The Disability Bill 2004 marks the cornerstone of Government legislation and policy in the area of disability and the Commission welcomes the decision of the Minister for Justice, Equality and Law Reform to refer this Bill to the Commission for its views. The Commission’s observations were forwarded to Minister Michael McDowell on 15th November, 2004.
The promotion and protection of the human rights of persons with disabilities is a key area of work for the Irish Human Rights Commission (IHRC).
The President of the Human Rights Commission, Dr. Maurice Manning, stated "The Commission views the Disability Bill 2004 as presenting a crucial opportunity to address the human rights needs of persons with disability. The most important issue in addressing those needs is the putting in place of adequate funding and the provision of services which guarantee (i) the ‘progressive realisation’ of the economic and social rights of persons with disability; and (ii) that standards of services never fall below a floor of core minimum standards consistent with the imperative of human dignity. The human rights of persons with disabilities must be the paramount consideration in the rationalisation of resources and services. In spite of the evident effort and in some instances genuine advances made by the Government in this legislation, the Commission regrets that the opportunity to put in place proper human rights standards and structures has not been fully availed of in the present Bill."
Overall, the Disability Bill 2004 contains an elaborate and complex scheme for the assessment of needs and delivery of services to persons with disability. The two core aspects from a human rights perspective are the proposals for an independent assessment of individual needs and the development of sectoral plans by Government Departments for new structures and resources. In assessing the compliance of the Bill with human rights standards the Commission examined not only whether the Bill put in place the necessary mechanisms for the protection and vindication of rights, but also whether those mechanisms and systems are likely to be effective in practice.
The Commission’s Observations on the Disability Bill goes on to identify a number of areas in which the present Bill could be improved:
The general exclusion of court proceedings is a central aspect of the Bill. The standard of justiciability required by international human rights law is effectiveness. If judicial remedies are excluded, the onus is on the State to demonstrate that the proposed administrative remedies are effective.
The IHRC recommends that the definition of disability contained in the Bill should be amended to reflect international standards. The inclusion of the terms "substantial" and "permanent" in the proposed definition give rise to particular concern that the definition may be applied as an exclusion of certain important categories of disabilities or may be applied in an excessively subjective manner.
In the view of the IHRC, the Bill should contain a clear statement that there must be a presumption in favour of the progressive realisation of rights and respect for basic human dignity. Human rights concerns cannot be viewed as simply one of a number of factors to be considered in the allocation of resources. Considerations of human rights should be moved to centre stage when it comes to resource allocation.
The proposed system of funding under the Bill affords service providers a wide discretion to deviate from the provision of resources identified as being required by persons with disabilities. Further steps could be taken to ensure there is a presumption in favour of providing the necessary resources except in exceptional circumstances.
Commitments to accessibility of buildings and services contained in the Bill are disappointing and do not reflect recent developments in international human rights law, particularly under the ECHR.
The Sectoral Plans as presently drafted are vague in nature and the IHRC calls for the publication of detailed Sectoral Plans in advance of the enactment of legislation which would allow an informed assessment of the likely level of services which will be provided.
The provision that assessment officers may delegate their functions to officers of health boards and the discretion surrounding the involvement of the applicant and his or her representative or advocate in the assessment process raise questions about the independence of the assessment process.
The full text of the Commission’s Observations are available from our website www.ihrc.ie
A spokesperson from the Commission is available for comment.
For further information, please contact:
Mary Ruddy
Senior Human Rights Awareness Officer
Irish Human Rights Commission.
Jervis House,
Jervis Street,
Dublin 1.
Tel. 01 8589 601
Mobile: 087 6407765
E-mail: info@ihrc.ie
Website : http://www.ihrc.ie
BACKGROUND NOTE
In examining the Disability Bill 2004 the Human Rights Commission is specifically conscious of the potential relationship between the proposed Bill and the European Convention on Human Rights Act 2003 (ECHR Act). One of the key elements of the ECHR Act is the imposition of a statutory duty on public bodies to act in compliance with the ECHR Act. Public bodies which fail to do so may be found liable by the Courts leading to the striking down of decisions and/or damages levied against them. It is unclear how the ECHR rights of persons with disabilities may be affected by the present Bill, potentially the Bill could create an indirect barrier to future actions under the ECHR Act by providing for new but weak remedies. The present Bill may restrict the ability of persons with disabilities to rely on the evolving Strasbourg jurisprudence, as a public body could argue it was acting in accordance with a clear statutory provision which did not require it to act in compliance with the Convention.
This point about the relationship between remedies under the ECHR Act and remedies under any proposed statutory provisions raises questions of wider significance than the proposed Bill, but this is the first instance in which the IHRC has come to examine the potential impact of new legislation on the operation of the ECHR Act.
As a general point the IHRC recommends that each provision of the Disability Bill should be compliant with ECHR requirements to ensure that the proposed Bill is complementary to existing protections and does not create difficulties of conflicting levels of protection.
Also of significance here is the relationship between the programmatic achievement of rights and the existing protection of subjective individual rights under the Employment Equality Act 1998 and the Equal Status Act 2000. In particular, the Commission notes the different definition of disability contained in equality legislation from that proposed in the Bill. The Commission wish to emphasise that any proposals contained in the Bill must be complementary to and consistent with existing protections of individual rights under the existing equality framework.
Click here to download Observations on the Disability_Bill_2004 (366 KB)