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'This is now a totally flawed and fundamentally inadequate piece of legislation'
If you think the disability bill recently passed in the Dail has nothing to do with you, you should think again. If passed into legislation, it represents a major assault on all our constitutional rights. This author has no political allegiance and is concerned with the interests of disabled people and the contribution they can make to the wider community. In that context and for reasons set out below, it is nevertheless necessary to say that Fianna Fail and the PDs deserve a roasting on this issue alone at the next general election.
For the second time they have introduced legislation that is in opposition to everything the disability lobby has asked for - and so desperately needs - and in doing so they are conducting a unique experiment in tampering with the constitution. If they succeed there can be no doubt that the bill will be used as a precedent for future legislation. The first attempt to introduce disability legislation in 2002 ended in disgrace amid an outcry from disability groups because of its inadequacy. Second time round, we were promised there would not be a repeat of the first fiasco - the views and wishes of people with disability were to be taken on board. A Disability Legislation Consultation Group was set up to include senior representatives from a number of disability bodies and for three years they toiled over the content and guiding principles of the bill. A comprehensive set of recommendations were submitted to the government by the DLCG. But the ‘consultation’ turned out to be a charade. The press release issued by the DLCG in May 2005 states:
‘This is now a totally flawed and fundamentally inadequate piece of legislation. It fails to meet the needs of the disability sector and we are appalled that the Government is determined to ram it through the Oireachtas in the face of opposition from the very people it was originally designed to benefit.’
It’s now clear that the consultation was a strategy for keeping potential opponents on side for as long as possible so that the time for effective protest would be minimised. At the time of writing, the Bill awaits the approval of the President who may refer it to the Supreme Court because of its constitutional implications. Whatever the President decides, the government are on notice: the disability lobby will not forget this. The government has, yet again, turned its back on the disability lobby.
We would be wise to look carefully at the promises the opposition parties are now making. At a meeting called by the Limerick Parents & Friends Association of the Mentally Handicapped in Pery’s Hotel, Limerick on Monday June 27th, they gave their responses to the results of the final reading in Dail Eireann which saw the Bill through to the Senate. The history of the Bill was described by the main speakers for the evening who included: Justice Fergus Flood (Retired); Deirdre Carroll, Chief Executive Officer of the National Association for the Mentally Handicapped; Dr Arthur O’ Reilly, expert on international human rights law; Molly Buckley of the Irish Wheelchair Association and Seamus Green, Director of the National Parents and Siblings Alliance. The account of how the Disability Legislation Consultation Group had been misled made angering and depressing listening. Deirdre Carroll outlined the five essential points they had asked Minister Frank Fahey to incorporate into the bill:
1. A clear and unequivocal right to assessment of need – not resource dependent;
None of these conditions has been met.
The consensus at the end of the hour was that the time had come to avoid the ‘trust me’ politicians who had used us so badly. Justice Flood argued persuasively for rights-based legislation, as did all the speakers. He saw it as ‘absolutely crucial to a strategy for equality to set out the rights of [disabled] people who must have a right of access to the courts.’ (Minister Frank Fahey turned the Justice’s words on their head the following night in the Dail when he claimed that Justice Flood was recommending an increase in judicial power. In fact, it is the Minister and his colleagues in government who have introduced a Bill designed carefully and deliberately to reserve exclusive power to themselves and to undermine the weak rights that had been established through the courts in recent years – with serious consequences for the constitutional rights of every citizen of Ireland in the process. But that’s this government for you: always accusing their critics of the very thing they are doing themselves.)
Dr Arthur O Reilly pointed to a number of grounds for possible legal challenges to the legislation under international treaties to which Ireland is a signatory. Treaties such as the International Covenant ratified in 1989, have formally rejected the use of a resource-based argument - used extensively throughout the disability bill and the Special Education Needs Bill before it - as a rationale for restricting the rights of citizens. This demolishes the governments claim that they are being asked to introduce unique legislation: they are already obliged under a number of treaties to rights-based principles and are, in fact, trying to escape obligations under those treaties, and under our own constitution, with this legislation. Of course, successive governments have ignored or resisted these same obligations for decades.
Next it was the turn of the politicians who included Joe Higgins TD for the Socialists, Dan Boyle TD, (Cork West Central) for the Greens, Aengus O’ Snodaigh for Sinn Fein, Kathleen Lynch (Lab, Cork North Central) Finnian McGrath, (Independent, Dublin North Central) and David Stanton (Fine Gael, Cork East). Each was more concerned than the last and the air was filled with impressive soundbites. Perhaps the most apposite was one of Dan Boyle’s who adapted a quote from Michael McDowell by saying this was a situation in which ‘a little inequality was definitely not a good thing’. Ger South, Chairman of the meeting asked the Deputies to say categorically whether or not their parties would agree to rights-based legislation: the Greens, the Independent (in line with half of the 14 Independent TDs in the Dail), Sinn Fein and the Socialist Parties all unequivocally said they were in favour. Kathleen Lynch had to be pressed on the point before she also said that Labour were in favour. Only David Stanton of Fine Gael declined, saying it would be important to ‘see how the new bill played out’. So why have Fine Gael voted against the bill now if they are preparing to work with it if elected? This doesn’t add up. The million-strong disability lobby wants the bill scrapped. Interestingly, the Irish Examiner in reporting the meeting the next day said that both Labour and FG had said they could not give ‘written’ confirmation of support for rights-based legislation. Labour is doing an election deal with Fine Gael and there is doubt about what their joint position actually is. It should be known that, more than the representatives of any other party, Kathleen Lynch and David Stanton have put tremendous effort into seeking amendments to the bill during its progress through the Dail. But their personal contributions seem to be at odds with their parties’ ambiguity about the issue. This needs to be openly resolved well before the election if they want to capitalise on the PR work of Stanton and Lynch. Meanwhile, other parties are clearly in favour of rights-based legislation.
Within the Fianna Fail party, countless numbers of TDs say privately to representatives of disability groups that they support their aims – many more than the majority by which this Bill was passed and a lot more than the majority by which the government holds its balance of power (5). When their support was urgently needed, not a single one of them voted against the Bill. The disability lobby must do all it can now to persuade the public at large to break out of traditional voting habits if necessary and to give this issue priority at the next election. In the meantime, we need to be reassured that if we vote for other parties we will not simply be transferring our support to another coalition of ‘trust me’ politicians.
A list of TDs who voted to pass the bill will shortly be available from the [proposed - ed] Disability category on the Indymedia Irealnd website or email firstname.lastname@example.org - telephone 023 36815.
Recent Indymedia Ireland Articles On Disability Issues