Bríd Smith (Dublin South Central, People Before Profit Alliance)
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95. To ask the Minister for Children, Equality, Disability, Integration and Youth the reason that the Government has not ratified the optional protocol to the United Nations Convention on the Rights of Persons with Disabilities which would provide a mechanism for people to challenge when their rights are not being upheld; and if he will make a statement on the matter. [51023/22]

Verona Murphy (Wexford, Independent)
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97. To ask the Minister for Children, Equality, Disability, Integration and Youth if he will provide an update on the position of the Government to ratify the optional protocol of the United Nations Convention on the Rights of Persons with Disabilities which would allow people with disabilities to take a case to the United Nations over violation of their rights; and if he will make a statement on the matter. [50741/22]

Denise Mitchell (Dublin Bay North, Sinn Fein)
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Deputy Seán Canney is substituting for Deputy Verona Murphy.

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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The other evening in the debate around disability services, the Minister said on the optional protocol under the UN Convention on the Rights of Persons with Disabilities that ratification of the protocol is being scoped out and considered. Some seven years after we signed this protocol we are scoping out and considering. I find that to be an incredible answer to that question and I ask him please to explain what exactly he is going to do about this.

Anne Rabbitte (Galway East, Fianna Fail)
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I propose to take Questions Nos. 95 and 97 together.

Ireland ratified the United Nations Convention on the Rights of Persons with Disabilities, UNCRPD, on 20 March 2018. This marked an important milestone in the process to strengthen the rights of people with disabilities in Ireland and has gathered momentum since Ireland became a signatory to the convention in 2007. Ireland’s approach to meeting the obligations of the UNCRPD is one of continuous advancements each year moving forward on key reforms to strengthen consistently and uphold obligations and the rights arising from the convention. I recognise the importance of the optional protocol to the UNCRPD. As the Deputies will be aware, the optional protocol is an international treaty which establishes procedures on the strengthening of the implementation and monitoring of the convention. Ratification of the optional protocol is a commitment in the programme for Government and the timeline for ratification was intended to follow the conclusion of the State’s first review period before the UN committee. Due to the delays at UN level, I understand that Ireland’s appearance before the UN committee will now be delayed possibly for some time. In light of this, both the senior Minister, Deputy O’Gorman, and myself have indicated that we are open to earlier ratification, contingent on the State being in a position to meet its obligations thereunder. This reflects the State’s longstanding approach to entering into binding international obligations in good faith and at a point where the State is in a position to meet its obligations.

As Minister of State with responsibility for disability, I want to ensure that we are in a position to uphold all of our commitments under the UNCRPD once the optional protocol is ratified. In that regard, the commencement of the Assisted Decision-Making (Capacity) Act 2015 is required before ratification can occur and for closer alignment with the convention. It is intended that the important legal reform will be in place once the Assisted Decision-Making (Capacity) (Amendment) Bill is passed into law. This Bill has completed Committee Stage and we look forward to working with all Members to pass this legislation as expeditiously as possible.

In addition to the passage of the Bill, my Department is in the process of scoping what other requirements there might be before ratification can occur. If any further requirements for ratification are identified, these will be addressed as a matter of priority.

Addressing Deputy Smith directly, the basis of her question is on the scoping that is going on, which is to ensure that all Departments are in a position to ensure that the optional protocol can be enacted as quickly as possible. This is why the scoping is going on at the moment.

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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Can I ask the Acting Chairman the arrangements for these questions as we are sharing time?

Denise Mitchell (Dublin Bay North, Sinn Fein)
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Deputy Smith will speak for one minute, with a response from the Minister of State, followed by Deputy Canney for a further minute, and a response from the Minister of State, returning then to Deputy Smith. Each Deputy then will be given two minutes each in total.

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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I thank the Acting Chairman. I do not know what the Minister of State’s view is on this and I am aware that she was not the Minister of State back in 2015 when the UN treaty was ratified, but I find it extraordinary that after seven years, we are still at the point of scoping and of looking at what else needs to be done. If the Minister of State finds it extraordinary or unacceptable, please say so. She is the Minister of State for the Department and if she does not say so, we are going to assume that she thinks that this is okay.

Somebody, for example, who was perhaps seven years of age in 2015, is now 14 and suffers from severe disabilities and is not getting the attention that he or she needs from the State and does not have the right to go outside of the State to make a complaint. That is what a member of the UN committee on the Convention on the Rights of Persons with Disabilities said. I mentioned this the other night in my contribution on the rights of people with disabilities. Mr. Markus Schefer said at the Joint Committee on Disability Matters here that not ratifying the optional protocol has the optics that the Government does not really have confidence in its own system. The Minister of State has more or less said that now in a different way. Mr. Schefer maintained and told the Oireachtas Committee on Disability Matters in 2021 that the Government needs to move on and ratify the protocol. He did not say that the delay was with the UN. I do not understand why the Government is putting this delay back on the UN committee.

Roderic O'Gorman (Dublin West, Green Party)
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I will respond to the Deputy. The Assisted Decision-Making (Capacity) Act and the Assisted Decision-Making (Capacity) (Amendment) Bill are very good examples of why we are doing this. This Act was passed in 2015. I was not here at that time but I still do not understand why that Act was not implemented and in the seven years since, wardship, which is entirely in breach of the principles of the UNCRPD, has continued to exist and people have continued to be wards of court. We know that if we signed up to the UN optional protocol, we would be immediately found in breach of the convention because wardship is so against the UNCRPD, so we are working to resolve the breaches in those key pieces of legislation, where we are in breach.

That is why we have been working very hard to get the Assisted Decision-Making (Capacity) (Amendment) Bill through. It is going on Report Stage in the Seanad now. Remember, by doing that, we are actually making lives better for people with disabilities. Because we are looking to get ourselves into compliance, something like wardship is finally going to be abolished.

Seán Canney (Galway East, Independent)
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For clarification, I have just come from the meeting of the Committee on Disability Matters, where we discussed mental health reform and advocacy on behalf of people with disabilities and mental health. One of the issues which came from that meeting and continues to come from many of the meetings we have in this committee is that people talk about doing something into the future, or that there is a pipeline of things to be done. As somebody said this morning, that pipeline seems to get diverted and it seems to go into the ether. The feeling is that we are not implementing the optional protocol on the basis that the services that we are delivering are not fit for purpose for the particular protocol and that we have to get our ducks in line first before we do that. From what I heard this morning, I also understand there is a pull between mental health and disabilities in respect of funding and as to who is responsible for what. At the end of the day we have 1,300 people plus living in long-term residential care under 65 years of age who should not be there.

We have other issues such as wardship, as the Minister mentioned. I understand that legislation and things have to be teed up but it is taking a hell of a long time. People are getting frustrated and believe that perhaps the Government is hiding behind this legislation that is not in place. Could we get reassurance on that point, please?

Roderic O'Gorman (Dublin West, Green Party)
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I fully understand why there is frustration out there on the delivery of services but also frustration on the legislative process. That is why myself and the Minister of State, Deputy Rabbitte, have put a great deal of focus on the assisted decision-making capacity legislation in respect of such legislation which falls directly within the remit of our Department. We were accused then of rushing this legislation on one side when we brought it to the Dáil. We slowed things down because people raised issues and we have addressed some of those in respect of amendments here and in the Seanad also. We have also found that some of the issues in that legislation are linked to mental health, which the Deputy raised, and the legislative solutions fall in different Departments.

That is why we are referring back to the scoping exercise that the Minister of State, Deputy Rabbitte, was talking about. Not all of the solutions to this lie in our Department. We have to work with colleagues in other Departments to make sure they are putting the same priority into amending legislation that will allow us to be fully UNCRPD-compliant and advance our signing up to the optional protocol.

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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I am looking back on the record of the debate around this and see it has been going on since 2015. When former Deputy Finian McGrath was Minister of State, he made the same commitment in 2018 that the Minister is making here today. That is four years ago. Four years might not seem a long time to a Deputy or a Minister, but it is a long time in the life of somebody who has to live with a crippling and often crucifyingly painful disability, and who is not getting the services that the State should be obliged to give them. They have no redress and no recourse to come back on the State or the Department if they suffer, but the Minister and previous Ministers have told us that they are working hard on it and have promised they are going to deliver on it. Seven years on from 2015, it still has not moved forward. I find that unacceptable. The people who need access to this optional protocol, who need the mechanism to be able to call the State to account, must find it excruciating. Both the Minister and the Minister of State sit there patiently and say they are overburdened with Civil Service work and that they have to get the Bill passed. There needs to be a feeling of urgency around this issue, once and for all.

Roderic O'Gorman (Dublin West, Green Party)
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There is urgency. We have prioritised the advancement of one really important piece of legislation that will allow us to move towards full compliance with the UNCRPD, namely, the assisted decision-making legislation. I absolutely share the Deputy’s frustration. As I said, I still do not fully understand how a law that was passed in 2015 has never been fully enacted. The Minister of State, Deputy Rabbitte, and I are looking to bring forward the solution, which is this amending legislation which will make the relevant changes, simplify the processes, allow the decision support service to be established and allow us to have a situation where people who have some limitations with their capacity are supported to make decisions, rather than that incredibly Victorian notion of wardship, where basically all decisions, big or small, about such a person's life are put in the hands of a High Court judge. By making that change, not only are we legally compliant but we are making lives better for the thousands of people who are in wardship and will want those supports.

Seán Canney (Galway East, Independent)
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A good example is the need to ensure transport supports are there for people with disabilities and to deal with the mayhem around the primary medical certificate. Effectively, the appeals board dealing with the primary medical certificate resigned. The criteria by which the board members would judge somebody to be entitled to a primary medical certificate were deemed to be unfit for purpose and they resigned as they could not work with them. That happened a year ago but we still do not have an appeals mechanism and we still have the same criteria. People have come into my office who have been refused medical certificates and who I know need them, but they have no recourse. They do not want to know about legislation; they want that put in place. Putting the optional protocol in place will be the stick that will make the Government implement rights for people with disabilities, rather than waiting to have it right first. It will not be got right without a stick, and that stick is the optional protocol.

Anne Rabbitte (Galway East, Fianna Fail)
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This is an issue that Deputy Canney raises continually, as do I. It is why I am chairing the transport committee, which operates right across all of the various Departments, to find those solutions. The Deputy is right that it is unacceptable that the board has not been put in place. It is unacceptable that the legislation takes such a narrow view that it cannot be worked within. We are hoping to have a board put in place as quickly as possible but also that the legislation will be amended to take into account that it is no longer just about a limb or half a limb, or a leg or half a leg. That is no longer acceptable as the view of a person with a disability. We have to look at all of the other factors concerning people with a disability and be far more inclusive when we are setting the criteria. That is what I expect to come out of the consultation that is taking place at this time within all the Departments. It is not just for the Department of Children, Equality, Disability, Integration and Youth and is also for the Departments of Health, Finance, Public Expenditure and Reform and Transport; it is cross-Government and cross-Department. This is exactly the scoping piece that we talked about. It needs to be sorted out as soon as possible because these are the barriers that are in front of people. I do not find that acceptable and I am trying to find a solution.