John Dardis (Progressive Democrats)

I welcome the Minister of State, Deputy Fahey, to the House for this important debate. I welcome also the opportunity to speak on an important Bill, which I support, though not unreservedly.

I have fewer reservations than I originally had on the basis of the amendments introduced in the Dáil. Those reservations were further diminished when I heard the Minister of State inform us of the meeting which took place on 25 May between the Taoiseach and the DLCG. He also stated that he hoped to be in a position to bring forward a number of Government amendments to address as many of the group's proposals as possible following a detailed examination of them. As the Bill progresses I am more reassured than I was at the outset and far more reassured than I was with the original Bill, especially section 47, to which the Minister referred.

Few pieces of legislation have generated as much interest, emotion or active participation by the public and groups representing people with physical, sensory and intellectual disability. It is important to pay tribute to the work done by those people and also to acknowledge the debt society owes to them, especially those in the voluntary sector who have done such Trojan work in highlighting the needs of people with disability and in looking after and meeting those needs.

The Bill has had a long and tortuous journey to this point where we can debate it. Since I entered the Seanad in 1989 I have always tried to promote the cause of people with disabilities and I hope I can claim some success in securing extra recognition and resources for them. I accept I am not alone in that. Many other Members have tried to do the same. I concede that matters are far from perfect but the rights of people of people with disabilities have gone from being little debated or recognised to a point where they are now central within society. The Bill represents a major step forward on that path.

Every Member of the Seanad without exception wishes to vindicate, support and improve the situation of disabled people. It is entirely disingenuous to suggest that people would want to do other than their best, be they members of political parties or not, to improve the lot of disabled people. We may differ deeply on occasion on how that should be achieved but it is wrong to reduce the debate to a political point scoring and crude slanging match as has sometimes happened during recent months. No one person or group has a monopoly on knowledge, experience or agonising on how best to legislate in this area. Cynical exploitation of vulnerable people for political purposes must be denounced.

We are dealing with the complex and broad issue of disability on the one hand and the intricacies of legislation on the other. That has made legislative progress a fraught exercise. I was closely involved in the first attempt to produce suitable legislation, which was subsequently withdrawn. On that basis I welcome the fact that we have reached this stage in the legislative process and that the Disability Bill 2004 has finally reached the Seanad.

I would have had serious difficulties in supporting section 47 of the original Bill, which protected the State against legal challenge. I welcome the fact that amendments have been made. I would have had difficulty with the Bill if certain aspects had not been amended. The Bill as currently presented represents a significant step forward. It may be less than ideal but it will lead to a major improvement in the lives of disabled people and in the relationship between them and the State. Those who are entitled to look to the State to provide them with support and services can do so with confidence.

The issue of rights has dominated the debate on the Bill in this House, in the Dáil, in the media, in consultation documents, submissions and the public meetings which many of us attended. We must try to uncover the facts. The Bill is rights based but it will not be litigation driven. That is a key point. The Bill provides new rights for people with disabilities and statements to the contrary from many quarters, both in the House and the media, are unfair and unhelpful.

The point has been made about disabled people having the same human rights as anyone else. Everybody would agree that this should be the case. That has been enshrined in law. A body of law going back ten years provides equal status and prevents discrimination against people on the grounds of disability, sexual orientation, religion or any other reason. That is as it should be. However, one cannot provide superior rights to one group of people. Irrespective of how worthy we might be, we all stand equal before the law.

To bring Ireland to the highest international standards with a legal basis for services should be and has been the objective of the Government in drafting the legislation. The rights provided for people with disabilities are extensive and welcome. The Government has committed itself to introducing rights of assessment, appeal, provision and enforcement for the disabled. I commend this progress which will put Ireland in the first rank in terms of international practice. Several references have been made to the constitutional protection afforded to disabled people in South Africa and I will return to this point later.

The issue of rights has been at the heart of the debate, especially the right to the provision of services, so much so, that the other rights provided in the Bill are somewhat ignored, which is to be regretted. The right of provision must be and will be limited by the availability of resources. That is standard practice in legislation. I have found no case internationally that is otherwise. No matter how much we would like it to be otherwise we should be honest and say that is how it must be. Anyone who intends to challenge this view in the debate in this House in the coming days should reconsider the basis for his or her claims.

No State can provide for unfettered absolute rights for any group, able bodied or otherwise. The State must act in the interest of all its citizens. These rights cannot be justiciable. The State should provide equal rights to all its citizens but cannot and should not provide for superior rights for particular individuals, however worthy they may be.

No country has provided a right to court enforced services, irrespective of resources. To do so would be unrealistic, unwise, disingenuous and irresponsible. There will be those who will persist and argue this point. Most likely they will say that what people with disabilities want is the right to court enforced services, irrespective of resources. The Minister of State has told us about the cost of court enforced services. He made the point that for every €1 which the litigant received, the legal services received €4. We do not want another charter that is a gravy train for the people in the Law Society. The absolutist view must be challenged. What people with disabilities want are predictable, deliverable and quality services, proper recognition and a good quality of life. They do not want court cases which would not be helpful for them.

Individuals and groups that referred to the South African constitutional provision of rights to services have gleaned much political capital. I wish to put the record straight on this issue. The provision is an empty one. It is meaningless, unimplemented and unimplementable. Prominent Irish activists in intellectual disability have assured me from their recent visits to South Africa that the level of services provided on the ground is very poor and is much worse than that in Ireland at present. While it is part of the constitution, there is no evidence that the constitutional protection has been implemented on the ground.

Before citing examples of what Ireland should aspire to in terms of services for the disabled, people should look at the reality on the ground. Providing for something unrealistic in a constitution or anywhere else is not the same as making it a reality. I am satisfied that rather than including empty provisions, the Bill is realistic in what it states it can do for people, which is what they deserve. We must move away from allowing the argument to dominate discussion on the Bill. It will serve no purpose other than to deflect from the other sections of the legislation which should be examined by the House. One such issue, which is an integral one, is definition. I had concerns about the definition of "disability" in the original draft of the legislation. My concern centred on the definition in section 2(1) of the Bill which referred to "a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life ... ". This definition is less than ideal, it is vague and raises questions. For example, how does it sit with the experience of the many blind or deaf people who are pursuing great careers and have very fulfilling lives? Is their blindness or deafness considered a disability under the legislation? Should it be?

I also have reservations about the word "enduring" as used in the phrase "an enduring physical, sensory, mental health or intellectual impairment". This raises questions about those less-enduring or episodic illnesses which the majority of people would still consider to be disabling, particularly in terms of mental illness.

I am very much reassured by the amendments to section 6, now section 7(2). This ensures clarity on the inclusion of those with mental health impairments and children requiring early intervention. The raft of equality and non-discrimination measures introduced by successive Governments over the past 15 years supplements the amendments and provides the necessary legal protection to vindicate rights where necessary.