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31 January 2017
Statement by Finian McGrath TD, Minister of State with Special Responsibility for Disability Issues
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 has 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 fact 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.