Ulick Burke (Fine Gael)

We must give credit to Senator Mooney who stated in the House today that, as a parent, he was not happy with the Bill. He said that if he were outside politics, he would not accept its provisions. Senator Mooney's contribution took great courage. Many Dáil and Seanad Members have communicated over the past ten years with various representative groups in the disabilities sectors and none could in conscience say they could not have a rights-based Bill. Politics, legislative imperatives and procedure, however, have taken their toll.

While everyone agrees legislation must take resources into account, the Government has adopted as a scare tactic the argument that a rights-based Bill would lead to a rush to the courts. Can the Minister of State tell the House why, if the Government believes the legislation to be free of warts, it is necessary to block access to the courts? As there would be no rush to the courts if the legislation was adequate, why is the Government's fear such as to demand a caveat which prevents court access? If I received a legitimate answer, I would change my mind on certain issues. I would appreciate a meaningful response from the Minister of State when he winds up the Second Stage debate.

The Government has no interest in rights-based legislation and we have seen no courage or imagination from the Minister of State. Even if he wanted to, it seems his senior colleagues would not allow the Minister of State to amend the fundamentally flawed Disability Bill. All representative bodies in the disabilities sector have said the Bill was flawed from its inception. Having engaged in years of consultation, which continues, the sector sought meaningful legislation. The 2001 Bill was withdrawn with the Taoiseach's promise that it would be changed meaningfully but nothing has happened in the meantime. When I heard someone remark on the sincerity of the Taoiseach in this context, I recalled his statements after the Special Olympics to the effect that it was a wonderful occasion for all, especially the disabled participants. He stated clearly that he would prioritise their needs and provide funding to create access. One must consider the sincerity of his statements in light of the Bill before the House.

Every provision in the Bill is qualified by reference to the availability of resources. The Bill employs the terms "should", "might" and "could" which constitute an opt-out clause. At the launch of the legislation, the Taoiseach, in the presence of the Tánaiste, indicated that no other country would have such up-to-date legislation or provide for such a response to people with disability. That the statement is true is clear from the comments of representatives of the Irish Wheelchair Association that no other country would enact legislation which denies the right of people with disabilities to access services and qualifies its every provision.

The Bill must be a terrible kick in the teeth to the individuals, families and groups who worked so hard for people with disabilities. One must ask why so many have walked away from the consultation process being overseen by the DLCG. They realised the legislation was flawed and did not want to participate any further in the process. The other groups have remained in the process in the hope that some small crumbs might fall to them by way of amendments. Those hopes must be viewed in the context of the Minister of State's contention that there will be no fundamental change to the core principles of the legislation. Why spend three days discussing the Bill when we know few significant and worthwhile amendments will be made to it?

The Disability Bill 2004 is a pale shadow of the legislation the Taoiseach promised when he was forced to withdraw the 2001 Bill after the 2003 Special Olympics. He said clearly that we would enact better legislation than any other country but we will have to wait and see. The Bill is designed to prevent further judicial intervention other than on a point of law. Why was it necessary to introduce that? I accept that the O'Donoghue and Jamie Sinnott cases frightened everybody. The courts made right decisions in those cases. Those who drew up the legislation had one thing in mind — to ensure there would no longer be access to the courts. I agree it is a waste of resources going through that process. The Constitution entitles people to have recourse to the courts as a last resort. If the legislation is, as has been claimed, the best in the world, why was it necessary to prevent access to the courts?

The Minister of State referred to value for money and cost in regard to the legislation. I urge him to examine the bureaucratic process the legislation will put in place that will include appeals officers, assessment officers, liaison officers and a plethora of support staff. Has the expenditure on staff been costed? How many people will be recruited and will it be done on the basis of county, population or representative group? Rather than put in place a structure with so many financial demands in terms of resourcing, would it not be better if the system were simplified and people were entitled to services as of right? That would eliminate the need for the employment of so many additional staff.

Nothing in the legislation indicates the process will be in any way independent. It reminds me of what happened in the Department of Agriculture and Food. I do not wish to draw a general analogy other than in regard to the appeals process. A former Minister for Agriculture and Food set up an appeals mechanism based on appeals officers who are employed by the Department. It is proposed to adopt a similar procedure here in that the people adjudicating on the appeals will be employed by the HSE. It is not the case that I do not trust them to give a professional judgment, however it is unlikely that they would overturn a decision based on a report drawn up by their colleagues.

We all perhaps fall a little short of the yardstick of the Minister of State, Deputy Fahey. His body language is enough to signify his sufferance in listening to us. I have seen this attitude before from the Minister of State. I will note it and let it pass.