Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

This amendment seeks the introduction of a new subsection under section 8 of the 2015 Act which sets out the guiding principles to be followed regarding an intervention being made in respect of a relevant person. The amendment seeks to have the guiding principles interpreted in line with the United Nations convention and, in particular, Article 12 and general comment 1 of the UN committee on the CRPD.

While recognising the proposed amendment is well-intentioned, my position has not changed since earlier Stages and I am not in a position to accept this amendment. It is problematic from a legal perspective as the provision is insufficiently clear for inclusion in primary legislation. I would also argue it is unnecessary from a policy perspective. The convention was drafted as an international treaty, not as a measure for direct inclusion into primary law. Taken as a whole, the convention is too large to allude to in the manner proposed. The text of the convention is primarily by way of statements that set out a standard that contracting parties should aspire to achieve across their respective legislative programmes. From a technical perspective, the language of the convention does not lend itself to inclusion in primary legislation. Rather, it sets general principles which must then be translated into more specific obligations to be introduced into national law.

General comment 1 is not drafted as a statutory provision, but rather as a textual guide to the relevant sections of the convention. It would be highly unusual and legally problematic to grant such language the force of domestic law in the manner proposed. Aside from the technical difficulties with the amendment, since ratification of the convention by Ireland, there is an overarching and existing obligation on public bodies to be compliant with the CRPD. This means that the obligation the amendment intends to create already exists as a matter of domestic law without the need for the proposed amendment.