Brendan Ryan (Labour)

Those who have the good fortune not to suffer from a disability, in many cases, do not notice the phenomenon. For many able bodied people the first shock they receive as regards disability is when they try to wheel a buggy around a supermarket for the first time. That brings the realisation of how difficult it must be for somebody in a wheelchair when so many supermarkets and multiple stores decide that all children's clothes must be on the second or even the fifth floor. The lifts are normally so small that one cannot fit a buggy into them, not to mention a modern powered wheelchair. A point made to me vigorously by many people is that the regulations for access are based on the presumption that people use wheelchairs without their own power. The larger wheelchairs cannot get into, never mind turn around, in most so-called disability proofed areas, such as toilets.

I am not criticising the fact that we have not yet caught up with a welcome improvement in the quality of life of people. If we do not listen to people who are suffering from or living with a disability and those who support them, we will get it wrong over and over again. I do not want to be too specific, but a person appeared in a class that I teach, some years ago, with a severe disability. If I had been consulted in advance by the parents and asked whether this student was able for the course, I would have said "No", based on my professional judgment. That person did extremely well and is highly successful, working in an area of chemical engineering. This is an illustration of my lack of knowledge and understanding and of the need never to underestimate what people with disabilities can do provided certain minimal facilities are made available to them.

There was a considerable controversy in Cork some time ago where the city council was redoing Patrick Street and putting in specific serrated pavements so that people with sight disabilities could know when they were approaching pedestrian crossings. Somebody in the traffic department decided that if these parts of the pavement were left for people with disabilities to use at pedestrian crossings, cars would park there. They promptly stuck bollards in these places, with the result that people who were unsighted would move confidently onto the surface, listen for the signal showing the lights were in their favour and walk promptly into a bollard. It has taken enormous argument to try to resolve this issue, because people do not listen.

The argument with Government that I keep hearing from people with disabilities is that it will not listen. There are also a number of more fundamental arguments. The central aspect of this Bill with which most people take issue, however, is the question of whether it is rights based. There is an argument about whether the right to assessment is an unqualified right. I do not believe it is. However, there is a more profound argument being advanced by the Government, that even if we accept that this is an area where resources have to be available, it would not serve any purpose. A number of issues have arisen in this regard. One of them raised by the Government concerns international best practice. It has cited studies carried out in a variety of countries which are much more advanced than Ireland. It states there is not a single model anywhere and none of them has the unqualified rights-based legislation people are talking about.

However, the Government's own position on this is the basis for the argument in this country for rights-based legislation. The problem here is that people have seen a great many areas where a minuscule level of discretion has turned into an enormous gap in service; or even where people have rights and these were ignored. What would have happened if we did not have unequivocal legal advice about old people in nursing homes? The money would not have been refunded and an extraordinary injustice would have been perpetrated. The unfortunate experience of Irish people, whether they have disabilities, is that even with a guarantee of something one does not necessarily get it. The corollary of that is that if one qualifies something by not making it rights based or by having it resource linked, one is effectively telling people they have no guarantee at all to any access to service. That is the experience.

Let us go through the list. Children have an unequivocal right to free primary education. We have managed to interpret that in a way which means that their unequivocal right to primary education is serviced by schools that, in many cases, the Health and Safety Authority regards as unsafe and many parents consider dangerous. We have qualified that right even where it exists. Therefore, our citizens do not trust the State to provide services it claims it is providing.

There is the industrial inspectorate which is covered by rights-based legislation. Workers have a right to work in a safe environment, to a minimum wage and so on. However, the State's response to ensuring access to such rights is illustrated by the fact that in 1933 the State had 16 industrial inspectors and in 2005 it has 21. The State's response is to hold back the capacity of the citizen to seek its support to enforce existing rights. That is the reason our citizens do not trust the State any more. It is the reason, according to the Government's study, people here are uniquely seeking rights-based disability legislation, but I am not sure the seeking of such legislation is quite that unique. The matter may be to do with jurisprudence in other countries. However, that is the Government's argument.

The reason people seek this legislation is that they do not trust the State because their experience is that of an appallingly poor Administration with letters being unanswered, requests not being responded to or ignored and issues being long fingered. That is the reason people want rights-based legislation. To put it mildly, it is disingenuous of the Government to launch into the usual arguments about litigation and the fact that lawyers get more money out of that process than the litigants. They do because often the families who go to court on behalf of people with various needs do not seek compensation for damages but the right to a service that is supposed to be provided for their children. If they did not have access to the courts, they would have even less of that right. If we were to follow through on the Government's logic on this matter, we might as well abolish the Constitution. Why should we give people unqualified rights under the Constitution on the basis that this only makes money for lawyers? That is the argument put forward by the Minister of State in his contribution. He said that "for every €1 given in settlement of legal cases paid out by the Department of Education and Science, €4 went to pay the fees of members of the legal profession". The reason they could go to court in the first place is that a constitutional guarantee exists.

It is interesting that the great and the good here — in the personages of the Minister for Justice, Equality and Law Reform and those who make long speeches — and the findings of a number of reviews have come down firmly against the idea of socio-economic rights. I find that astonishing because these groups are overwhelmingly dominated by people who have socio-economic rights. They are usually well off, well paid, secure in their employment, their old age and their housing because of their good fortune. They write reports about our Constitution to the effect that nobody should have those rights guaranteed in the Constitution but they have them guaranteed because of their class or good fortune. Why should people not have a right to shelter and a basic income? Why should people who are suffering from a disability not have a right to the necessary services to enable them to have a decent life? Some people get that by good fortune but apparently we are prepared to say that other people should do without it forever. That is the argument about socio-economic rights. We seek socio-economic rights for citizens, rights which most Members of both Houses of the Oireachtas take for granted. No Member of the Houses of the Oireachtas, irrespective of what happens to him or her, will sleep on the streets, ever have a major problem getting to a hospital, or suffer from poverty in old age. Apparently, to give that guarantee universally and constitutionally would somehow turn upside down our system of jurisprudence. That is what this legislation is about.

We have reached a position where people, particularly people with disabilities in the case of this Bill, do not trust the State. That is a fundamental point. They have been let down time after time and know other people who have been let down. They know the services that are supposed to be guaranteed do not work. They are of the view that the least they can get, in the context of this legislation, as a base from which to start is a rights-based guarantee which they can exercise, if necessary and presumably reluctantly, through the courts.

Nobody would dispute that there is much in the Bill that is most welcome, although I cannot believe it took eight years to draft many of its provisions. A Government that enjoyed eight years of the best economic performance, handed over to it by the best Government the country had in the past 20 years, could not get around to dealing with the issue of people with disabilities until late into its second and final term. It finally has a shot at it now, although it has had a succession of shots. The Minister of State is positively eloquent about the levels of consultation but he then tells us, having had all that consultation, that he had to introduce a large number of amendments because the Government got it so wrong. Does the Government listen? Some of the amendments introduced by the Minister of State in the Dáil are astonishing. I read his script, and I am careful to read such scripts, and regarding the amendments introduced in the Dáil, there is reference to the definition of "substantial restriction to ensure certainty". Could the Government not have got an agreed definition before it started this process? Why did people in Opposition and in lobby groups have to shout so loudly to get that?

There is reference to the operation of the Bill being reviewed within five years. Why will that be necessary? Does the Government not understand that people were wary and did not trust it because of previous experience? There is a long list of such references but it is astonishing that it took another lobby, after years of lobbying, to get the Government to introduce what appear to be eminently reasonable amendments. That is the nub of this issue. To whom is the Government listening?

Behind all the good intentions, and I accept the good intentions of many people in Government — there is no one in Government against people with disabilities — there are two issues. The first of these is the extraordinary reluctance of the Department of Finance to envisage any kind of rights-based social provision. The history of that Department, and I have only read some aspects of the history by Professor Ronan Fanning, is of profound conservatism. There is the interesting information it fed to the Government in the 1950s about the imminent collapse of the welfare state in Britain which had only been introduced in 1945, yet the Department was prophesying its imminent collapse by the 1950s. That is the ethos of that Department. I heard a senior official say that cutting taxes is always a good thing. If one believes that the job of a Department of Finance is always to cut taxes, if one gets a chance to do so, how could one reconcile that with a commitment to a set of rights properly set down and a commitment to fund those rights?

One can imagine the shock and horror in the Department of Finance at the idea that Labour and Fine Gael have in common, one of the many ideas we have in common,——