Trevor Ó Clochartaigh (Sinn Fein) | Oireachtas source

Tá céad fáilte roimh an Aire. Is dóigh go bhféadfar a rá gur lá maith don Seanad an lá inniu agus an méid atá ráite ag an Aire anseo go n-aontaíonn sí leis an Seanadóir Zappone gur gá an reachtaíocht atá ann i láthair na huaire a athrú agus go nglacann sí i bprionsabail leis na moltaí atá an Seanadóir ag cur chun cinn.

Having listened to the Minister's contribution, it should be said this is a good day for the Seanad. It is very welcome that the Minister stated she agrees with Senator Zappone that the law at present should be repealed and that in principle she takes the thrust of what the Senator is putting forward and accepts it. We also certainly support the Bill from this perspective. It is good this is happening today in the Seanad. I hope the level of priority the Minister indicated will be given to the legislation because we know she is very busy with much on her plate and we hope the legislation she is discussing will be moved as quickly as possible through the parliamentary process so it becomes a reality for the people living in difficult situations at present.

I welcome our guests in the Gallery, many of whom are from my home town of Galway. It is great to see the work done by Senator Zappone, the people from NUIG who are here, and the members of the Blue Teapot Theatre Company. I will mention a neighbour of mine, Paul Connolly, who is one of its stars. He would not let me go if I did not mention the fact he is involved with the group.

As republicans, we in Sinn Féin believe all people living with a disability have the right to have their whole person recognised, their capabilities valued and developed to full potential and their dignity respected. We believe disabled people should have the right to make choices about their lives and be consulted, heard and resourced in all matters affecting them. Disabled people should be protected against all exploitation and all regulations and all treatment of a discriminatory, abusive or degrading nature. People with disabilities have the right to a poverty-free life facilitated by direct payments to offset the cost of disability and to equal access and equal participation in education, employment and training.

People with disabilities have the right to access appropriate co-ordinated services. The State has a duty to provide such services as well as proper individual needs assessments. I very much welcome Senator Zappone's Bill which aims to eliminate discrimination against those with intellectual disabilities in Irish legislation concerning sexual offences. The Bill will repeal the existing law which is discriminatory in that it criminalises sexual activity of people who are mentally impaired unless they are married to one another. Here in this State a person's mental capacity or decision-making skills are often used to restrict or deny his or her legal capacity. This disproportionately affects people with disabilities whose mental capacity is more likely to be questioned than that of non-disabled people. This means all people are not treated as equal in the eyes of the law.

Assessing mental capacity is most commonly done via the functional test. This test requires individuals to demonstrate that for the specific decision they are able to understand information about the decision, including the nature and consequences of the decision, use and weigh information to come to a decision, retain the information long enough to make a decision and communicate the decision to third parties. However, as we have heard there, is now widespread criticism of the functional test.

The UN Committee on the Rights of Persons with Disabilities stated in its general comment on Article 12 that it does not permit this discriminatory denial of legal capacity and instead requires that support be provided for the exercise of legal capacity. By using this test for mental capacity to distinguish an individual's ability to consent to sex, we hold people with a disability to a higher standard than the rest of the population. We do not make all citizens prove to us that they understand and appreciate the nature and consequences of their decision when they engage in sexual activity. We only demand this standard of people with a disability and this is clearly discriminatory.

Sinn Féin also welcomes the introduction of a new offence of abuse of position of dependence or trust, which will address the law created by the abolition of the outdated section 5. I reiterate Sinn Féin's support for the Bill and I commend Senator Zappone on bringing it before us. I wish her the best with it. Cuirim fáilte roimh an reachtaíocht but with the caveat that while we appreciate the Minister stated she is in favour of the thrust of the Bill and will bring forward her own legislation, we hope we will not have to wait for the legislation because it got caught in the quagmire of legislation which is already in the Office of the Attorney General. We are often told legislation is on the way but we do not see it. The people in the Gallery deserve equality in this regard and I hope it can be brought forward as soon as possible.