Seanad Éireann debate -
Tuesday, 31 May 2005

Vol. 180 No. 17

Disability Bill 2004: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister of State at the Department of Justice, Equality and Law Reform (Mr. Fahey)

I am pleased as Minister of State with responsibility for equality to bring before the Seanad this important legislation. This Bill, once enacted, will significantly advance the position of people with disabilities and will be instrumental in sustaining progress in the longer term. The Bill is one element of the national disability strategy, launched by the Taoiseach on 21 September 2004. The strategy has three other elements, namely, the Comhairle (Amendment) Bill 2004, six outline sectoral plans and a multi-annual investment programme for high priority disability support services.

The strategy represents a commitment by Government to drive forward a significant evolution in policy and provision for people with disabilities, which has gathered momentum in recent years. Among the established building blocks are the strong anti-discrimination framework of employment equality and equal status legislation, the policy of mainstreaming services for people with disabilities and the significant increase in investment in disability services in recent years. This framework is supported by infrastructure comprising the Equality Authority, the Equality Tribunal, the National Disability Authority and Comhairle which together have had a positive influence on equality, service development and delivery, and on practices and attitudes generally. These milestones set the context for the national disability strategy and the Bill.

An important aspect of equal access is education and the support of children with disabilities to fulfil their potential through education. The Education for Persons with Special Educational Needs Act 2004 is another important development which has put in place a strong framework for the transformation of special needs education policy. Since last July, the Act creates rights to an educational assessment for children with special educational needs, to the development of an individual education plan and to the delivery of educational services on foot of that plan.

Side by side with equality and mainstream policy development, there has been a significant increase in spending on disability specific services. This year, some €2.9 billion, representing almost 7.5% of gross current public expenditure on services, will be spent in this way. This figure does not take account of income support and other services provided through the Department of Social and Family Affairs. It does not take account of the fact that many people with a disability participate in, or benefit from, mainstream public service programmes and services. The figure of €2.9 billion compares with expenditure of just under €0.8 billion in 1997 — a 3.5 fold increase in eight years.

Building on this successful experience, the Government has guaranteed a multi-annual investment programme totalling over €900 million, comprising capital and current funding for high priority disability support services, over the years 2006-09. The funding focuses mainly on the health and education sectors and will enhance service levels where they are most needed. The multi-annual approach is an unprecedented initiative where spending on services is concerned. Generally, funding to run all Government services is allocated on a year-to-year basis, taking into account existing commitments and expected revenue.

The Bill is unique in the legislation that comes before this House. It seeks to provide for services that come within the ambit of a wide variety of Departments and State agencies. Knowing the cross-departmental nature of the work envisaged, the Government decided at an early stage to refer the process of overseeing the preparation of the Bill and the national disability strategy to the Cabinet committee on social inclusion.

The committee, which comprised 11 Ministers as well as concerned Ministers of State met regularly for this purpose and its work has been supported by a cross-departmental group of senior officials. In the course of its deliberations, the committee oversaw development of the scope and framework for the Bill and took decisions on the way forward on key policy issues.

The published Bill was the subject of extensive consultations with interest groups. Following a request from my Department in April 2002, the National Disability Authority brought together a group representative of people with disabilities, their families and carers and service providers in the sector. The Disability Legislation Consultation Group — the DLCG — provided meaningful dialogue at national level, within the sector and with Government.

Senior officials and Ministers have had regular contact with the DLCG over the past two and a half years. These meetings, together with the DLCG document Equal Citizens, have allowed the committee and the senior officials working with it to obtain a detailed understanding of the issues of concern to the DLCG in regard to the legislation.

The Bill was drafted to take account of proposals in Equal Citizens such as a right to an independent assessment of need, transparency as to related services, a right of redress, mainstream service provision and the 3% target for the employment of people with disabilities. Senior officials presented an outline of the Bill to the DLCG in early 2004. The shape of the Bill, as initiated, and the national disability strategy reflect several important elements sought by the DLCG and agreed by the Cabinet committee.

The Bill contains no clause to protect the State against litigation for the breach of statutory duty, which was the case with the much-discussed section 47 in the Disability Bill 2001 and was unacceptable to disability groups. The absence of any such provision represents a fundamental shift in Government policy designed to accommodate widely held concerns.

Another major concern of the DLCG has been that the Bill would be supported by a multi-annual funding package for disability services. The Government has guaranteed an unprecedented multi-annual investment programme providing significant additional funding up to and including 2009, on top of funding to be provided through the annual Estimates process, which shows the special concern of Government for disability issues and is evidence of the Government's strong, positive response to this DLCG proposal.

The Bill as initiated, also reflects a DLCG proposal that a sixth sectoral plan dealing with training and employment issues be prepared. It also ensures that liaison officers will undertake a periodic review of each individual's service statement to ensure that its contents are being satisfactorily implemented. Since the Bill was published I have met the DLCG to discuss its views and the ten key areas of concern they have identified.

Arising from those meetings and consultations with the relevant Departments and the Cabinet committee, I accommodated changes to the Bill to address the group's concerns to the greatest extent possible. These changes were effected by way of Government amendments to the Bill during its passage through the Dáil. They provide for the following: expanding the definition of substantial restriction to ensure certainty in the inclusion of persons with mental health impairments and children needing early intervention services to ameliorate a disability; building in a requirement that the operation of the Bill be reviewed within five years; simplifying the complaints mechanism by removing an option of the Health Service Executive or education service provider to refuse to implement a recommendation of a complaints officer; broadening the sectoral plan of the Department of the Environment, Heritage and Local Government to include housing and accommodation and for co-operation between the relevant authorities on such matters; providing an additional ground for complaint where the HSE fails to commence or complete an assessment within the timescales required; requiring public bodies to make published documents available in easy to read formats, as appropriate, for persons with intellectual disabilities; and allowing Ministers to make orders requiring public bodies to provide work experience contracts for persons with disabilities.

The DLCG welcomed the changes made to the Bill in the Dáil but later outlined five key issues upon which it sought further consideration. I met with the DLCG to hear its concerns and to outline the position on its proposals. The Taoiseach subsequently wrote to them setting out the Government's policy on each of the five points.

The DLCG sought a right to an assessment that would not be resource dependent. The Bill provides a right to an independent assessment to a benchmark standard with access to redress. The assessment will be undertaken without regard to the cost of or the capacity to provide any service identified in the assessment. The assessment process, however, will ultimately be resource dependent. In practice, the Government is confident that resources will not normally restrict the assessment process in view of the multi-annual investment programme. The DLCG sought that the Bill would require the provision of all assessed service needs within a reasonable and agreed timeframe and that there would be clear protection for disability-specific resources. The Bill will impose significant new requirements on Ministers and the Health Service Executive in regard to transparency of funding and service provision. It also places a statutory obligation on the Health Service Executive to collect aggregate data on assessed needs and on available services for service planning purposes.

The DLCG wants every Department to prepare a sectoral plan. The Bill provides for six sectoral plans dealing with those services which involve medium-term investment either to develop disability-specific supports or to underpin infrastructural change. Other public bodies are already obliged under the Bill to make their services accessible by next year.

The DLCG also sought that disability proofing be placed on a statutory footing. The Government is satisfied that the Bill already creates significant new requirements for public bodies in terms of accessibility of buildings, services and information and that delivery on these provisions will in itself represent significant progress.

Some members of the DLCG left the group because the Government could not agree to change the Bill to accommodate the five points outlined above. The Taoiseach met with the remaining members of the DLCG on 25 May 2005 and, while restating the Government's position on the five points, he agreed to consider a number of further issues of concern to the DLCG, including the following: the need to provide for a face to face interview to review each applicant's service statement; additional powers for the complaints officer, which would allow him or her to recommend the timing of the service or assessment; to review concerns about the wording of section 5(4); the publication of the report on aggregate needs prepared by the Health Service Executive under section 13; the preparation of progress reports by the six sectoral plan Departments at least every three years;

Ms O’Rourke

It was five in the original——

Mr. Fahey

This is a separate issue. It involves the review of the sectoral plans.

An Cathaoirleach

The Minister of State without interruption please.

Mr. Fahey

——changing Cabinet procedures so that legislation and policy proposals submitted to Government would take account of the impact on people with disabilities; and the issue of audio-description which was raised in regard to the broadcasting provisions in the Bill. I hope to be in a position to bring forward a number of Government amendments to address as many of these proposals, as is possible, following detailed examination.

A main issue for some disability groups has been the question of justiciable social rights. There are divergent views about access to the courts as the primary means of vindicating these rights. One view is that ultimate redress in the courts is fundamental to the concept of social rights delivery. On the other hand, social service provision for any one group must be balanced with the valid and competing needs of other service users. The statute-based rights and redress mechanisms in the Bill find their basis in this reality. The Bill provides a right to an independent assessment of need, a right to a service statement — the content of which will have regard to resource availability, eligibility and other factors — and a right of redress and enforcement. The Bill provides an easily accessible statute-based means of redress in regard to assessment and services.

I have listened, time and time again, to calls for the Bill to be rights-based — in other words that it should give justiciable rights to services. There appears to be a belief this will guarantee services to meet needs or that case law will drive service delivery. The simple fact is that it will not, at least not in the interests of people with disabilities generally. Already in the education area, for every €1 given in settlement of legal cases paid out by the Department of Education and Science, €4 went to pay the fees of members of the legal profession. Aside from the legal costs, a court case can cause delay and hardship for a person with disability and his or her family. The Bill, on the other hand, establishes a fair, person-centred system for complaint and appeal that will give real results relatively quickly and informally.

A rights-based approach to service provision on the lines sought by interest groups, and indeed the Opposition in the Dáil, is not evident in other developed common law countries. If we look at the work of respected independent authorities such as NESC, we see a recognition of the complexity of the issue, the need to understand the relationship between rights and standards and the fact that a focus on legal rights cannot always deliver in the simple way that is claimed. In its recently published report, NESC reiterates the complexities involved. In looking at socio-economic rights, NESC refers to well functioning systems being able to deliver rights and states that, "stronger institutional and policy capabilities, which are in part the fruit of an increase in resources, ...enrich the content and meaning of rights". The Government has taken the practical approach by increasing investment to build capacity, so the rights to assessment and services contained in the Bill, and the quasi-judicial redress process that underpins them, can be delivered in practice.

The national disability strategy including the Bill and the multi-annual investment programme provide a strong basis for this planned approach which can respond to real needs. It enables the Government to fulfil its political duty to use available resources to the benefit of people with disabilities and balance the funding needs of other services and the rights and expectations of those who depend on them. Such decisions are proper to the political arena and are not matters primarily for case law.

I am the first to admit there is a historical deficit in regard to disability and there are limitations in current services. I have listened to criticisms of the Bill because service provision is subject to resource availability. In the real world, all services are subject to resource availability — that is the harsh reality and it is not unique to Ireland. However, that does not mean we ignore the historic deficits or shortfalls in disability services. What it means is that we must be practical in facing up to our responsibilities and we are doing that. We are putting in place a firm financial programme and a national disability strategy to establish a sound base for service provision. Under the Bill, Ministers, for the first time, will make an explicit determination of the amount of funding they will allocate each year for the purposes of the Bill.

In drawing up the legislation, regard has been had to benchmarks internationally. The ESRI report entitled On Rights-Based Services for People with Disabilities was commissioned by my Department in 2003 to stimulate debate and gather factual information about the nature of disability legislation in other common law countries. The research shows that the commonalities in legislation internationally tend to be confined to anti-discrimination legislation. There is little consistency as to the kind of legislation, if any, underpinning disability service provision. The research dispels many assumptions and shows wide variation in the way disability-specific service provision is treated in the countries surveyed — Great Britain, New Zealand, Australia, the US, Canada and Sweden. The Bill compares well with legislation for disability service provision elsewhere and in common with that legislation establishes a link between service provision and resource availability.

The Disability Bill is a positive action measure comprising a number of distinct initiatives, which, taken together, will lead over time to a sustained improvement in the lives of people with disabilities. The initiatives in Part 2 deal with the individual health and education needs of each person with a disability. The initiatives in Parts 3 and 5 place statutory obligations on public bodies to support access for people with disabilities to mainstream public services and to public service employment. Parts 4, 6 and 7 deal with genetic testing, the establishment of a centre for excellence in universal design and miscellaneous matters.

I will outline the main provisions of the Bill. Provisions of particular importance include the definition of disability and section 5. The definition of "disability" in section 2 is in line with the definition in the National Disability Authority Act 1999. Section 5 is a novel provision which makes specific arrangements for Ministers to earmark funding for the purpose of implementing the provisions of the legislation. There is also provision for a review of the operation of the Bill no later than five years after commencement.

Part 2 establishes a right to an independent assessment of need, an individual service statement and redress. Section 7 defines the key terms used in this part. The definition of "disability" for the purposes of this part covers persons whose disability is likely to be permanent, results in significant difficulty communicating, learning, moving or significantly disordered thought processes and gives rise to a need for services on a continual basis. A "health service" is defined to include a "personal social service" and "education service" relates to the education of persons over 18 in a recognised school, or a programme of education, training or instruction specified by the Minister for Education and Science. The section assigns additional functions to the National Council for Special Education relating to the education of persons over 18 years. It also gives HSE officials access to the education appeals board where the council fails to comply with a request for co-operation in preparing a service statement.

Sections 8 to 10, inclusive, deal with the assessment of need. Assessment officers will be appointed by the executive and will be independent in the performance of their functions. The assessment will cover health and education services. A person who considers that he or she may have a disability, may apply to a health board for an assessment of need and the assessment will be commenced within three months of the date of the application. Each assessment of need will involve the applicant in the process and result in an assessment report which will specify an indicative date for review. Services will be prioritised in the assessment report and optimal timescales for delivery will be set out. Each assessment of need will be independent in three respects. First, assessment officers will be statutorily independent, second, the assessment itself will be undertaken without regard to existing service levels or related cost considerations and, third, the assessment will take place in accordance with standards determined by a new independent body, the Health Information and Quality Authority, HIQA.

Section 11 deals with the individual service statements. Liaison officers will be appointed in the HSE as a key point of contact for the preparation of service statements. Following assessment, a liaison officer will prepare a service statement for the person concerned. In preparing the service statement, the legislation requires the officer to have regard to the HSE's budget for that year and other criteria, including the eligibility of the person for the service and the practicability of providing the service. Otherwise, the service statement will seek to reflect the priorities and timescales for the health and education services identified in the assessment report.

In an effort to aid service co-ordination, section 12 specifies that liaison officers, with the consent of the person concerned, will contact service providers outside the health and education sectors and give them any information needed to assist access to services, other than those provided for in the assessment of need. Section 13 requires the HSE to keep records as an aid to service planning. The HSE must compile a report each year for the Minister for Health and Children of the services being provided and the aggregate needs identified in assessments, including the priority of these needs, the optimal time scales for delivery and the estimated cost of such provision.

Part 2 provides for three stages of redress, complaint, appeal and enforcement. Section 14 allows for the making of a complaint relating to an assessment or service. Section 15 requires the HSE to appoint complaints officers who will be statutorily independent in the performance of their functions. Following examination of a complaint, the complaints officer may seek to resolve it informally. If this is not possible, he or she will investigate the complaint, issue findings and make a recommendation for implementation by the HSE or head of the education service provider, where appropriate.

Sections 16 to 20, inclusive, and the Schedule to the Bill deal with the appeals officer and appeals. The appeals officer will occupy an independent statutory office and will be appointed by the Minister for Health and Children. The officer will hear appeals and will have staff to whom functions can be delegated and a budget to undertake the work. The officer will make an annual report to the Minister for Health and Children in respect of his or her functions. A copy of the report will be laid before both Houses of the Oireachtas. Under sections 18 and 23, the appeals officer is given substantial powers to call witnesses, obtain documents, enter premises and ultimately to secure a search warrant from the District Court, if necessary.

A recommendation of a complaints officer can be appealed to the appeals officer by the applicant, the HSE or head of an education service provider. He or she will be required to take account of the same considerations as the complaints officer in coming to a decision, such as resources, eligibility and practicability considerations. Section 20 provides that a determination of the appeals officer will be final and not referable to the courts save on a point of law.

Section 18 provides that the appeals officer may arrange for mediation, unless either party to the appeal objects, if he or she considers that the issue could be resolved in this way. Unresolved cases may be considered again in the appeals process. A mediation settlement may be enforced in the same way as a determination of the appeals officer. As a last resort, where a determination of the appeals officer is not implemented, section 22 allows for an application to the Circuit Court for an enforcement notice against the HSE or education service provider which has failed to implement it. Certain recommendations of the complaints officer may also be enforced in this way.

Section 25 imposes a duty on public bodies to commence a rolling programme of refurbishment to make public buildings accessible. Sections 26 to 29, inclusive, are key sections which require public bodies to mainstream service provision for people with disabilities. Section 30 deals with codes of practice to be prepared by the NDA. Sections 31 to 37, inclusive, require the development of six sectoral plans by the Ministers for Health and Children, Social and Family Affairs, Transport, the Environment, Heritage and Local Government, Communications, Marine and Natural Resources and Enterprise, Trade and Employment. A duty is placed on the Minister responsible for each of the sectors to prepare, in accordance with a general framework, a plan setting out the disability related services and positive action measures he or she is committed to implementing.

Draft sectoral plans have already been published and are at present the subject of a consultation process being facilitated by the NDA at regional information meetings. The final plans will be submitted to the Oireachtas for approval within one year of commencement of the legislation. Under section 38, individuals can make complaints about a failure by a public body to comply with a duty in respect of mainstream service provision under Part 3.

Section 39 requires every public body to designate inquiry officers to investigate any such complaints. Sectoral plans will also specify the complaints procedures that apply in each of the six plans. The decision of the inquiry officer or the complaints officer under a sectoral plan can be referred to the Ombudsman. Section 40 amends the Ombudsman Act 1980 to give the Ombudsman specific powers for this purpose.

Part 4 seeks to safeguard access to employment, insurance and mortgages for people who may be affected by certain genetic conditions, such as cystic fibrosis and Huntington's disease. The part restricts the use of genetic data in general, especially for employment purposes and outlaws its use for insurance purposes. The use of family history information for insurance purposes may be restricted by regulation. The provisions of this part will be subject to review commencing not later than 1 January 2014.

Part 5 establishes a statutory basis for positive action measures to support the employment of people with disabilities in the public service. It allows each Minister to specify targets for the employment of people with disabilities in their sector, pending the specification of which, the existing 3% employment target will apply. Implementation of the measures will be monitored by sectoral monitoring committees and the National Disability Authority will report to each Minister about compliance in their sector.

Part 6 provides for the establishment of a new centre of excellence in universal design within the NDA. The establishment of the centre is a commitment in the programme for Government and responds to international obligations on universal design and e-accessibility. Section 52 amends the National Disability Authority Act 1999 to take account of its new role. Universal design relates to the design and composition of buildings, products and systems so that they can be accessed by everyone, to the greatest extent practicable, irrespective of any particular physical or mental feature, ability or disability. The purpose of the centre will be to achieve excellence in universal design through the development and promulgation of standards. The centre will have a particular role in pursuing this objective regarding electronic systems and in the promotion of universal design in courses of training for architects, engineers and other persons who design and build the built environment. Part 7 deals with a range of issues including rules for broadcasting to facilitate access by people with sensory impairments, offences, changes to the size of the NDA board and related matters, repeals and exclusions.

The Schedule sets out the terms and conditions of employment of the appeals officer to be appointed by the Minister for Health and Children under Part 2. It deals with such matters as selection by open competitive process, term of appointment, staff to be civil servants, accounting matters and delegation of functions.

I thank the Senators present for their attention. The debate in the Dáil was very informed with many good points made by the Opposition. On Committee Stage we incorporated many of those points. One common theme clearly running through much of the Opposition contribution was the need for judiciable rights. In the five years since this process commenced the Government has been clear and adamant that it is not possible to have legislation giving judiciable rights in the courts. As I have already said judiciable rights are not available in any country with the one possible exception of South Africa. This will not change during the debate in the Seanad.

I appeal to Senators to recognise that we have gone past the debate on judiciable rights. I am anxious to listen carefully to the points made here and to make amendments where possible as a result of proposals made. I would like to conduct the debate in the Seanad in that spirit. As a former Member of this House, I recognise the important role the Seanad has to play and the important contribution Members of this House have made in improving legislation. I again emphasise that I am anxious to conduce the debate in that spirit. I commend the Bill to the House.

Ms Terry

I welcome the Minister of State to the House. I also welcome the opportunity to at last deal with this Bill, for which we have waited a long time. While I recognise that some improvements have been made in the Dáil for which I thank the Minister of State, the Bill still falls short of what the majority if not all of the disability groups have called for. This is the basis from which I must start.

I attended nearly all of the meetings of the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights when the various disability groups attended to give their presentations and views on the Bill. One after another they expressed their dissatisfaction with it. While I accept some small improvements have been made, one must note, as the Minister of State mentioned, some of those groups have withdrawn from the DLCG. I wish to read a statement made by NAMHI as follows:

Two leading national representative organisations of people with disabilities have withdrawn their co-operation with government on the Disability Bill 2004. We have no choice but to pursue the fight for a Bill which respects the rights of people with disabilities, as promised in the programme for government, independently of the Disability Legislation Consultation Group (DLCG). The Forum for People With Disabilities, the National Parents and Siblings Alliance and the National Association for People with an Intellectual Disability (NAMHI) have ended co-operation with the Bill.

Those groups, for which I have great respect, did not do so lightly. We must recognise that groups representing many people are still very dissatisfied with the Bill. These groups are dissatisfied as they are fighting for people who have been marginalised for years by many Governments. I do not place all the blame on this Government. However, Fianna Fáil has been in Government for many more years than any other party and I must lay more blame with it for not having provided us with stronger legislation.

The Bill as presented is flawed. It is very complex and complicated without joined-up thinking. Too many Departments and Ministers are involved, which makes for bad legislation. It is convoluted and poorly written, not from a legislative but a plain English viewpoint. It should contain English that the ordinary person on the street can understand.

The Bill is definitely resource-driven while those affected by its provisions start from a very low base. In seeking rights and services for able-bodied people, we start from a position of being able to access buildings, perhaps being able to read and write and being independent. In this debate we are discussing people who are not at that stage. Our obligation is to ensure that they are brought up to be on a level playing field in so far as they are capable of doing so.

I will refer to some of my concerns, which I will address on Committee Stage. I am looking forward to a good debate at that stage and I hope the Minister of State will be in a position to adopt some of the amendments I will table. Many of these issues have been thrashed out in the Dáil and I am hoping that with further time for reflection we will be able to gain some success here.

The definition of the term "disability" is restrictive relative to that used in the Equal Status Act and the Education for Persons with Special Educational Needs Act. It excludes people with episodic needs and those who require early intervention measures, resulting in more people being excluded than included. This should be inclusive legislation. It must not set out legislation that from the outset will exclude certain people. I suggest that the right to an assessment is open to interpretation. The Bill states that assessment must be carried out as if there were no resource constraints. However, the assessment process is itself resource-constrained, and meeting any need for services arising from the assessment depends on the availability of resources. Assessment officers are appointed by the Health Service Executive, which, as we know, cannot go over budget and must take account of available resources. Therefore, once again, when we hit bad times, the marginalised will be those hit. That is not acceptable. When everyone else has been looked after, those with disabilities may or may not get something left over.

One question that comes to mind when discussing the assessments is whether the Minister has worked out how many assessment officers will be needed. Will their number also be constrained by resources? Do we have the necessary trained assessment officers in the country? How long will it take to put them in place? Those are important questions to which I would like some answers.

The Minister mentioned the appeals officers being independent. How can they be so if they are governed by or answerable to the Minister for Health and Children? They are employed by the Health Service Executive and are not independent. They should be under the auspices of the Department of Justice, Equality and Law Reform to be totally independent. They cannot be employed by the Health Service Executive and report to it.

Mr. Fahey

They are statutorily independent, as in the case of the Inspector of Mental Hospitals.

Ms Terry

I will be tabling an amendment to make them more independent by placing them under the authority of the Department of Justice, Equality and Law Reform.

The Bill has many layers of bureaucracy. I would like to know how much it will cost to set up all the layers of personnel required. Will more money be spent on setting up the administration and employing the staff for it? If we are to do it properly, it must be in place, but I want to ensure we have the available resources.

The services statement will only be effective if there are resources to implement it. Multi-annual funding means nothing if it is not sufficient to meet the demand. In this Bill, no deadline is set down by which services statement needs must be met. I am concerned about what will happen regarding those needs that are not met because of resource constraints. A timeframe should be set out for the delivery of the outstanding needs. This is an essential matter. If a service statement outlines that certain needs are to be met but the resources are not there, we must ensure a timeframe is provided for their ultimate delivery.

The term "ring-fencing" has been used a great deal when discussing the Disability Bill 2004. This Bill makes no commitment to ring-fencing disability-specific resources. If times get tough, people with disabilities will once again be marginalised. I will probably be reminded by Members on the Government side that the Minister has said that €2.9 billion has been provided for disability-specific services this year. However, that is from a budget of €38 billion for public services. We are not talking about a great deal of money as a proportion of the overall budget. It is a matter of enabling people to be independent and make a contribution to society, something that will ultimately pay back into the economy and society. We are also talking about people who may never be able to get out into the workplace but who should be entitled to reach their potential with the necessary supports and services. They should be able to live with dignity.

Disability-proofing and promoting the equality of policy and planning must be provided for by all Departments, public bodies and publicly-funded bodies. It must be demonstrated in all aspects of their work, including planning, budgeting, implementation and evaluation cycles. They should be accountable for the delivery of the services, something that is absent from the legislation. I understand that the Taoiseach agreed at a recent meeting with the DLCG that he would examine disability-proofing. I therefore hope the Minister will be able to take that on board when I table an amendment on Committee Stage so we can ensure such proofing and the promotion of equality of policy and planning in all Departments.

I remind the Minister that the Fianna Fáil-Progressive Democrats programme for Government of 1997, An Action Programme for the Millennium, stated: "We are committed to ensuring that disability is placed where it belongs, on the agenda of every Government Department and every public body." The speeches by the Taoiseach and Tánaiste at the launch of the national disability strategy were uncompromising in stating that they believed the Bill was built on the foundation of an agreed Government policy to mainstream public services for people with disabilities.

The Disability Federation of Ireland states:

As a result of the clear commitment to mainstreaming in the Programme for Government (1997), the emphasis placed on the issue in the DLCG's report Equal Citizen and the centrality of mainstreaming disability services in the Taoiseachs and the Tánaiste speeches, DFI were dismayed at the weakness of the measures in the Disability Bill to legislate for the inclusion of people with disabilities in public services. DFI had anticipated that the Bill would have comprehensively addressed the issue that people with disabilities are equal members of the public and that the public service infrastructure is equally for all members of the public.

The Bill does not promote the inclusion of people with disabilities in all public policies and services. The Bill does not oblige all Government Departments, public bodies or publicly funded bodies/services to ensure that all services provided are available on an equal basis to people with disabilities. The six draft sectoral plans by different departments are very vague and general and do not include many important issues. Most importantly the Bill fails to oblige these statutory bodies to ensure the inclusion of people with disabilities in the development of their policies, plans, programmes and services.

I will be tabling an amendment so that we can ensure that disability-proofing is provided for in each Department. If we are serious about this legislation, that is how we must proceed. Legislation must include everyone in society, and we must not set out to exclude any individual or group. Ensuring the delivery of services to people with disabilities would be a valuable vindication of people's human rights, and disability-proofing would ensure that. Regarding the appointment of a disability commissioner, I believe it necessary that we provide for one in the legislation. To enhance the status of people with disability and assist in protecting their rights to equality in public services, the position of disability commissioner should be created. This position should have the same status as An Coimisinéir Teanga and such an officer would give the Oireachtas and the disability sector a strong basis for ongoing engagement with Departments. I will table an amendment to deal with this on Committee Stage, which I hope the Minister will accept.

Part 5 establishes a statutory basis for positive action measures to support the employment of people with disabilities in the public service. Does the Minister agree that working people with disabilities are getting at least the minimum wage? When the Equality Bill was going through this House, the Minister for Justice, Equality and Law Reform accepted an amendment I put forward on this issue. I was surprised, therefore, to hear on the radio recently that people with disabilities not far from here are not getting the minimum wage. Can we be sure that people with disabilities are not being abused financially? Are we ensuring they are entitled to at least the minimum wage?

I look forward to Committee Stage when I will table many amendments. My Dáil colleagues put forward amendments we felt were absolutely necessary but would incur a cost on the State. We were very frustrated that they were not accepted. Addressing the many anomalies in the legislation would incur a cost. Regrettably, the Minister of State rejected those amendments in the Dáil. I hope there will be co-operation on this and that the Government will work with the Opposition. We can improve this Bill and enact the legislation the disability groups want, which will ultimately deliver the service to the people who need it.

Mr. Kett

I welcome the Minister of State and I congratulate him on bringing this Bill before the House. It will be one of the most important Bills discussed in my time here. I commend him on the energy and enthusiasm given to it and I also commend the contributions made by Deputies O'Dea and Mary Wallace when they were in the job. I know it was not an easy task.

The publication of the report by the Commission on the Status of People with Disabilities was a watershed in the sector. It dealt comprehensively with the issues faced by people with disabilities, their carers and advocates and became the cornerstone of Government policy. This is a new beginning for people with disabilities. They will witness the positive manifestation of everything this Government has done, from legislation right through to the resources the Minister of State is putting in the sector. Nobody has suggested this is the be all and end all of legislation, but it is a new beginning. Anyone who has negative feelings about it should consider the positive repercussions it will have for those who deal with disability on a daily basis.

There are many people to commend. The DLCG is the consultative group brought together to guide the Minister of State, the Taoiseach and others. Senator Terry mentioned that representatives of NAMHI were upset and pulled away from it. I accept their right to do that. However, the Disability Federation of Ireland represents over 150 voluntary bodies and its representatives are fairly happy with the changes made and the amendments accepted by the Minister of State.

The shame on us is that we are behind in looking after disabled people. They did not drop out of the sky and are here since the beginning of mankind. In pre-Christian Ireland, the Brehon laws categorised them, not very flatteringly, as idiots, doters, fools and people without sense. However, they were exempt from certain punishments and were protected from exploitation. Even at that time, such people were protected in some small way. Daniel Defoe was the first person to come up with the idea that these people should be housed in what he termed "fool houses". Unfortunately, his intentions were not good as the idea was to keep them out of sight, out of mind. His thinking was to protect society from them and a stigma is still attached to disability today. One only has to talk to people with disabilities, their carers and families to realise this.

Over the past 40 years, there have been many improvements, especially in the attitude of the public. In the past eight years, major resources and benefits have been given to people with disability, but not enough. It is no wonder the parents of these people felt so let down and so frustrated by successive Governments that they had to resort to other means to sort out their dilemmas. The voluntary sector then came to the fore, thanks to wonderful people with vision such as the late Lady Valerie Goulding, whom I knew and with whom I worked. Such people stepped into the breach when the public finances were not there and Governments were not thinking about the issue. The voluntary organisations today stand disabled people in good stead. They are a credit to us all. With a few exceptions, they do a tremendous job with limited resources.

The challenge faced by this Government in 1997 was formidable. There were areas where little or no service was being delivered. As someone who has worked in this area for a long time, I am heartened by this legislation, which will have a tremendous impact into the future. Its provisions represent the way forward in the area of disability. For many families to whom I have spoken, this is the first time they have seen a light at the end of the tunnel. They consider that something real is finally on offer in place of mere aspirations. I hope we continue as we have started in ensuring that families are give all the resources and commitments they require. We are putting in place the most effective achievable combination of legislation, institutional arrangements and services to support those with disabilities and their families. This will serve to reinforce the possibility that persons with disabilities can find their way into the mainstream, live their lives in the best possible way and link into the regular workforce where possible.

The unblemished truth is that all of us have failed persons with disabilities in the past. Improvement in this area is not something that is impossible to deliver. Those with disabilities have a reasonable expectation to engage in what life offers them. This is not too much to ask and it is not too much for us to deliver. It is to be hoped that this legislation will ensure we have public policy based on an understanding of disability. This disability proofing, which was alluded to by Senator Terry, is something for which the DFI has repeatedly called.

The federation asks that those charged with the responsibility of making decisions within Departments will consider the needs of persons with disabilities. If this approach is not taken, the consequence will be poor decisions from the perspective of those with disabilities. There may be a requirement in the coming years that those responsible for making decisions that have an impact, whether negative or positive, on the lives of people with disabilities should partake in a training process that will educate them on the impact of those decisions. People often make decisions without any awareness of their potential impact on people with disabilities. A consideration of the needs of those with disabilities before any decisions are made will have a positive effect.

As the Minister of State observed, significant funds have been invested in the area of disability and there has been much effective legislation. There is no doubt that if this legislation is implemented effectively so that discrimination is eliminated, employment can be an attainable objective for persons with disabilities. Employment is a key to taking such persons out of the mire. Statistics indicate that 80% of households headed by a person with a disability struggle with poverty. This is not good enough and we, as the makers and enforcers of legislation, must ensure we monitor the legislation to ensure its effectiveness. Those who choose to ignore it should bear the full brunt of our dissatisfaction. Many Governments in the past have attempted to remove the various levels of discrimination from our society but we have failed collectively in this endeavour.

I am delighted to note the Minister of State's comments on developments following his recent discussions with the Taoiseach and the DLCG on the sectoral plans. More monitoring and accountability will now take place and Departments will be required to prepare and publish a plan of projected measures. Moreover, they will be required to demonstrate their achievements on a regular basis. My initial impression of the sectoral plans was that they were somewhat milk and watery. However, this brings an entirely new focus to this area and is a positive development.

Access is the gateway to full participation in society for those with a disability. Access refers not only to the ability to access a building, park or beach but encompasses the right to access transport services. We must facilitate people with disabilities in enhancing their educational prospects, seeking housing and living independently if they so desire. One of the wonderful advantages of modern technology is the opportunity it affords some of those with disabilities to attain an independent living. In short, people with disabilities should have equal rights to access those things which are accessible to able-bodied people. It is no longer acceptable that a person with a disability should have to use a back door because the front door is inaccessible, be lifted bodily up the stairs in a wheelchair or endure the humiliation of being unable to access a toilet. Such occurrences should be consigned to the past.

Part M of the Building Control Regulations 1991 refers to the necessity of ensuring ease of access and usage for persons with disabilities in respect of new buildings and significant extensions to old buildings. The inception of these provisions raised the hopes and expectations of people with disabilities but that hope has given way to weary resignation. The regulations did not achieve their objective for a reason I cannot explain. It is to be hoped that the focus on the sectoral plans will have a positive effect in terms of the sectoral plan for the Department of the Environment, Heritage and Local Government. There is no doubt that any ambiguity in the language we use in the planning regulations that relate to people with disabilities can be seized upon by designers and architects and minimised or maximised to their own benefit. In those circumstances, it is people with disabilities who will lose out.

An area not covered in the Disability Bill but which is of serious consequence and concern for those with disabilities is the issue of sheltered workshops. The Employment Equality Act 1998 and the Equal Status Act 2000 brought about a situation where change was needed in the functioning of sheltered workshops. I understand there is a draft proposal on a Minister's desk in this regard. I am not sure whether it is the Minister of State at the Department of Health and Children, Deputy Brian Lenihan, or the Minister for Enterprise, Trade and Employment, Deputy Martin. The draft proposal considers the number of workshops and the numbers of people involved.

I work for an organisation that has managed one of these workshops effectively for many years and have seen at first hand the benefits participants derive from the workshops. Participation brings a sense of self-worth and the feeling of being part of a workforce. At the same time, participants have the safety net of knowing there is no pressure on them to deliver anything in terms of productivity and so on. However, under the new guidelines relating to sheltered occupational services, we will now have to tell these people, perhaps after they have participated for as long as 35 years, that they can no longer be accommodated. They must now either be employed in the regular workforce, which is difficult to do with an embargo, or released from the sheltered occupational services.

This is a cause of major concern. The idea behind the workshops was that participants would be trained and educated for entry into the mainstream workforce. However, this is not a realistic aspiration for many people and in such cases, long-term participation in sheltered workshops has been provided. It will ruin some of these people if they are asked to go out and join a special occupation scheme, SOS. They simply will not do it. Such persons currently enjoy true fulfilment but they are likely to end up participating only in a day care activity. Whoever evaluated this system did not visit the sheltered workshops that are run effectively. If they did so, they would not institute the programme which they appear to be developing.

In terms of national disability standards, a consultative paper on guidelines for person-centred services has been prepared. These guidelines, which resemble the provisions of the Disability Bill on assessments and service statements, recommend that each service user should receive person-centred health services designed to meet his or her goals and needs. The essential criteria include participation in annual assessments of health service needs undertaken by a multidisciplinary assessment team which identifies the services and interventions required to meet these needs. This implies that a voluntary organisation must have a service statement for each individual involved which must be examined every year. The Disability Bill appears to make the same provision for people who look for an assessment. Will assessments through the HSE duplicate the work of voluntary organisations? It seems pointless that, if an annual assessment of an individual is conducted, the HSE should duplicate information already recorded in his or her file. I may be as far out as a lighthouse on this matter but wonder whether a marriage of efforts may take place.

I congratulate the Minister of State on the introduction of this Bill. On behalf of people with disabilities, I look forward to its delivery.

Ms Tuffy

While this Bill has been subject to much discussion as it passed through the Dáil, time remains for the Seanad to bring it to the proper standard. Senator Kett was self-congratulatory regarding the Government's achievement in bringing forward this legislation. However, as the Government has said, much more needs to be done.

In two years, this Government will have been in power for a decade. The two parties involved will have had ten years to get this legislation right. Substantial consultation has taken place and work has been done by interested parties on this matter. This is the second attempt to introduce a Bill dealing with this issue. A good monument to this Government will not be constructed if this process is completed without key aspects being addressed. While any action is welcome, insufficient progress has been made in the context of ten years of Government and the best economic circumstances this country has experienced. The past decade presented opportunities to build on experience and rectify past mistakes.

The Minister of State is correct in saying that some issues have been addressed over the course of consultations with the DLCG on this Bill and during its passage through the Dáil. Credit for this is due to the involvement of disability action groups. I will restate the five outstanding key areas which remain unaddressed. The Minister of State touches on these areas but does not clarify them in a similar manner to the various groups involved. These key areas have been raised by groups involved with the DLCG and those not involved with it.

The first area involves a clear and unequivocal right to an assessment of needs which is not resource dependent. The Minister of State said that assessment processes will ultimately be resource dependent. His answer is not good enough and reveals a fundamental problem in the Bill. We cannot claim that equality in any other sense, such as between men and women, should be resource dependent. Matters of equality and fundamental rights cannot be addressed in this manner. It implies that a sector of society is segregated and would be the first to fall if money is not available. That is not appropriate in the context of fundamental rights. The premise of this legislation should be that people with disabilities have the same human rights as everybody else. To make the rights of one category of people resource dependent in contrast to the rest of society is to discriminate against that category. The legislation before us is based on a discriminatory perspective. Money which is being wasted in other areas could contribute to the provision of the funds necessary to avoid resource dependency.

Groups have noted that the services identified in the assessment of an individual must be provided within a reasonable and agreed timeframe. The Minister of State's response to this, which referred to the obligation on the HSE to collect aggregate data, is not good enough. People need to know that their needs will be assessed within a certain timeframe. If this is not provided for, they will never be sure of receiving the required services.

The progressive realisation of services has been discussed. Anyone should be able to expect that his or her needs will be addressed over an assessable period of time. I ask the Minister of State to re-examine the issue of timeframes. It is reasonable to ask that people are given timeframes. It should be expected that, if assessments of needs and services are to be provided, they should be carried out over a certain period. Otherwise, people see no light at the end of the tunnel because they are not assured that their needs will be met.

The Minister of State mentioned that the Taoiseach responded to the DLCG's five areas by setting out Government policy on each but he refers to only four of these areas. The third area, namely, that the Bill must provide for clear protection of disability-specific resources, has been identified in the Dáil. I ask the Minister of State to re-examine this issue because funding for this Bill should be ring-fenced. As this has been done for other legislation, why can it not be done in this instance? We need to be sure progress will be made every year in terms of the promises contained in this legislation and the realisation of people's rights.

The disability groups demand that the provisions on sectoral plans take account of the wider needs of people with disabilities. Each Department with relevant services must provide a sectoral plan. I do not understand why a mere six Departments have been identified by the Government. The issues addressed by the Disability Bill apply to all Departments. The approach should not be cross-departmental as set out in the Minister's speech, but should take in all Departments. I ask the Minister of State to reconsider the provisions and implement the key recommendations of the disability groups.

The fifth requirement identified by the group, including those involved in the DLCG, was for the Bill to provide for a clear statutory duty on all Departments and public bodies to include people with disabilities in their plans and services with appropriate monitoring and accountability. The Minister of State has not referred to such measures although he has mentioned important provisions such as the creation of significant requirements for public bodies in the areas of access to buildings, services, information and delivery on provisions. While these measures represent progress, it is not the significant progress the Minister of State claimed. They are superficial provisions whereas much more fundamental measures are required. For example, the requirement for local authorities to ensure the buildings for which they provide planning permission are accessible should be enforced. People should know such matters will be followed up in a way which does not happen currently. Enforcement will not take place under the provisions the Government is delivering in the Bill.

Services are fundamental to a framework of the type the Minister of State seems to have in mind. The rights movement in the disability sector wants legislation and the approach to disability to originate from a completely different perspective than it has until now. We must start with the assumption that people with disabilities have the same rights as everybody else and are entitled to the vindication of those rights. As one may see a cup which is half full as half empty, the completely opposite view must be taken in our approach to disability. To provide people with disability with the same human rights is not to create an additional entitlement for them. Legislation should enforce those rights and ensure they are vindicated.

The rights-based approach is not about new rights, it is about fundamental rights which already exist. It involves the same arguments one would put forward to secure equal rights for men and women or people of different races or ages. People with disabilities should have the same rights as everybody else.

Mr. Dardis

That is what Mervyn Taylor did.

Ms Tuffy

The Minister of State spoke about the €2.9 billion which is currently spent on services for people with disabilities. If we considered the matter from the perspective I have outlined, the focus would be on the €38 billion which is spent to proof expenditure to ensure everybody has his or her rights enforced, including people with disabilities and people of different genders and ages.

In their discussions with the Minister of State and the Taoiseach, rights groups and the DLCG suggested a disability commissioner would be established under the legislation. There is a precedent for the provision in the rights commissioner provided for in the language legislation. The Information Commissioner is provided for in the FOI legislation. Commissioners can play a role in the review of legislation such as the one promised by the Minister of State to take place in five years. A disability commissioner would be the ideal person to carry out a review and ensure the legislation is implemented across the public service.

Section 20 does not provide recourse to the courts. As I no longer work as a solicitor, my interest in the matter is observational rather than vested. The failure to provide such recourse is typical of the Government's approach to legal rights. Another example was the legislation it brought before the House before Christmas to deprive people of their right to compensation on foot of illegal nursing home charges. There is a negative attitude to those who attempt to pursue rights which, of course, we would not have were people not prepared to fight for them. Ultimately, people pursue their rights through the courts. As the legislation attempts to deprive them of the right, it will be found unconstitutional. It is right and fitting that the legislation establishes a separate forum people can access easily to have their rights adjudicated. While most people will want to go that way and, if the system works correctly, accept the determination of the appeals process, they should have the right of ultimate resort to the courts.

While points of law are allowed for, the provision does not go far enough. If a person feels a decision made through the appeals process is unfair or mistaken, he or she should be able to go to court to have the matter determined. While we expect to have the facility in every other aspect of life, we are trying to take the right away from the most vulnerable group in society. The Minister of State said other countries had not provided for justiciable rights, which is an argument I do not accept. It is a fundamental right in democratic countries with proper legal systems that one can ultimately go to court to pursue one's rights. Not only are we failing to provide rights under the legislation, we are taking them away. It is a step backwards.

If the Government intends to do everything it says it will under the components of its strategy and sectoral plans, of what is it afraid? Most people do not want to go to court, they want simply to be able to assert their rights straightforwardly in the course of their normal dealings with public services. The courts are a place of last resort for the vast majority of the population and no one takes recourse to them lightly.

While any legislation represents progress and the Bill has some positive elements, the failure to address the five recommendations of the disability groups is not good enough. It is a poor effort from a Government which has had ten years to formulate the legislation. To bring forward such legislation after ten years is to close a door on all of those involved. How long will they have to wait to see legislation in this area again? Must they wait for a change of Government to have their fundamental rights recognised? In its 1997 programme, the Government promised to carry out the wishes of those involved in the disability campaign and said it was committed to ensuring disability was placed on the agenda of every Department and public body where it belonged. The Government said it recognised that disability was one of the most important social issues facing Ireland. If that was true, I urge the Minister of State to accept the five recommendations which have been put forward by the disability groups and by me today. The Minister of State should use the Seanad as a vehicle to change the legislation.

Mr. Dardis

I welcome the Minister of State, Deputy Fahey, to the House for this important debate. I welcome also the opportunity to speak on an important Bill, which I support, though not unreservedly.

I have fewer reservations than I originally had on the basis of the amendments introduced in the Dáil. Those reservations were further diminished when I heard the Minister of State inform us of the meeting which took place on 25 May between the Taoiseach and the DLCG. He also stated that he hoped to be in a position to bring forward a number of Government amendments to address as many of the group's proposals as possible following a detailed examination of them. As the Bill progresses I am more reassured than I was at the outset and far more reassured than I was with the original Bill, especially section 47, to which the Minister referred.

Few pieces of legislation have generated as much interest, emotion or active participation by the public and groups representing people with physical, sensory and intellectual disability. It is important to pay tribute to the work done by those people and also to acknowledge the debt society owes to them, especially those in the voluntary sector who have done such Trojan work in highlighting the needs of people with disability and in looking after and meeting those needs.

The Bill has had a long and tortuous journey to this point where we can debate it. Since I entered the Seanad in 1989 I have always tried to promote the cause of people with disabilities and I hope I can claim some success in securing extra recognition and resources for them. I accept I am not alone in that. Many other Members have tried to do the same. I concede that matters are far from perfect but the rights of people of people with disabilities have gone from being little debated or recognised to a point where they are now central within society. The Bill represents a major step forward on that path.

Every Member of the Seanad without exception wishes to vindicate, support and improve the situation of disabled people. It is entirely disingenuous to suggest that people would want to do other than their best, be they members of political parties or not, to improve the lot of disabled people. We may differ deeply on occasion on how that should be achieved but it is wrong to reduce the debate to a political point scoring and crude slanging match as has sometimes happened during recent months. No one person or group has a monopoly on knowledge, experience or agonising on how best to legislate in this area. Cynical exploitation of vulnerable people for political purposes must be denounced.

We are dealing with the complex and broad issue of disability on the one hand and the intricacies of legislation on the other. That has made legislative progress a fraught exercise. I was closely involved in the first attempt to produce suitable legislation, which was subsequently withdrawn. On that basis I welcome the fact that we have reached this stage in the legislative process and that the Disability Bill 2004 has finally reached the Seanad.

I would have had serious difficulties in supporting section 47 of the original Bill, which protected the State against legal challenge. I welcome the fact that amendments have been made. I would have had difficulty with the Bill if certain aspects had not been amended. The Bill as currently presented represents a significant step forward. It may be less than ideal but it will lead to a major improvement in the lives of disabled people and in the relationship between them and the State. Those who are entitled to look to the State to provide them with support and services can do so with confidence.

The issue of rights has dominated the debate on the Bill in this House, in the Dáil, in the media, in consultation documents, submissions and the public meetings which many of us attended. We must try to uncover the facts. The Bill is rights based but it will not be litigation driven. That is a key point. The Bill provides new rights for people with disabilities and statements to the contrary from many quarters, both in the House and the media, are unfair and unhelpful.

The point has been made about disabled people having the same human rights as anyone else. Everybody would agree that this should be the case. That has been enshrined in law. A body of law going back ten years provides equal status and prevents discrimination against people on the grounds of disability, sexual orientation, religion or any other reason. That is as it should be. However, one cannot provide superior rights to one group of people. Irrespective of how worthy we might be, we all stand equal before the law.

To bring Ireland to the highest international standards with a legal basis for services should be and has been the objective of the Government in drafting the legislation. The rights provided for people with disabilities are extensive and welcome. The Government has committed itself to introducing rights of assessment, appeal, provision and enforcement for the disabled. I commend this progress which will put Ireland in the first rank in terms of international practice. Several references have been made to the constitutional protection afforded to disabled people in South Africa and I will return to this point later.

The issue of rights has been at the heart of the debate, especially the right to the provision of services, so much so, that the other rights provided in the Bill are somewhat ignored, which is to be regretted. The right of provision must be and will be limited by the availability of resources. That is standard practice in legislation. I have found no case internationally that is otherwise. No matter how much we would like it to be otherwise we should be honest and say that is how it must be. Anyone who intends to challenge this view in the debate in this House in the coming days should reconsider the basis for his or her claims.

No State can provide for unfettered absolute rights for any group, able bodied or otherwise. The State must act in the interest of all its citizens. These rights cannot be justiciable. The State should provide equal rights to all its citizens but cannot and should not provide for superior rights for particular individuals, however worthy they may be.

No country has provided a right to court enforced services, irrespective of resources. To do so would be unrealistic, unwise, disingenuous and irresponsible. There will be those who will persist and argue this point. Most likely they will say that what people with disabilities want is the right to court enforced services, irrespective of resources. The Minister of State has told us about the cost of court enforced services. He made the point that for every €1 which the litigant received, the legal services received €4. We do not want another charter that is a gravy train for the people in the Law Society. The absolutist view must be challenged. What people with disabilities want are predictable, deliverable and quality services, proper recognition and a good quality of life. They do not want court cases which would not be helpful for them.

Individuals and groups that referred to the South African constitutional provision of rights to services have gleaned much political capital. I wish to put the record straight on this issue. The provision is an empty one. It is meaningless, unimplemented and unimplementable. Prominent Irish activists in intellectual disability have assured me from their recent visits to South Africa that the level of services provided on the ground is very poor and is much worse than that in Ireland at present. While it is part of the constitution, there is no evidence that the constitutional protection has been implemented on the ground.

Before citing examples of what Ireland should aspire to in terms of services for the disabled, people should look at the reality on the ground. Providing for something unrealistic in a constitution or anywhere else is not the same as making it a reality. I am satisfied that rather than including empty provisions, the Bill is realistic in what it states it can do for people, which is what they deserve. We must move away from allowing the argument to dominate discussion on the Bill. It will serve no purpose other than to deflect from the other sections of the legislation which should be examined by the House. One such issue, which is an integral one, is definition. I had concerns about the definition of "disability" in the original draft of the legislation. My concern centred on the definition in section 2(1) of the Bill which referred to "a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life ... ". This definition is less than ideal, it is vague and raises questions. For example, how does it sit with the experience of the many blind or deaf people who are pursuing great careers and have very fulfilling lives? Is their blindness or deafness considered a disability under the legislation? Should it be?

I also have reservations about the word "enduring" as used in the phrase "an enduring physical, sensory, mental health or intellectual impairment". This raises questions about those less-enduring or episodic illnesses which the majority of people would still consider to be disabling, particularly in terms of mental illness.

I am very much reassured by the amendments to section 6, now section 7(2). This ensures clarity on the inclusion of those with mental health impairments and children requiring early intervention. The raft of equality and non-discrimination measures introduced by successive Governments over the past 15 years supplements the amendments and provides the necessary legal protection to vindicate rights where necessary.

Debate adjourned.

Acting Chairman (Mr. J. Walsh)

When is it proposed to sit again?

Mr. Dardis

At 10.30 a.m. tomorrow.