Prof. Gerard Quinn
Irish Human Rights Commission.
Today is international human rights day. It commemorates the adoption of the Universal Declaration of Human Rights by the United Nations in 1948. Importantly, that document goes beyond the libertarian agenda of controlling public power. It also deals with the need to restore power to people over their own lives by providing them with a set of socio-economic rights like education. This interdependence between political and civil rights (such as the right to fair trial) and socio-economic rights (such as education) is one of the hallmarks of the Declaration. In fact, it lies at the heart of the rights-based approach to disability. Yet it is this very interdependence that is at stake in the disability debate in Ireland at the moment.
Starting from a low base Ireland moved ahead with quantum leaps in the 1990s. Ireland was one of the first countries in the world to establish a Commission on the Status of Persons with Disabilities whose 1996 Report still stands as a shining example to others. In the late 1990s Ireland fully embraced the non-discrimination agenda with two landmark pieces of legislation (Equal Status Act and Employment Equality Act). Again, in the late 1990s, Ireland resolved to take the next logical step and to enact a comprehensive Disability Bill which would provide a clear legislative framework for the disparate web of services and positive action measures in favour of persons with disabilities.
It will be recalled that the original Disability Bill was withdrawn in the Spring of 2002 because of the outraged reactions of disability groups to Section 47 which would have banned any recourse to the courts. A lengthy process of consultation then ensued between the Government and the broad disability sector spearheaded by the Disability Legislation Consultation Group (DLCG). In early 2003 the DLCG recommended the provision of effective legal remedies. For its part the Human Rights Commission published Observations in May 2003 on the question of enforceability of socio-economic rights in the context of the DLCG recommendations. Its analysis revealed that while international law leans toward judicial remedies in the context of socio-economic rights, it still allows States considerable latitude to adopt administrative remedies provided those remedies are ‘timely, accessible, affordable and effective.’ These then are the criteria according to which the enforcement arrangement in the present Bill should be judged.
Unfortunately, and around the same time as the fall of the original Disability Bill (and not unconnected) Ireland began to back pedal on one of its more distinctive foreign policy objectives to secure a United Nations Convention on the Rights of Persons with Disabilities. One can only surmise that the Government feared that this treaty might be too obviously ahead of Irish official thinking at that time. Ideology got in the way of rationality. This was despite the fact that the treaty does not purport to create new law but simply to clarify Ireland’s existing legal obligations including those dealing with socio-economic rights. As Minister of State at the Department of Foreign Affairs, Mr Tom Kitt T.D., did much to turn that negativity around and to ensure that the Irish negotiating position was at least consistent with our existing international obligations. At the very least, the Human Rights Commission would like to see Mr Kitt’s positive legacy intensified as the treaty negotiations enter a crucial phase next year and deal with important matters such as international monitoring and development co-operation.
A second Disability Bill has been published this Autumn by the Government. The Human Rights Commission published its Observations on the Bill in November. It identified three central concerns from the perspective of international law.
First of all, the key international legal obligation to ‘progressively achieve’ socio economic rights is not reflected in the Bill. Thus, the tap of resources can be turned on or off, or up or down, without too much let or hindrance. ‘Politics as usual’ is not exactly reassuring to persons with disabilities. Socio-economic rights insist on principle, rationality and equity in the process of resource allocation and in a forward moving dynamic even in scarce times – factors that were conspicuously absent in the past. Minister Cowen’s budget is a notable break with the past.
It is now essential to ensure this is not a once-off improvement but represents an on-going commitment to a recognition of the rights of persons with disability to a level of resources and services necessary to protect and respect their dignity.
Secondly, the Commission’s analysis revealed that even where resources are genuinely scarce there is also an international legal obligation to secure a floor of rights and services beneath which people should never be allowed to fall. And yet this safety net or floor is also absent from the Bill. That is why the related issue of minimum standards for service providers is so crucial.
Thirdly, and precisely because of the absence of a requirement of ‘progressive achievement’, the complex system of decisions and appeals envisaged by the Bill would not appear designed to get at the core question of resources. The new right of appeal to the courts is confined to ‘points of law’ which telescopes the judicial task to technical questions of interpretation (Section 19). The right of ‘judicial enforcement’ of ‘service statements’ can only latch on to prior determinations of service which have already been discounted by resource scarcity (Section 21). That is, the Bill contains no in-built onus on service-providers to develop capacities or to roll forward resources to ensure a progressive dynamic of change. The Bill seems to give them every excuse to stand still. In this light, the courts seem left with gums not teeth. It was for this reason the Human Rights Commission found that the web of remedies proposed could not be ‘effective’ as required under international law.
An opportunity still exists to give effective statutory expression to the international legal ideal of ‘progressive achievement’ and to place a floor of provision beneath people. It should be grasped in keeping with the spirit of the Budget. To do this we need to take our international legal obligations seriously and to be unafraid to resume the political high ground we had on the issue throughout the 1990s.