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

I move: "That the Bill be now read a Second Time."

I am delighted to present this Bill to the House, the purpose of which is to amend a range of legislation so that Ireland is in a position to ratify the United Nations Convention on the Rights of Persons with Disabilities. The enactment of the Bill will strengthen the position of people in this section of society even further. I have long been a supporter of rights for persons with disabilities and ratification of this convention is one my own key priorities. I appreciate there are many Members of the House who are also committed to this issue and have sought the ratification of the convention for some time. It has taken longer than expected to get to this stage and I am disappointed we were not in a position to ratify by the end of 2016, as we had committed to do in A Programme for a Partnership Government. However, the Bill before us will, when enacted, bring about changes to a range of legislation that will have a real effect on the lives of persons with disabilities.

The ratification of the convention is the first action listed in the soon to be published National Disability Inclusion Strategy 2011-2020. The process to get to this point has been complex and drawn out. I accept the criticisms of colleagues in this regard. It has been difficult to deal with the many complex issues. However, when we ratify, we will be doing so in the knowledge there is no legislation on the Statute Book that contradicts the convention, as is the case in some other countries. It is essential that the State is in a position to meet the obligations it assumes under the terms of any international agreement from the moment of its entry into force for Ireland. For us, ratification is the end of the preparation and implementation process, not the beginning. That was a crucial aspect of our preparations in bringing forward this Bill.

Ratification of a convention before we have amended domestic legislation that contradicts it makes no sense and does nothing to ensure compliance or to actually protect the people for whose benefit the convention exists.

The Bill covers a range of legislation covering very different areas of Irish life. I thank the Attorney General's office and the many other Departments that have been involved in the development of the Bill because it is not limited just to the Departments that I have responsibility for, but has a much wider reach. Despite the hard work of all involved, it was not possible to include all the heads as set out in the general scheme, which was approved by the previous Government in March of last year. I will outline shortly what remains to be completed. While the primary aim of the Bill is to remove the statutory barriers to ratification of the convention, the opportunity is also being taken to progress a number of other miscellaneous amendments to equality and disability legislation. I will now put on the record of the House the main provisions of the Bill.

Section 1 provides for amendment of the Juries Act 1976 to provide that a person who is deaf shall not be ineligible for jury service by reason only of his or her requiring the services of a sign language interpreter and that the existing prohibition on a person with a mental illness or disability and is receiving medical treatment or is resident in a hospital or similar institution from serving is replaced with a functional capacity test. Section 2 provides for amendment of the Electoral Act 1992 to repeal the prohibition on a person of unsound mind from standing for election to the Dáil and thereby also removing the disqualifications for membership of the Seanad and for election to the European Parliament.

Section 3 makes two amendments relevant to the National Disability Authority, NDA, legislation. It makes provision for the role of the authority as part of the monitoring mechanism for the convention and provides that staff of the authority become civil servants of the State. The NDA is the only body within the justice Vote whose staff are not civil servants. I thank the staff on the team at the NDA for the magnificent work they have done since I took over as Minister of State. Aside from the impact this anomaly has on the management of human resources within the justice Vote, by limiting the Department's flexibility to move staff to fill priority needs, that the NDA's staff are public servants means the board must meet pension liabilities as they arise from its annual allocation. This is a serious burden for a small body with a relatively small financial allocation. Civil servant of the State status would mean that pension liabilities are met from the Vote for superannuation, and that was the approach adopted regarding the Irish Human Rights and Equality Commission when it was established in November 2014.

With regard to section 4, the United Nations Convention on the Rights of Persons with Disabilities, UNCRPD, provides for reasonable accommodation, that is, practical help to ensure that the person with a disability can, for example, access a service provided for people with disabilities in the areas of employment and provision of services, provided the cost does not exceed a disproportionate cost. 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. Clearly, these do not arise in regard to the provision of public services.

The Attorney General has advised that the "not exceeding a disproportionate burden" standard is also appropriate in the case of commercial bodies whose activities are regulated for quality of service vis-à-visbanks, insurance companies, telecommunications and transport providers and credit unions. We are then left with a range of smaller businesses, such as shops and restaurants. The provision of the higher standard in the case of the remaining private sector providers can be considered in the light of developments with regard to EU anti-discrimination legislation and will need to be subject in the interim to a reservation.

Section 5 brings civilian staff of the Garda Síochána back within the terms of Part 5 of the Disability Act, providing for a 3% public sector employment quota for people with disabilities. This group of Civil Service staff were inadvertently removed from the scope of Part 5 by the enactment of the Garda Síochána Act 2005. I have also set myself a target to try to get that figure of 3% employment for people with disabilities up to 6% over the coming years. We should be ambitious and have a vision, and we also have a strategy.

Section 6 makes two amendments relevant to the Irish Human Rights and Equality Commission legislation. It provides for the Irish Human Rights and Equality Commission to act as arnicas curiaebefore the Court of Appeal, as well as before the High Court and the Supreme Courts as already provided for, but for technical and timing reasons it was not possible to include a reference to the Court of Appeal in the Irish Human Rights and Equality Commission Act 2014, or to insert a cross-reference in the Court of Appeal Act 2014. The opportunity is being taken now to resolve that anomaly. It also creates a statutory basis for the IHREC's role in the monitoring framework in regard to the UNCRPD.

Section 7 provides for citation and commencement. I would also like to highlight the heads that are to be included in the Bill as Committee Stage amendments but which were not ready in time for inclusion in the published Bill. The main head that is outstanding deals with deprivation of liberty. That is a very important issue and a number of my colleagues have raised it. A draft text for the deprivation of liberty part of this Bill has been prepared by the Department of Health, but it requires further work before it can be submitted to the Government. The Department of Health will sponsor a separate memorandum for the Government on this aspect as soon as the text is at a sufficiently advanced stage and it is intended that these provisions will be brought forward as Committee Stage amendments. I suspect that this aspect of the outstanding work will take the longest to bring to finality. Clearly, depriving a person of his or her liberty can only be accepted as a last resort. An appropriate balance needs to be struck between protecting individuals who may be a danger to themselves or others by ensuring that we can provide social care in suitable settings for vulnerable individuals, and recognising that citizens should be free to make decisions for themselves except where the person’s decision-making capacity is lacking.

With regard to the other heads on which work is ongoing, head 6 proposes to amend section 4 of the Criminal Law (Insanity) Act 2006 to provide that in the circumstances that existed in G. v.District Judge Murphy, the District Court will have jurisdiction to determine whether the accused person is in fact fit to be tried. What is at issue here is to ensure that if a person is deemed to be not fit to be tried by the District Court and is sent on to the Circuit Court, and if the second court forms the view that the person is in fact fit to be tried, the lower limit on penalties available in the District Court should still apply to that person. That explanation is in layman’s language, and I have a more detailed legal explanatory text if Deputies have any questions later.

Head 7 provides for the replacement of a number of references in statute to "lunatics" or "persons of unsound mind" where the reference makes the person ineligible for membership or ceases to be a member of certain bodies or offices in so far as those amendments may be required for ratification. This head has an impact on a number of items of legislation.

Head 10 provides for amendments to the Equal Status Acts 2000 to 2015. Following the enactment of the Gender Recognition Act 2015, it is desirable to make explicit the prohibition of discrimination against transgender persons under equality legislation to reflect the significance of the establishment of a system of legal recognition of the acquired gender or transgender persons and of intersex persons.

Head 11 provides for amendments to the Employment Equality Acts 1998 to 2015. It follows head 10 in making a corresponding amendment to the Employment Equality Acts.

Head 12 amends the Employment Equality Acts to encompass prospective employees, employers, vocational training bodies, professional bodies and trade unions in the definition of victimisation. At present, the text of the definition of victimisation refers only to an employer-employee relationship.

This is out of line with EU legislation and the jurisprudence of the European Court of Justice.

Head 13 deals with amendment of the Taxes Consolidation Act 1997. This amendment was intended for inclusion in the Assisted Decision-Making (Capacity) Act but for timing reasons it was not possible to include it. The opportunity is being taken to make the amendment now. The amendment to the Taxes Consolidation Act will include the categories of decision-making representatives and attorneys as persons authorised to handle tax matters on behalf of incapacitated people.

Head 15 is an amendment of the Social Welfare Consolidation Act 2005. This is a new head which was not included in the general scheme as approved by the Government in March 2016. The existing legislative provisions in the Social Welfare Consolidation Act 2005 empower the Minister for Social Protection to make regulations to appoint a person to act on behalf of a recipient or beneficiary of social welfare payments in circumstances where the recipient or beneficiary is certified by a registered medical practitioner to be a person who is, or is likely soon to become, unable for the time being to manage his or her own financial affairs. The Assisted Decision-Making (Capacity) Act 2015 sets out guiding principles that are intended to safeguard the autonomy and dignity of the person with impaired capacity and it is vital the social protection arena takes full account of these principles.

The Bill will be progressed to enactment at an early date to facilitate ratification of the UN convention as soon as possible. The precise timing of ratification now depends on how long it takes for the Bill to progress through the enactment process and on issues relating to commencement of the deprivation of liberty provisions, which will be included in the Committee Stage amendments, and of the Assisted Decision-Making (Capacity) Act 2015. Considerable progress has already been made to overcome the other legislative barriers to ratification that are not being addressed in the Disability (Miscellaneous Provisions) Bill.

The Assisted Decision-Making (Capacity) Act 2015 was signed into law on 30 December 2015 and is a comprehensive reform of the law on decision-making capacity. The Criminal Law (Sexual Offences) Bill 2015 completed Committee Stage in December 2016 and is scheduled to return to the Dáil for Report Stage on 1 February 2017. When enacted, the Bill will reform section 5 of the Criminal Law (Sexual Offences) Act 1993 to facilitate the full participation in family life of persons with intellectual disabilities and the full expression of their human rights. Achieving the necessary balance between these rights and ensuring appropriate protection is crucial.

The legislation is good news not just for those who are directly affected by disability, but for all members of society, as it seeks to make society more equal and inclusive. Equality and inclusivity are issues I want to push. I look forward to engaging further with Deputies from all sides of the House to ensure an effective Bill is passed and enacted as soon as the outstanding work has been completed.

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