Margaret Murphy O'Mahony (Cork South West, Fianna Fail) | Oireachtas source

I am delighted to have the opportunity to speak on this important and very long awaited Bill. It is a crucial milestone towards creating a more inclusive society. For my part and that of my party, we are committed to creating a more inclusive society and to dismantling barriers in a range of sectors that prevent people with disabilities from fully participating in society. We need to ensure that people with disabilities are given equality of opportunity so they can participate in society to the best of their abilities. For people with a disability, their challenge is often compounded not because of their disability, but because of how society treats people with disabilities. During Fianna Fáil's time in Government, we contributed to moving disability policy from a model that was based on management, charity, pity and, in some cases, neglect towards a social care model, recognising that people with disabilities are full and equal citizens entitled not only to dignity and respect, but also to independence, choice and control over their own lives.

We are committed to the removal of barriers that prevent people with disabilities from fully participating in society and exercising their rights and entitlements as citizens, but there cannot be any complacency as the latest HIQA reports show very clearly. Fianna Fáil welcomes and broadly supports the provisions of the Bill, the primary aim of which is to address the remaining legislative barriers to Ireland's ratification of the UN Convention on the Rights of Persons with Disabilities. However, we are disappointed that the Bill as published is incomplete, with many significant sections to be provided through Committee Stage amendments. The Bill as published contains six substantive sections, and judging by what is proposed for Committee Stage, at least another six sections are in the offing. It would appear that in order to meet the programme for Government commitment on ratification, it was imperative to publish a Bill come what may. However, to publish what is essentially half a Bill is hardly the best way to honour the ratification of this very important United Nations convention.

While the Bill has received a broad welcome, its content, and the absence of other content, has generated some concern among those who campaign for disability rights and inclusion. I will take this opportunity to raise some of these concerns with the Minister of State, and I hope he will reply to them when he is responding to this Second Stage debate. As I stated, while publication of the Bill is welcome, its incomplete nature has generated much concern. The Irish Human Rights and Equality Commission is worried that a significant number of provisions in the Bill are due to be introduced through Committee Stage amendments, which significantly limits the scope for detailed analysis on which the commission can provide meaningful commentary. The commission states this problem is especially acute with regard to the deprivation of liberty aspect of the Bill. It states the human rights and equality implications of how deprivation of liberty is regulated are highly dependent on the processes and safeguards which will accompany the provision. To carry out meaningful analysis of the adequacy of safeguards from a human rights and equality perspective it is necessary to consider the particulars of the proposal including, for example, the scope of the reform, how detention will be reviewed and the particulars of an appeal mechanism together with the remedies proposed to allow a person obtain appropriate redress and reparation. The commission also states that in the absence of published draft legislation it is difficult for it to discharge its function to examine legislative proposals and make concrete recommendations which can be of use to the Legislature, particularly on this aspect of reform.

It should be noted this concern is also shared by Inclusion Ireland, which states that legislative clarity is required on the issue of deprivation of liberty. Inclusion Ireland points out how in the UK deprivation of liberty is defined as when a person is under continuous supervision and control and is not free to leave, the person lacks capacity to consent to these arrangements, and, conversely, that any care that restricts a person's liberty is appropriate and in the person's best interests. If a UK facility wants to detain someone, it must get permission first and the care facility processes the safeguards.

The Centre for Disability Law and Policy has also expressed concern about key amendments, including those on the deprivation of liberty of persons with disabilities being introduced on Committee Stage. It states these are key human rights issues for people with disabilities, mental health service users and older people, but to date there has been no public consultation with these communities about the proposed legal changes. It also states that because amendments are only being introduced on Committee Stage, there will be less opportunity to debate the provisions. The centre is calling on the Department of Health and the Department of Justice and Equality to immediately publish their proposals for legal reform in this area and to engage in meaningful consultation with those who will be directly affected by this part of the law. In light of these concerns, it may be worthwhile for the Oireachtas Joint Committee on Justice and Equality to hear in public from interested parties when the amendments are published and prior to Committee Stage.

I will now turn to what is in the Bill. Section 1 deals with jury service. While the Irish Human Rights and Equality Commission welcomes the proposed reform to amend the ineligibility condition for participation on a jury, it states the best approach involves an explicit presumption of capacity and that a person should not be ineligible by reason of his or her requiring reasonable accommodation.

The commission states that persons should be presumed to have capacity to serve on a jury and that reasonable accommodation should be provided to secure maximum participation in jury service. Inclusion Ireland is concerned that the section on jury service is not consistent with the functional approach of the Assisted Decision-Making (Capacity) Act 2015. It states that a person’s capacity is assessed functionally and on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at that time. A person will also enjoy a presumption of capacity to make decisions. A person lacks capacity if he or she cannot understand information, retain information, use information and communicate a choice. The Centre for Disability Law and Policy echoes this by stating: "A more human rights-compliant approach would be to disqualify a person who does not, in the opinion of the court, have the ability to perform the functions required of a juror, following the provision of reasonable accommodation."

With regard to a monitoring framework for the implementation of the Act when passed, the Irish Human Rights and Equality Commission, IHREC, welcomes confirmation of its proposed role in the monitoring framework required to be established. The Bill proposes to give the commission the role to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of persons with disabilities. However, the commission points to the heads of the Bill which would have provided that it is a function of the commission to act as the independent mechanism to promote, protect and monitor implementation of the convention. The IHREC states that the function proposed under the Bill should be clearly linked to the commission’s designation as the independent mechanism under Article 33 of the CRPD. This would better align with the view of the UN Committee on the Rights of Persons with Disabilities that states must "adopt the necessary legal measures to clearly establish the independent mechanism". The Minister might clarify why the reference to an independent mechanism, which was contained in the heads, did not feature in the Bill as published. Furthermore the Centre for Disability Law and Policy has said it is concerned that the Bill does not provide any additional funding to the commission to carry out this work.

Inclusion Ireland highlights another issue which the Minister should address. It states that the proposals relating to an advisory committee are concerning. The Bill states that "at least half of the number of persons appointed... shall have, or have had, a disability". Inclusion Ireland believes that any advisory body should wholly comprise persons with personal, lived experience of disability and that this committee should be representative of all forms of disability. It should be adequately resourced and facilitated and its members accommodated and supported.

Turning now to the issue of reasonable accommodation, both Inclusion Ireland and the Centre for Disability Law and Policy signal some concerns here. The former states that it is deeply regrettable that Ireland will enter a reservation in regard to reasonable accommodation and that different levels for reasonable accommodation, such as nominal cost for private services and disproportionate burden for public services in employment law, will operate in tandem. The Centre for Disability Law and Policy states that it is gravely concerned that the Department of Justice and Equality proposes to enter reservations or declarations on Articles 12 and 14 relating to equal recognition before the law and liberty. These articles are core to the spirit and purpose of the convention and we urge the Government to commit to their full implementation in line with the guidance provided by the UN Committee on the Rights of Persons with Disabilities.

I have raised these concerns because I believe it is critical for the Government to address them. While Fianna Fáil welcomes and broadly supports the provisions of this Bill, we will be tabling some constructive amendments to the published Bill. We welcome the fact that the Bill has finally appeared but its abridged state means that we have to temper our response somewhat.

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