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 Monday July 04, 2005 17:39 by Miriam Cotton
 'This is now a totally flawed and fundamentally inadequate piece of legislation'
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 miriamcotton@eircom.net - telephone 023 36815.
Recent Indymedia Ireland Articles On Disability Issues
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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.
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Comments (10 of 10)
Jump To Comment: 10 9 8 7 6 5 4 3 2 1to try by bestest to drape a flag on the coffin of all the previous commentators, unless of course they in good taste refuse "the honour" as tainted.
cheaper than a yankee soldier
If you are not already aware of the DLPRU at NUI Galway, they are doing great work in this field. You can visit their website here:
http://www.nuigalway.ie/law/disability.html
In May of this year they released the following statement about the Disability Bill (now passed into law).
"The members of teh Disability Law & Poicy Research Unit (based in the Faculty of Law, NUI, Galway), have issued a statement to express dismay at the apparent collapse of teh consultative process surrounding the passage of the Disability Bill. The statement goes on to say:
The absence of trust on the question of resources to underpin the so-called 'rights-based approach' to the provision of services for disabled people is palpable.
The stark reality for groups that have remained relatively invisible in Irish society for so long is that proviison for them has often been piecemeal and dependent on who can speak with the loudes voice. The lived experience of Irish disabled people and their families is ample testimony to this. This is no longer good enough. In fact, it never was.
Resourcing is never going to be perfect. But is entirely legitimate that disability groups would require some extra assurance, going beyond political rhetoric, that there will be a floor of basic proviison beneath which no oe will be allowed to fall. Considerations of human dignity alone would strongly point to the need for such minimum provision.
However, the Disability Bill does not provide any such floor. Additionally, it is understandable that disabled people would call for some extra assurance that there be a process embedded in the law to progressively build on any floor of provision so that the promise of equal citizenship and participation could become a reality. People understand that things don't happen overnight but they need to know that they will happen. The Bill, as it stands, does not foster and suc progressive dynamic.
Expressing such a 'floor' and 'positive dynamic' in terms of legal rights does no violence to the allocational prerogatives of the State which, of necessity, is charged with balancing many competing calls on resources. Rather, it gives the assurance that disabled people so desperately need that such allocational decisions will, in the future, be made rationally and equitably.
Likewise, the provision of an adequate enforcement mechanism is not impossible. It is notable that while the UN Committee on Economic, Social and Cultural Rights presumes the availability of a judicial enforcement mechanism, is also considers an appropriate administrative mechanism to be acceptable provided the remedies afforded are 'accessible, affordable, timely and effective'. The remedies suggested in the current Bill would not appear to meet these criteria. The Ombudsman model might indeed be worth exploring but, with respect, not on the basis of the current Irish model. It would appear that the Swedish Disability Ombudsman has much more extensive or effective powers that are certainly worth exploring as a complementary mechanism for the progressive realisation of rights.
Professor Gerard Quinn
Mary Keys
Shivaun Quinlan
Dr Padraic Kenna
Donncha O Connell
Disability Law & Policy Research Unit
Faculty of Law
NUI, Galway
Miriam,
Thanks for this extensive update. It is appalling that this legislation is going through, after all the lip service promising reform. One more fake consultation process. Maybe some EU-level complaint could be filed because of the sham of the consultation process. A public demonstration, as previously suggested, to put pressure on the President to put this to the Supreme Court, is a very good idea.
I hate the way things like this are so carefully timed so as to avoid having to respond publicly while the Dail is in session. And I hate the way the government is so keen to "use" the disabled community around election time, and then ignore them flagrantly inbetween. It is unforgivable that the disabled community is once again being forced to beg to have its most basic human rights respected.
You are right to raise questions now about where FG and Labour really stand. Now is the time to be asking those questions. It is all too likely that unless there is a lot of public pressure, it will not get included on whatever legislative priorities they are now discussing among themselves.
Re Terry and Laurences’ comments: I completely agree both that the problems people are experiencing across a range of issues are the same (political manipulation, lack of real democracy and/or accountability etc etc) and also that the party political system is strangling the life-blood out of community and public life in the way Laurence describes. There is no possibility of individual discretion among politicians any longer. It’s difficult to write about these things without ending up in a tired old rant about ‘short-termism’, ‘corporate intimidation’, ‘government puppets of corporate paymasters’ etc. All those things are true, but maybe some traditional forms of protest have lost their ability to convince people? Time was when a demonstration by a few thousand people would create a real climate of concern. Not any longer. People are jaded and cynical and also on a subconscious level they believe they have lost the argument before they even try to argue it. Besides, government simply anticipates this form of protest and effectively rubbishes it in a largely compliant national media. And nobody wants to be ‘unpopular’ anymore - no matter how appalling the injustice opposed, bizarrely, people seem to reserve an even greater contempt for those who object. I think we need to forget traditional forms of access to publicity – mainstream media lets us all down continually in any case (its also increasingly irrelevant to the everyday lives of ‘ordinary’ people). Someone recently suggested to me that there is an untapped source of peaceful protest that may prove to be more effective in achieving what we want and more difficult for politicians to monitor - and therefore to manipulate: by networking extensively on a national, local and especially on an individual level on a particular issue, we might influence opinion more than politicians suspect. We should include professional organisations, research institutes and academics, individual contacts etc. It may not be in the public eye but possibly all the more effective for that. I believe the disability issue is a good place to start a coordinated effort of this sort. It is a huge lobby compared to many others and it affects people of all persuasions and positions. Whaddya think?
Miriam
These are serious issues, but I wonder if they are so separate...
Most if not all Indymedia readers will naturally be in support of the disability campaigners - as will most people in the country. But what to do? As Miriam's article points out, the main opposition parties are ambiguous on this and matters are unlikely to improve if the government changes - FG and Labour politicians will get the same advice from the same civil servants, and write the same kind of legislation if they get that far.
As disability campaigners know from the experience of the Community Platform in the last partnership round, this experience is shared by activists on many other issues - by community groups, travellers' rights activists, environmentalists (incinerators, Shell pipeline), aid agencies, peace groups (Shannon stopover), heritage activists (Tara) and more. We get consulted to death (or most of us do), and then the State goes ahead and does what suits them anyway.
Individually none of us (including disability groups) are strong enough to do more than put pressure on at the edges or win on individual points. If we want to actually win something more significant (eg a genuinely rights-based society, a decent health service etc.) we need each other.
Miriam,
When you say:
"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."
-I think you will have to agree it is the threat of the party apparatus, largely through the instrument of the Party Whip that causes most of the TDs to vote in the opposite manner to the expressed wishes. This is quite central to the issue of parlimentary democracy, because the use of the party whip is clearly dictatorial.
Obviously because of the numerous High Court cases over the years that managed to secure certain rights for the disabled, the government have decided to close off this avenue with this Bill by investing more power in themselves.
It is unclear how to proceed here and it is sad that we are now relying our hopes on just one person -the President -to refer this Bill to the Supreme Court. If we lived in a so-called democracy, then how could the wishes of so many depend on so few? No doubt as usual the government will claim it was introduced democratically, but we know otherwise.
The only possible suggestion that I can think of is some kind of mass rally on the Presidents lawn up in the Park to try and publicly embarrass her into referring it to the Supreme Court.
This article relates to the disability legislation just passed by the Dail. Some of the comments above would be more approp for the Live 8 pieces elsewhere on Indymedia? I was hoping to get a debate going about the Disability legislation which raises very serious constitutional issues and has taken away rights of people with disability. Im sympathetic to the causes mentioned above but they are well covered elesewhyere on Indymedia. Could we please stick with the issue??
Many thanks
Apologies for going off-thread, but the Make Poverty History / Live 8 has already been co-opted by the UK government and the aims and objectives at least in the public face presented and other pronouncements have been greatly watered down.
Indeed, I heard there aren't even any bands from Africa playing in the Live 8.
See: Inside The Murky World Of The Uk's Make Poverty History Campaign
by Stuart Hodkinson; Red Pepper; June 28, 2005
http://www.indymedia.ie/newswire.php?story_id=70521&type=otherpress
More than half the wheelchair users with tickets for London's Live 8 concert will be unable to attend, due to insufficient space allocated.
http://news.bbc.co.uk/2/hi/entertainment/4638187.stm
Ray Williams, 47, who works in a chocolate factory, said: "Without trying to be creepy, it's being part of trying to make a change. I'm not political at all but there shouldn't be poverty, there shouldn't be children going without food in the world and we want to be part of the event."
The Blair government have now turned thier attention to the EU budget, for in 2005, they not only will reconstitute the african empire, but also lead Europe.
Its a big time for them, it means cutting funding and assistance to millions of poorer Europeans to ease the fiscal obligations of the British state. & it makes sense. by 2006 there will be no poverty. Sources close to the OED have suggested reverting to older terminology, such as "impecunious".
Ray Williams, 47, who works in a chocolate factory, said: "Without trying to be creepy, it's being part of trying to make a change. I'm not political at all but there shouldn't be *impecunity*, there shouldn't be children going without food in the world and we want to be part of the event."
Interview with Dan Boyle on Disability Issues
http://www.indymedia.ie/newswire.php?story_id=70458
Interview with Kathy Sinnott (August 2004)
http://www.indymedia.ie/newswire.php?story_id=70459
Able Bodies: Parents Are Professionals
http://www.indymedia.ie/newswire.php?story_id=70460
Parent/Teacher Partnership for Children with Special Needs
http://www.indymedia.ie/newswire.php?story_id=70461
HONK to Support the Blind Campaign for Audible Crossings
http://www.indymedia.ie/newswire.php?story_id=70502