Duncan Smith (Dublin Fingal, Labour) | Oireachtas source

I move amendment No. 3:

In page 6, after line 34, to insert the following: “(2) A court shall construe this Act in a manner that gives effect to the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006, and for this purpose the court shall have regard to the provisions of the Convention, including its preamble.”.

Now that Ireland has ratified the UNCRPD, embedding an explicit requirement for courts to interpret the Act in a manner that gives effect to the convention strengthens the potential for the Act to be interpreted in manner compatible with the human rights obligations within that convention. The Act was continually referred to by successive Ministers during its development as being an essential part of Ireland’s preparation to ratify the UNCRPD. Adding this amendment recognises that best practice in this field is continually evolving and reaffirms Ireland’s commitment to refine and reinterpret our law in a manner consistent with our human rights obligations. Introducing this amendment signals Ireland’s commitment to a progressive and evolving interpretation of this law in light of emerging understandings of human rights law.

On Committee Stage, the Minister said it would not be possible to accept an amendment such as this due to Ireland’s dualist legal system and that full incorporation of the UN convention in separate legislation would be required, similar to the European Convention on Human Rights, ECHR. The Minister noted that courts are free to have regard to the UN convention already, following Ireland’s ratification. However, evidence from legal cases where the UN convention has been put forward by counsel in support of a claimants constitutional and ECHR rights shows that courts are not willing to consider it until it is incorporated, see C. O’C v. An Bord Pleanála, for example. However, incorporation of principles from other UN conventions has occurred in different Irish legislation without full incorporation of the convention of the whole. For example, legislation on children’s rights, including the Children and Family Relationships Act 2015 and the Domestic Violence Act 2018 have codified rights enshrined in the UN Convention on the Rights of the Child, such as non-discrimination and the rights of children to be heard.

Since the term "will and preferences" in the principal Act is taken directly from Article 12 of the UNCRPD, and has no precedence in any other domestic legislation, it is entirely appropriate that domestic courts interpreting this provision would have regard to the primary text from which this term derives, that is, the UNCRPD. Therefore, this amendment has been resubmitted. I would urge the Minister to reconsider accepting it. In addition, the Minister mentioned on Committee Stage that full incorporation of the UNCRPD into domestic law will be an option, similar to the manner in which the ECHR was incorporated. We would welcome the suggestion and will support the Minister if he comes forward with such a proposal for such incorporation.

Amendment No. 62 would create an obligation on IHREC to engage meaningfully and directly with disabled people in order to obtain information and advice on how the rights of disabled people are being impacted at grassroots level. IHREC has already taken steps to achieve this, including through the creation of the disability advisory committee. However, further direct engagement with disabled people would be more appropriate in this context. The Joint Committee on Children, Equality, Disability, Integration and Youth has called for such an amendment to ensure wide consultation with the disability community. The Minister acknowledged on Committee Stage that IHREC is an independent monitoring mechanism appointed by the State under Article 33 of the convention and, as such, already has a clear monitoring function and a strong track record of consulting with disabled people, as evidenced through its creation of the disability advisory committee.

However, some groups of disabled people are currently not represented on this advisory committee, including people with experience of mental health services. As numbers on this committee are limited, it will never be able to represent the full diversity of the disability community in Ireland. IHREC has never claimed that its obligation to engage with disabled people can be solely or even primarily achieved through its disability advisory committee, as other forms of engagement are necessary and ongoing.

Therefore, we have resubmitted this amendment, not to undermine the work in this area, but to strengthen it and give a stronger legislative basis to IHREC's designation by the State as an independent monitoring mechanism under Article 33 of the convention.

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