. That is the core issue with regard to amendment No. 2.

In the High Court in October 2000 Mr. Justice Robert Barr, when referring to the State's pleading of scarce resources as an excuse to deny disabled person's their rights, stated:

It seems that the reason for that unhappy state of affairs is a lack of understanding by finance providers of the status and implications of the constitutional obligations of the State and in consequence an inability on their part to prioritise in constitutional justice claims made on the resources of the State by those having such rights which the State has an obligation to vindicate in full and as a matter of urgency.

I understand where the Minister is coming from. Anybody who believes in rights for people with disabilities can see the fingerprints of the Department of Finance all over the Bill. Many other Departments are unhappy with this situation.

I strongly support the groups which have expressed their clear opposition, some of which have walked out of the consultative group. I remind the Minister of State that delegates from NAMHI, an organisation which represents 28,000 intellectually disabled people, recently voted at one of their conferences on a motion which stated that this Bill is so fundamentally flawed that merely asking for it to be amended is futile and that it should be replaced with rights-based legislation. The motion was proposed by Pat O'Hanlon, mother of Ryan O'Hanlon, and Marie O'Donoghue, mother of Paul O'Donoghue, and unanimously passed at the NAMHI conference in Sligo. This organisation promotes the rights of people with disabilities. My second daughter has a disability and the people who work in NAMHI are parents and service providers and know what they are talking about.

I urge the Minister to carefully consider my amendment.

See this speech in context