Submission 2000

Submission to the Department of Justice, Equality and Law Reform:
Proposed Disabilities Bill

Introduction

Comhairle welcomes the consultative process which the Department has initiated before drafting the heads of a Disabilities Bill. We consider that such wide ranging consultation at this stage is a welcome development and we are pleased to contribute to the process.

In this Submission, we set out the areas where we believe a proactive legislative approach is essential for the vindication of the rights of people with disabilities. In doing so we are conscious of the fact that provision for the needs of people with disabilities should as far as possible be made in mainstream legislation. The legislation should reflect and give effect to principles of equality of access, inclusiveness, choice, citizens' rights and integrated service provision.

While comprehensive legislation is important in order to clearly establish rights, to provide a means of redress in cases of discrimination and to reflect the public policy of equal rights for all citizens, it is clear that legislation alone will not address all of the problems faced by people with disabilities. Legislation will only be effective if there are adequate enforcement mechanisms and if there is investment in the relevant services. Awareness programmes are also required to ensure that all service providers, including law enforcers, are aware of the problems faced by people with disabilities.

Citizens frequently experience difficulties in understanding the role of the various enforcement agencies in existence and, therefore, have problems in asserting their rights and seeking redress. This is evidenced by queries to Citizen Information Centres (CICs) around the country which regularly reflect a lack of understanding or confusion about the role of different agencies. This has obvious implications for the effectiveness of legislative provisions for people with disabilities.

Background

The Commission on the Status of People with Disabilities made a number of wide ranging recommendations for the elimination of discrimination against people with disabilities. The Commission was strongly of the view that specific legislation was needed to effectively eradicate such discrimination.

Since the publication of the Commission's Report, there have been significant developments in anti-discrimination legislation and in the organisation of services for people with disabilities. These have been broadly in line with the Commission's recommendations.

The most important developments have been:

• The Employment Equality Act, 1998 came into effect in September 1999.
• The Equal Status Act, 2000 has been passed and will come into effect in Autumn 2000.
• The National Disability Authority has been established.
• Services for people with disabilities have been mainstreamed, e.g., by the establishment of Comhairle and the transfer of the NRB training functions to FAS.

The two Equality Acts outlaw discrimination on various grounds, including disability, in employment and the provision of goods and services. They also provide for the establishment of the enforcement mechanisms - the Equality Authority and the Director of Equality Investigations.

All of the above developments have occurred under the auspices of the Department of Justice, Equality and Law Reform. There have also been significant relevant developments in other areas - both in Ireland and in the EU.

Other Relevant Developments in Ireland

Education

There have been significant developments in the education area. The Education Act, 1998 includes provisions relating to education for children with disabilities. A number of court cases (notably O'Donoghue v Minister for Health (1996) 2 IR 24) have established the right of children with disabilities to avail of education services.

The Act emphasises the rights of children with disabilities and with other special educational needs. It provides that every person concerned with the implementation of the legislation must have regard to a number of objectives including:

• to give practical effect to the constitutional rights of children including children who have a disability or who have other special educational needs, as they relate to education;
• to provide, as far as is practicable and having regard to the resources available, a level and quality of education appropriate to the needs and abilities of the people of the country.

The Minister is obliged, among other things, to ensure that every person living in the State, including people with disabilities and people who have other special educational needs, has available a support service and a level and quality of education appropriate to his/her needs and abilities.

The Act gives the Minister for Education and Science certain functions in respect of funding, including the funding of support services for students with disabilities. It also requires schools to use their available resources to ensure that the educational needs of all students, including those with disabilities, are identified and provided for. It requires a Board of Management to use the resources provided to the school from the moneys provided by the Oireachtas to make reasonable provisions and accommodation for students with disabilities or other special education needs, including, where necessary, alteration of buildings and the provision of appropriate equipment.

The Equal Status Act includes a provision which clarifies that the nominal cost issue does not prejudice or dilute the various provisions in the Education Act, 1998, in relation to children with a disability.

During the 1990's there were a number of court cases dealing with the educational rights of children with disabilities. Effectively, these cases established that children with disabilities - including a child with a severe mental handicap - did have a right to free primary education under Article 42.4 of the constitution and the state is under an obligation to provide for such education.

The recent High Court judgement (Barr/October 2000) asserted that the State's responsibility to provide free primary education for people with disabilities does not stop at the age of 18. This will have significant implications for the way the State fulfils its constitutional obligations to provide adequate education for people with various disabilities.

Building Regulations

New Building Regulations were drawn up in June 2000. They provide that

• new houses commencing on or after 1 January, 2001 must be visitable by people with disabilities; and
• new non-residential buildings - places of employment and leisure (hotels, restaurants, cinemas and so on) must have "adequate" disabled access. The previous regulations required such access to be "reasonable".

Voting

The Electoral Amendment Act, 1996 provided for improved voting arrangements for people with disabilities.

Mental Health

The Mental Health Bill has been published to update the law on the treatment of people with mental illness and to establish their rights in relation to such treatment.

Human Rights

The Human Rights Commission is being established at present. It will have a significant role in ensuring respect for human rights and assisting people in vindicating those rights. The Government has also announced its intention to incorporate the European Convention on Human Rights into Irish domestic law.

Programme for Prosperity and Fairness

The Programme for Prosperity and Fairness sets a number of targets for services for people with disabilities.

National Development Plan

The National Development Plan envisages that all new transport investment will be accessible to people with disabilities.

EU Developments

The Treaty of Amsterdam included a provision (Article 13) dealing with discrimination on a number of grounds, including disability. There is a proposed Directive on Equal Treatment in employment and occupation which will outlaw discrimination on a number of grounds, including disability. A general Directive on race discrimination has been agreed but there are no proposals as of yet to deal with discrimination on the other grounds in areas other than the labour market.

The proposed Directive on Equal Treatment is broadly in line with existing Irish employment equality legislation. When dealing with discrimination on the grounds of disability, the proposed Directive would require that "reasonable accommodation" be made to enable people with disabilities to have access to employment unless this requirement would cause undue hardship. The Irish legislation only requires that accommodation be made if it can be done at "nominal cost". It is not yet clear but it would seem that the EU proposal is likely to result in a greater onus on employers to enable people with disabilities to take up employment. (The "nominal cost" provision resulted from the decision on the constitutionality of the original Employment Equality Bill but EU law would override this constitutional concern).

The proposed Employment Guidelines issued by the EU to the member states for 2001 requires the member states to implement appropriate measures to meet the needs of people with disabilities (among others) as regards integration into the labour market and set national targets for this.

The European Social Fund has been re-directed to focus on removing obstacles to labour market integration in the programming period 2000-2006.

The new EQUAL initiative will encourage new approaches to deal with discrimination in the labour market.

The European Commission has published a Communication which deals with improving access for people with disabilities in the workplace and beyond.

The Commission intends to propose that the year 2003 be declared as the European Year of Disabled Citizens in order to promote society's awareness of disability issues and to provide a catalyst for the introduction of new policies in this regard at all levels of governance.

Relevant Provisions in Other Countries

While there is specific legislation for people with disabilities in some other jurisdictions, the trend is towards overall equality legislation and common procedures for implementing rights under the various anti-discrimination laws. For example, the Disability Discrimination Act, 1995 in the UK deals with discrimination against people with disabilities in the areas of employment and goods and services - in effect, the same areas as are covered by the equality legislation here. From 2004, service providers will have to take reasonable steps to remove, alter, or provide reasonable means of avoiding physical features that make it impossible or unreasonably difficult for disabled people to use a service.

Initially, the rights were enforced through the courts but a new enforcement body - the Disability Rights Commission - was established in April 2000.

In the parts of the UK other than Northern Ireland, there are separate enforcement agencies for the different discrimination grounds (the Race Relations Commission, the Equal Opportunities Commission and the Disability Rights Commission). In Northern Ireland, the formerly separate mechanisms for implementing anti-discrimination legislation in the areas of race, religion, disability and gender have now all been amalgamated in the Equality Commission for Northern Ireland.

We consider that the wider range of the equality legislation and the common enforcement mechanisms for all discriminatory grounds is appropriate.

In the USA, there is separate legislation dealing with disability (Americans with Disabilities Act, 1990), age (the Older Americans Act, 1967, the Age Discrimination in Employment Act, 1975 and others), race and other discriminatory grounds. This legislation is not seen as being sufficiently comprehensive and there is a major debate going on in the USA about the need for an equal rights amendment to the constitution. The broader equal rights approach is seen by proponents as more appropriate than separate provision for the different groups involved.

The Americans with Disabilities Act, 1990 has an interesting over arching provision requiring co-ordination with other relevant enforcement bodies. It is enforced under general Civil Rights legislation. There is separate legislation dealing with education for people with disabilities, with technology assistance, telecommunications accessibility, architectural barriers and employment.

Irish Equality Legislation

Disability groups have identified a number of defects in the equality legislation, including the definition of discrimination used. The Employment Equality Act is only in operation for a year. There is an in-built requirement to review when it is in operation for 2 years (in September 2001). The Equal Status Act is not yet in effect.

There have been extensive criticisms of the Equal Status Act because it does not explicitly contain a non-discriminatory obligation on public service providers. The Minister for Justice, Equality and Law Reform has argued that public service providers are covered by the obligation on all service providers. Comhairle accepts that the Minister's interpretation of the legislation is correct but we consider that such obligations should always be explicit even if they involve repetition.

We consider that it is regrettable that the equality legislation does not include a positive obligation on public bodies to promote equality.

In Northern Ireland, the Northern Ireland Act, 1998 (this is the Act dealing with devolved government in Northern Ireland) includes a positive obligation on public authorities to promote equality of opportunity. All such authorities have to draw up equality plans which must be approved by the Equality Commission.

We consider that such an obligation should be introduced in Ireland. This should be done in order to promote equality for everyone, including people with disabilities. It could be done as part of the incorporation of the European Convention on Human Rights into Irish law.

Why a Disabilities Bill?

The Commission on the Status of People with Disabilities envisaged that a Disabilities Act would set out the rights of people with disabilities together with the means of redress for those whose rights are denied. This recommendation was made in the context of a range of recommendations for legal change, including constitutional change. For example, the Commission recommended that the Constitution be amended to provide for the right to education and equality within education. The Disabilities Act was seen as ruling out discrimination in relation to:

• services provided by public bodies;
• services provided by private bodies;
• employment;
• education.

The Commission set out a detailed, but not exhaustive, set of principles for the proposed Disabilities Act. They envisaged that the Act would be enforced by the National Disability Authority.

The Commission did not envisage that all the rights of people with disabilities would be covered by the Disabilities Act. For example, they considered that income maintenance provisions would continue to come under the Social Welfare Acts and health services under the Health Acts.

The developments which have occurred since the publication of the Commission's report will evidently need to be taken into account in the drafting of a Disabilities Bill. Indeed, a question has been raised as to whether a separate Disabilities Act is now necessary and whether the provisions that would be included in such an Act might not be better provided for in the relevant mainstream legislation.

Basic Principles of Legislation

• The Disabilities Act should be a definitive statement/source document in respect of the needs of people with disabilities.
  
• The Act should make provision for legislative changes which would fully vindicate the rights of people with disabilities and complement relevant mainstream legislation.
  
• The Act should provide a legislative framework for ensuring that general legislation (current and future) is implemented in a manner suitable for people with disabilities. In particular, it should provide for enforcement of existing legislation, policy coherence and ensuring that all non specific legislative provisions are implemented - for example, that people with disabilities are actually able to exercise their right to vote.
• The principle of mainstreaming of services for people with disabilities has now been established and is being implemented. This is a key consideration in the legislative area.
  
• Disability issues should be dealt with in the context of civil and human rights and equality and not as separate and discrete issues. Separate treatment serves to underpin difference rather than to promote equality and integration.
  
• Service providers should beobliged to:
  
  • take reasonable steps to change practices, policies or procedures which make it impossible or unreasonably difficult for disabled people to use a service;
  • provide auxiliary aids or services which would enable disabled people to use a service; and
  • overcome physical barriers by providing a service by a reasonable alternative method.

• Legislative provision should aim to bridge the gap between people with disabilities who experience needs and problems as a whole and the wide and disparate range of administrative arrangements for the delivery of services. Provision should be made for appropriate integration and co-ordination between Government departments and statutory agencies which administer services for people with disabilities.
  
• Clear and efficient enforcement mechanisms are required which are easily accessible and understandable by the public in order to assert their legal rights in the first instance and to seek redress if required.

Proposals for Legislative Reform

As already stated, we consider that a proactive legislative approach is essential for the vindication of the rights of people with disabilities. Here we propose a series of legislative changes which would help to vindicate the rights of people with disabilities and for which provision should be made in the Disability Act or, alternatively, in appropriate amendments to the relevant Acts. Below, we outline the areas in which legislative change is needed.

Exercising democratic rights

We consider that the Electoral Acts should be amended to ensure that people with disabilities are able to exercise their right to vote. Improvements were made in 1997 (Electoral Amendment Act, 1996) but further improvements are necessary. People with disabilities should be automatically entitled to a postal vote and should be able to choose to exercise their vote in person if they wish. The special voters list should be abolished and the people currently on the list should simply be registered in the normal way. Patients in psychiatric hospitals should be able to register there and not be confined to their home address, where they may be unable to exercise their vote.

Access to Justice

The Courts Acts should provide that the courts are physically accessible and that essential services for people with disabilities - sign language services, loop systems, etc. -- are available where required.

In the UK, the Youth Justice and Criminal Evidence Act, 1999 contains new measures for helping crime victims and witnesses who may have difficulties in giving evidence, or whose evidence is not taken seriously on account of their learning difficulty or speech impairment, with the result that they are denied access to justice. We consider that similar legislation should be introduced in Ireland in order to ensure that people with disabilities have equal access to justice.

In the UK at present, there is a programme of disability awareness training for judges. Such a programme should be introduced here - no legislation is required.

Service on Juries

People with certain physical or mental disabilities are excluded from serving on juries. The Juries Acts should be amended to remove discrimination against people with disabilities. The Juries Acts also discriminate against older people and this should also be addressed.

At present, the common law does not appear to allow people other than jurors to be present in the jury room. This means that people who need personal assistants cannot act as jurors. This law should be abolished.

Access to Public Services

The Commission on the Status of People with Disabilities identified shortcomings in the Building Regulations (Part M Access for Disabled People). The June 2000 updating of these regulations should improve access but there is still no overall legal obligation to make public offices accessible to people with disabilities.

We consider that legislation should be introduced on access to public services for all citizens. This should not just deal with physical access but also with intellectual access. This would require all public bodies to ensure that their buildings are physically accessible within a specified period. It would also require that all services are accessible in the sense that people can readily understand the criteria for eligibility, that the laws, regulations and explanatory material are available in understandable language and that they are available in an accessible manner to people with disabilities e.g. all public service websites should be required to be accessible.

Human Rights Bill

The Government has announced its intention to incorporate the European Convention on Human Rights (ECHR) into domestic legislation. It has not yet been decided how exactly this will be done as there are a number of possible approaches. The ECHR is already part of domestic law in Northern Ireland and Scotland and will be in other parts of the UK in October 2000.

We consider that incorporating the ECHR into domestic legislation will make the enforcement of rights easier for all citizens, including people with disabilities. We consider that the Human Rights Act should include a provision requirement for all public authorities to not only respect human rights but to positively promote civil and human rights and equality.

Transport

The provisions in the National Development Plan in relation to accessibility of new transport investment is welcome. The Equal Status Act allows for the making of regulations on access to public transport. We consider that legislation is needed to ensure that all transport is accessible and all people with disabilities are entitled to use it. This should be done in the forthcoming legislation dealing with the re-organisation and diversification of public transport.

Health and Community Services

At present, health boards are obliged to provide certain services to eligible people e.g. GP and hospital services. In the community care area, in general, health boards are not statutorily obliged to provide the full range of services but they may do so. This absence of an obligation to provide core services has been criticised by, among others, the National Council on Ageing and Older People.

We consider that there should be a statutory obligation to provide core community care services but this should not be confined to people with disabilities. This obligation should be in the Health Acts. The Commission on the Status of People with Disabilities identified rights to home help, personal assistance, and residential respite care as essential for people with disabilities. The Health Acts should be amended to provide for the right to core community services for all people who need them.

Role of the Enforcement Agencies

At present, the Equality Authority and the Director of Equality Investigations enforce the equality legislation. The Human Rights Commission, when established, will have a general implementing role in the human rights area which may well include taking actions on behalf of people with disabilities. The mainstream legislative provisions mentioned above all have their own implementing mechanisms. The National Disability Authority has an overall monitoring role in relation to services for people with disabilities.

There is, however, a need for better co-ordination between the different enforcement agencies in order to facilitate easier access by individual citizens to the appropriate agency or agencies. Strategies should be put in place for this purpose. .

Dissemination of Information

Comhairle is concerned that, despite the various legislative provisions and enforcement mechanisms that are currently in place, individual citizens with disabilities seeking to assert their rights may have great difficulty in negotiating their way around the system. Future legislation, and particularly the Disabilities Act, should address this issue by making provision as far as possible for greater clarity in respect of the role and functions of the various enforcement agencies.

There is a need for clear and accessible information about the various legislative provisions, about the role of the various enforcement agencies and about the mechanisms available to citizens to assert rights and seek redress.