A Cheann Comhairle,
I am delighted to present this Bill to the House today, the purpose of
which is to amend a number of pieces of legislation so that Ireland is in a
position to ratify the United Nations Convention on the Rights of Persons
with Disabilities. The members of the House will know that I have long
been a supporter of rights for persons with disabilities and the enactment
of this Bill, which will allow us to ratify the Convention, will strengthen
the position for this section of society even further. I appreciate that
there are many members of the House who are also committed to this issue
and have sought the ratification of the Convention for some time. It has
taken longer than expected to get to this stage and I am disappointed that
we were not in a position to ratify the Convention by the end of 2016 as we
had committed to in the Programme for Partnership Government and as one of
my personal key priorities. This Government remains committed to
ratification of the Convention When enacted this legislation will bring
about changes to a range of legislation which will have a real effect on
the lives of persons with disabilities.
The ratification of the Convention is the first action listed in the soon
to be published, National Disability Inclusion Strategy 2017-2020. The
process to get to this point has been complex and drawn out. However, when
we ratify we will be doing so in the knowledge that there is no legislation
on the Irish Statute Books that contradicts the Convention. This is a
critical point. It is essential therefore that the State is in a position
to meet the obligations it assumes under the terms of any international
agreement from the moment of its entry into force for Ireland. For us,
ratification is the end of the preparation and implementation process, not
the beginning. Ratification of a Convention before we have amended
domestic legislation that contradicts it makes no sense and does nothing to
ensure compliance or to actually protect the people for whose benefit the
Convention exists.
The Bill covers a range of legislation covering very different areas of
Irish life. I wish to thank the Attorney General’s Office and the many
other Government Departments who have been involved in the development of
this Bill because it is not limited to just the Departments that I have
responsibility for but has a much wider reach.
Despite the hard work of all involved it was not possible to include all
the Heads as set out in the General Scheme, which was approved by the
previous Government in March of last year. I intend to outline what
remains to be completed shortly.
Whilst the primary aim of the Bill is to remove the statutory barriers to
ratification of the Convention, the opportunity is also being taken to
progress a number of other miscellaneous amendments to equality and
disability legislation.
I will now read into the record the main provisions of the Bill.
Section 1 Provides for an amendment of the Juries Act 1976 to provide that
a person who is deaf shall not be ineligible for jury service by reason
only of his or her requiring the services of a sign language interpreter,
and that the existing prohibition on a person who with a mental illness or
disability and is receiving medical treatment or is resident in a hospital
or similar institution from serving is replaced with a functional capacity
test.
Section 2 Provides for an amendment of Electoral Act 1992 to repeal the
prohibition on a person of ‘unsound mind’ from standing for election to the
Dáil (and thereby also removing the disqualifications for membership of the
Seanad and for election to the European Parliament also).
Section 3 Makes two amendments relevant to the National Disability
Authority legislation. It makes provision for the role of the National
Disability Authority as part of the monitoring mechanism for the Convention
and provides that staff of the Authority become civil servants of the
State. The NDA is the only body within the Justice Vote whose staff are
not civil servants. Aside from the impact this anomaly has on the
management of human resources within the Justice Vote (by limiting the
Department’s flexibility to move staff to fill priority needs), that the
NDA’s staff are public servants means that the Board must meet pension
liabilities as they arise from its annual allocation. This is a serious
burden for a small body with a relatively small financial allocation. Civil
servant of the state status would mean that pension liabilities are met
from the Vote for Superannuation and this was the approach adopted in
relation to the Irish Human Rights and Equality Commission when it was
established in November 2014.
Section 4 The UN CRPD provides that reasonable accommodation (i.e.
practical help to ensure that the person with a disability can, for
example, access a service) be provided for people with disabilities in the
areas of employment and provision of services, provided the cost does not
exceed a disproportionate cost. The Supreme Court decided in an Article 26
referral of the Employment Equality Bill 1996 that it would be
unconstitutional to impose such a requirement where the cost exceeds a
nominal cost. The Supreme Court decision hinges on the private property
protection provisions of the Constitution. Clearly, these do not arise in
relation to provision of public services. The Attorney General has advised
that the ‘not exceeding a disproportionate burden’ standard is also
appropriate in the case of commercial bodies whose activities are regulated
for quality of service, viz banks, insurance companies, telecommunications
and transport providers, and credit unions. We are then left with a range
of smaller businesses, such as shops and restaurants. The provision of the
higher standard in the case of the remaining private sector providers can
be considered in the light of developments in relation to EU
anti-discrimination legislation and will need to be subject in the interim
to a reservation.
Section 5 Brings civilian staff of the Garda Síochána back within the terms
of Part 5 of the Disability Act (providing for 3% public sector employment
quota for people with disabilities). This group of civil service staff was
inadvertently removed from the scope of Part 5 by the enactment of the
Garda Síochána Act 2005.
Section 6 Makes two amendments relevant to the Irish Human Rights and
Equality Commission legislation. It provides for the Irish Human Rights and
Equality Commission to act as amicus curiae before the Court of Appeal, as
well as before the High and Supreme Courts as already provided for. It was
not possible – for technical, timing reasons – to include a reference to
the Court of Appeal in the Irish Human Rights and Equality Commission Act
2014, or to insert a cross-reference in the Court of Appeal Act 2014, and
the opportunity is being taken to resolve the anomaly now.
It also creates a statutory basis for IHREC’s role in the monitoring
framework in relation to UN CRPD.
Section 7 Provides for citation and commencement.
I would also like to highlight the Heads that are to be included in the
Bill as Committee Stage amendments, but were not ready in time for
inclusion in the published Bill.
The main head that is outstanding deals with deprivation of liberty. A
draft of text for the deprivation of liberty part of this Bill has been
prepared by the Department of Health, but requires some further work before
it can be submitted to Government. The Department of Health will sponsor a
separate Memorandum for Government on this aspect as soon as the text is at
a sufficiently advanced stage and, it is intended that these provisions
will be brought forward as a Committee Stage amendments. This aspect of
the outstanding work will I suspect take longest to bring to finality.
Clearly, depriving a person of his or her liberty can only be accepted as a
last resort. There needs to be an appropriate balance struck between
protecting individuals who may be a danger or themselves or others, by
ensuring that we can provide social care in suitable settings for
vulnerable individuals, and recognising that citizens are free and should
be free to make decisions for themselves except where the person’s
decision-making capacity is lacking.
The other Heads, on which work is ongoing, concern:
Head 6 This Head proposes to amend section 4 of the Criminal Law (Insanity)
Act 2006 to provide that in the circumstances that existed in G. v District
Judge Murphy, the District Court will have jurisdiction to determine
whether the accused person is fit to be tried.
What is at issue here is to ensure that if a person is deemed to be not fit
to be tried by the District Court and sent on to the Circuit Court – and if
that second Court forms the view that the person is in face fit to be tried
– then the lower limit on penalties available in the District Court should
still apply to that person. That explanation is in layman’s language – I
have a more detailed legal explanatory text if Deputies have any questions.
Head 7 This head provides for the replacement of a number of references in
statute to ‘lunatics’ or ‘persons of unsound mind’ where the reference
makes the person ineligible for membership or cease to be a member of
certain bodies or offices insofar as those amendments may be required for
ratification. This Head has an impact on a number of pieces of
legislation.
Head 10 Provides for amendments to the Equal Status Acts 2000 - 2015.
Following the enactment of the Gender Recognition Act 2015, it is desirable
to make explicit the prohibition of discrimination against transgender
persons under equality legislation to reflect the significance of the
establishment of a system of legal recognition of the acquired gender of
transgender persons and of intersex persons.
Head 11 Provides for amendments to the Employment Equality Acts 1998 -2015.
Follows Head 10 in making a corresponding amendment to the Employment
Equality Acts.
Head 12 Amends the Employment Equality Acts to encompass prospective
employees, employers, vocational training bodies, professional bodies and
trade unions in the definition of victimisation. At present, the text of
the definition of victimisation refers only to an employer/employee
relationship. This is out of line with EU legislation and the jurisprudence
of the European Court of Justice.
Head 13 Amendment of Taxes Consolidation Act 1997. This amendment was
intended for inclusion in the Assisted Decision-Making (Capacity) Act but
for timing reasons it was not possible to include it. The opportunity is
being taken to make the amendment now. The amendment to the Taxes
Consolidation Act will include the categories of decision-making
representatives and attorneys as persons authorised to handle tax matters
on behalf of incapacitated people.
Head 15 Amendment of Social Welfare Consolidation Act 2005. This is a new
head which was not included in the General Scheme as approved by Government
in March 2016. The existing legislative provisions in the Social Welfare
Consolidation Act 2005 empowers the Minister for Social Protection to make
regulations to appoint a person to act on behalf of a recipient or
beneficiary of social welfare payments in circumstances where the
recipient/beneficiary is certified by a registered medical practitioner to
be a person who is, or is likely soon to become, unable for the time being
to manage his or her own financial affairs. The Assisted Decision-Making
(Capacity) Act 2015 sets out guiding principles that are intended to
safeguard the autonomy and dignity of the person with impaired capacity and
it is vital that the social protection arena takes full account of those
principles.
The Bill will be progressed to enactment at an early date to facilitate
ratification of the UN Convention as soon as possible. The precise timing
of ratification now depends on how long it takes for the Bill to progress
through the enactment process and on issues in relation to commencement of
the Deprivation of Liberty provisions, which will be included in the
Committee Stage amendments, and of the Assisted Decision Making (Capacity)
Act 2015. Considerable progress has already been made to overcome the
other legislative barriers to ratification that are not being addressed in
the Disability (Miscellaneous Provisions) Bill.
The Assisted Decision-Making (Capacity) Act 2015 was signed into law on 30
December 2015 and is a comprehensive reform of the law on decision-making
capacity. The Criminal Law (Sexual Offences) Bill 2015 completed Committee
Stage in December 2016 and is scheduled to return to the Dáil for Report
Stage on the 1st of February, 2017. When enacted, the Bill will reform
Section 5 of the Criminal Law (Sexual Offences) Act 1993 to facilitate the
full participation in family life of persons with intellectual disabilities
and the full expression of their human rights. Achieving the necessary
balance between those rights and ensuring appropriate protection is
crucial.
In conclusion, this legislation is good news for not just those who are
directly affected by disability but for all members of society as it seeks
to make it more equal and inclusive. I look forward to engaging further
with Deputies from all sides of the House and ensuring that an effective
Bill is passed and enacted as soon as the outstanding work has been
completed.