Legal status of people with disabilities
2.1 In order to achieve the aims defined by the Commission and to implement its recommendations, the present legal position of people with disabilities under European law and Irish law will require some changes. The law clearly plays an important role in the manner in which people with disabilities are defined and constituted. It is important that it should do so in a positive way and one which is in keeping with the guiding principles of the Commission. Unfortunately, the way in which the law presently defines and constitutes people with disabilities frequently uses archaic and offensive language, relies heavily on a medical concept of disability; and reinforces the dependency and stigma associated with disability.
2.2 It is important that definitions of disability should use language which reflects the right of people with disabilities to be treated as full citizens and to be included in all aspects of society. All definitions of disability should be reviewed and inappropriate and offensive language replaced. In the light of the Commission's view that disability is primarily a social rather than a medical construct, it is inappropriate that definitions of disability should rely solely or mainly on medical definitions or on medical evidence. Finally, definitions of disability should encourage the self-determination and autonomy of people with disabilities rather than reinforce dependency.
2.3 In this chapter, we look at the need for changes in European Union law, in the Irish Constitution, and in existing legislation through the introduction of a Disabilities Act.
European Union Low
2.4 At present there is no reference to disability in the Treaties of the European Union. The European Commission has proposed that in the revision of the European Treaties which is under way in the Inter Governmental Conference (IGC), provisions should be incorporated into the Treaty to ban discrimination of any kind. Such an amendment to the Treaties would require EU institutions to take account of the specific needs of people with disabilities in proposing legislation, EU Programmes and Initiatives. It is important that the Treaties of the European Union should ensure that the EU itself does not discriminate against people with disabilities and a specific amendment to this effect should be adopted in the course of the IGC. Such proposals should be guided by the approach set out in the UN Standard Rules.
This Commission welcomes the recent European Commission Communication on the Equalisation of Opportunities for People with Disabilities which endorses and expands the UN Standards Rules; it also endorses the rights based approach that is taken in this Report. We welcome and fully endorse this Communication from the European Commission and look forward to its adoption.
2.5 The Commission welcomes the fact that the Irish government in its White Paper on Foreign Policy has proposed to seek treaty changes in this area, particularly during the course of its Presidency of the European Union in the second half of 1996. The Commission recommends that the Government should:
- Propose that a Non-Discrimination Clause in relation to, inter alia, disability is included in the revision of the EU Treaties, and
- Ensure that the EU's power to provide for, and to take legislative action in relation to disability issues is clarified.
2.6 The Commission recommends that the Irish Government support the European Commission's resolution, contained in the Communication on Equality of Opportunity for People with Disabilities entitled "A New European Disability Strategy", when it reaches the Council of Ministers.
The Irish Constitution
2.7 The Commission fully supports the majority recommendation of the Review Group on the Constitution that the following should be added to Article 40.1:
"No person shall be unfairly discriminated against, directly or indirectly, on any ground such as sex, race, age, disability, sexual orientation, colour, language, culture, religion, political or other opinion, national, social or ethic origin, membership of the travelling community, property, birth or other status". (Articles 40-44 - Page 230 (Para. 8))
2.8 The Commission endorses the recommendations and conclusions of the Review Group in relation to Personal Rights. (Article 40.3.7" - 2" - Pages 245 - 272)
2.9 The Commission welcomes the Review Group's conclusion that the European Convention on Human Rights and Fundamental Freedoms and other international human rights convention be drawn upon in the area of rights where:
- The right is not expressly protected by the Constitution;
- The standard of protection of such rights is superior to those guaranteed by the Constitution; or
- The wording of a clause of the Constitution protecting such right might be improved and fully supports the Groups' view that this requires by section analysis of the fundamental rights provisions of the Constitution. (Articles 40 - 44 - Page 279)
2.10 The Commission supports the majority recommendation of the Review Group that a Human Rights Commission should be established to maintain an overview of the extent to which human rights are protected at both the constitutional and legal levels, to assess the adequacy of this protection and to make recommendations to Government for the better protection of these rights, as appropriate. The preferred view of the majority of the members of the Review Group is that a Human Rights Commission should have legislative rather than constitutional status and that, if a legislatively-based commission is established and performs well over a number of years, the possibility of affording it constitutional status should be further considered. The Commission endorses this conclusion.
2.11 The Commission sees the right to education as being fundamentally important. Because of this, we believe that amendments in relation to the Article in the Constitution on Education (Article 42) are essential. At present, Article 42 of the Constitution is largely concerned with regulating the control of education rather than providing a substantive right to education. Recent case law has suggested that the courts may be prepared to develop substantive understandings of the right to education from the existing text. However, the position in this regard is unclear and the Commission believes that amendment of the text to make dear the substantive right to education is essential.
2.12 The Commission recommends that Article 42 should be amended to include the following points:
- The right to education.
There is a need to spell out the right to education in substantive terms separately from the control of education. There are many precedents for such wording in, for example, the UN Covenant on Economic, Social and Cultural Rights which Ireland has ratified or in the UNESCO Convention on Discrimination and Education.
- Equality within education.
The right to education should be informed by the core principle of equality. All children (including children with disabilities) should be guaranteed the right to an appropriate education and everything that is necessary to ensure equal access and equal participation in that education.
- The scope of the Article.
The right to education should be stated to apply to all students at primary, secondary and third levels. This would simply recognise existing reality.
Consideration should also be given to the insertion of a clause dealing with the educational rights of adults. Education should be defined broadly to include intellectual, social and physical dimensions.
2.13 The Commission recommends that the All Party Oireachtas Committee examining the Irish Constitution endorse the above and propose that these changes be made in the Constitution.
A Disabilities Act
2.14 The Commission welcomes the Government's commitment to introduce a Disabilities Act which will set out the rights of persons with a disability together with means of redress for those whose rights are denied. This legislation is necessary to give practical effect to the recommendations of the Commission. While the constitutional provisions set out the general principle of equality, a detailed Disabilities Act should set out the practical measures by which this can be achieved.
2.15 Many countries have now adopted specific legislation on the rights of people with disabilities. These include the USA (Americans with Disabilities Act 1990), Australia (Disability Discrimination Act 1992), Italy (Law for the Care, Social Integration and Rights of People with Disabilities 1992) and the UK (Disability Discrimination Act 1995). Such legislation is consistent with and required by Ireland's ratification of international agreements on people with disabilities and human rights.
A Disabilities Act should outlaw all discrimination against people with disabilities. Earlier discrimination legislation aimed to ensure only formal equality and equality of participation. However, we need to go beyond a narrow understanding of non-discrimination measures in order to ensure equal success in participation.
2.16 A Disabilities Act should rule out all discrimination in relation to
- Services provided by public bodies
- Services provided by private bodies
2.17 A Disabilities Act should highlight the following key features:
- A social understanding of the concept of disability rather than an overly medical approach.
- Allowing for difference. The Act must go beyond a formal approach to equality to recognise that true equality requires a recognition and acceptance of difference. Therefore, the Act should require public and private bodies, employers and educators to make 'reasonable accommodation' to meet the specific needs of people with disabilities.
- The core importance of equality. The Disabilities Act should override other general legislation so as to ensure that the principle of equality is achieved.
- Enforcement and access to alternative forms of dispute resolution. Legislation is only as good as its enforcement mechanisms. The Disabilities Act should be enforced by the National Disability Authority (see Chapter 3) and mechanisms for alternative dispute resolution should be established so that individuals can have easy access to mechanisms which can resolve any disputes under the Act.
2.18 The Commission recommends that the Disabilities Act be published and introduced as a matter of immediate priority. Such legislation is absolutely crucial to the strategy for equality set out in this report and without such legislation the strategy for equality cannot succeed.
2.19 The outline principles of a Disabilities Act are contained in Appendix C. This is not presented as definitive, but is nevertheless indicative of the kind of issues which require careful attention when introducing legislation in this area.
Individual Legislative Changes
2.20 We note the Government's commitment in the Programme for Competitiveness and Work to the introduction of an Employment Equality Bill and an Equal Status Bill. Pending the implementation of a comprehensive Disabilities Act, we recommend that the aforementioned principles should be reflected in this more general equality legislation.
2.21 The Commission welcomes the publication of the Employment Equality Bill, 1996, which, for the first time recognises people with disabilities within an inclusive Employment Equality Framework.
2.22 The Commission believes that the Bill should reflect the principles contained within this Report.
2.23 The Commission believes that all provisions within the Bill, insofar as they apply to people with disabilities, should reflect the reality of social gain and should include the principle of reasonable accommodation, in order to facilitate full, fair and equal opportunities for people with disabilities within the areas of training and employment.
2.24 The Commission believes that the definition of disability in the published Bill is wholly inappropriate.
2.25 The Commission regrets that the published Bill does not reflect the submissions made by the Commission to the Minister, prior to publication of the Bill.
2.26 The Commission requests that the Government amend the Bill.
2.27 It would be neither possible nor desirable for the Disabilities Act to contain all the measures relating to people with disabilities. For example, provisions relating to social welfare payments for people with disabilities will be contained in the Social Welfare Acts and health care entitlements will continue to be provided for under the Health Acts. Amendments to, and in some cases the introduction of, legislation in a wide range of areas will be essential in addition to the introduction of the Disabilities Act. A range of amendments to existing legislation including the Juries Act 1976 and the Mental Treatment Act 1945 are also required (see Chapter 15: The Law and The Legal System). These legislative changes are just as essential to the strategy for equality as the introduction of the Disabilities Act itself.
2.28 Individual Departments (including the Departments of Social Welfare, Education, Health and the Environment) should review legislation falling within their remit to ensure that the definitions of disability used (and the practices in relation to the implementation of these definitions) are in accordance with the principles set out by the Commission in this Report.