Disability Bill 2004: Committee Stage (Resumed).

Debate resumed on amendment No. 50:
In page 40, between lines 46 and 47, to insert the following new subsection:
"(5) The Minister shall, as soon as may be after the passing of this Act, prepare and lay before each House of the Oireachtas, a report on the possibility of increasing the public service employment quota for people with disabilities above 3 per cent.".
—(Senator Terry).

In response to the concerns of some parties, I am examining the definition of genetic testing under section 41 to clarify that it captures the proper spectrum of testing procedures which may apply to people affected by genetic disorders. If necessary, I may seek to introduce some minor technical amendments in this regard on Report Stage.

No matter what one does in respect of legislation, it is all about attitudes and awareness with regard to the employment of people with disabilities. Section 47(3) allows Ministers to make orders specifying compliance targets in respect of the recruitment and employment of people with disabilities. Where no orders are made, a target of not less than 3% will apply under subsection (4). The Bill already provides that a Minister can make an order setting compliance targets above 3%. There is a large range of public bodies of differing sizes and different operational requirements involved in the public sector. Experience points to the need to implement support measures which take account of the reality of how different public bodies operate. That is why Part 5 establishes an approach which will allow closer monitoring and reporting. The provisions also allow for a new focus on recruitment.

This approach derives from a search conducted in regard to the existing system which pointed to the need to monitor more clearly measurable elements, such as recruitment levels. Overall monitoring through the National Disability Authority will facilitate the ongoing review of progress. Therefore, I believe the objectives contained in the amendment seeking to enhance supports in public service employment are already sufficiently provided for in Part 5.

I amended this section of the Bill in the Dáil so that Departments would be required to take on, for training and work experience programmes, people with disabilities over and above the target of 3%. I was anxious to increase the target, but when I looked at the practical implications, especially for smaller State agencies and Departments, the reality of having a target level above 3% could be quite difficult. The flexibility that is now provided in requiring Departments to give work experience and training opportunities to people with disabilities is a better system.

The necessity for reporting is covered by the dedicated monitoring provisions in the Bill in which the NDA has a critical role. I am confident we will see the benefits of these provisions in the coming years. It would make no sense to report of possibilities of increasing targets directly after passing the Disability Act before the new arrangements and structures are put in place to support progress.

Senators should bear in mind that the National Disability Authority Act is also being amended, pursuant to section 52, by the insertion of a new subsection (6) in section 15 of that Act. This will require the NDA to report annually in respect of progress in achieving the target and this report will be laid before both Houses of the Oireachtas. When one considers that Act together with this legislation, and in addition to the amendment which I made in the Dáil, we have adequately covered our requirements and objectives with regard to employment of people with disabilities.

I am disappointed the Minister of State is not accepting the amendment, particularly in view of the consensus in favour of it. This is the type of commitment we all wish to see. We must try to encourage greater numbers of people with disabilities to enter employment.

We should put structures in place whereby State organisations or public bodies would be obliged to fill at least 3% of staff positions with people with disabilities. In many other areas we have seen that if structures are not put in place and organisations are not obliged to act the desired measures will not take effect. People will take the easiest route. In some situations employing people with disabilities requires a greater input from employers.

People with disabilities in employment have a huge contribution to make but, as the Minister of State is aware, employers initially do not think of employing someone with a disability. In order to avoid such a situation we must make employers think about it. The way to do this is to oblige them to employ a quota of people with disabilities. If the State does not undertake this measure we cannot expect the private sector to do it. We must lead by example. I ask the Minister of State to reconsider, to accept this amendment and thereby make it possible for many people with disabilities to access employment.

There are many people who have achieved a considerable amount through educating themselves, despite difficult circumstances. These people need the breaks as there are walls preventing people with disabilities from entering employment. The State sector must set the example and we must set standards and quotas. Unfortunately that is what is required, otherwise many capable people will be left behind. I do not accept the Minister of State's response, and ask him to reconsider before I table this again on Report Stage.

I join with Senator Terry in expressing disappointment at the Minister of State's response, particularly in light of the unanimity in the House. The public service plays an important lead role in many areas and we expect it to comply with the highest possible standards across the board. There is an expectation that it would take a lead role in employing people with disabilities. Not enough is being done and section 47 contains far too many outs and backdoors. The term "In so far as practicable" is a great example. One may simply respond that a particular measure is not practicable. Another example is "unless there is good reason to the contrary for not doing so" and there are far too many occurrences of "may" instead of "shall". We are used to that kind of terminology.

I am disappointed because I believe the Minister of State is committed and wants to achieve change. He genuinely believes that matters will progress because of this Bill and I hope he is right. The framework provided for in the legislation is the foundation and it is not sufficiently solid in this case.

I apologise to the Minister of State and to the House for my absence from the debate on Committee Stage this morning. I attended a meeting of the Joint Committee on European Affairs and the Joint Committee on the Environment and Local Government. It is disappointing that we should have to specify any figure, regardless of whether this is 3% or 2%. It is unfortunate that we must do this to concentrate the minds of some people on their obligations. The situation anticipated in the amendment is covered in the Bill under section 47(3)(d)(i), which states that the Minister may specify “the numbers or percentages of persons with disabilities to be recruited by the public body concerned”. There is an implicit flexibility that allows the import of the amendment to be met.

I appeal to the most senior people in all Departments, not just those specified in the Bill. I apologise if this appeal was already made this morning. These people have a responsibility to employ people with disabilities and a responsibility to ensure that Departments are accessible to people with disabilities. The entire Government must recognise the rights of people with disabilities.

In an article inThe Irish Times this morning the chief executive of the Disability Federation of Ireland, Mr. John Dolan, states that “A disabled person has no more or no less rights than any other person”. This is a point I made on Second Stage but we must acknowledge that these rights exist. The political mindset has changed considerably over the period of my time in this House and there is a general acknowledgement among all parties and politicians of the need to have disabled people incorporated into our societies. I am not sure that mindset has changed within Departments. Anything we can do to ensure everyone in the Civil Service is aware of what is required is beneficial.

The local authorities have been more successful than Departments in this respect. In my area, County Kildare, significant progress has been made in respect of people with sensory, physical and intellectual disabilities. Senator Quinn suggested focusing on the ability of people rather than on their disability. As a member of Kildare county council I came into contact with these people and realised how much ability they had. Only when this ability was released, recognised and allowed to find expression was progress made. The Minister needs to inculcate in the public service the absolute need to be conscious of these matters.

At a recent meeting in Luxembourg I entered a large assembly hall and saw wheelchairs lined up inside the door. If someone got out of a car and needed a wheelchair it was available. How many places in Ireland have the same facility? It should be routine. The question of money is not important, rather it is attitudes that need to change.

We had a long discussion this morning about knocking heads together within the Civil Service where attitudes have to change. As I have said all along, one cannot legislate for changes in attitude. One can, however, legislate in cases where change comes about as a result of people being obliged to adopt certain attitudes, even if such circumstances are forced upon them. Perhaps the Minister of State did not get a chance to have lunch, but I had hoped that over the lunch break he would have re-examined this matter. Has the Minister of State or his officials information on which Departments fulfil the 3% target? If so, could he read the details to the House? I think those statistics would be very significant. When I was Minister for Public Enterprise, my Department used to furnish these figures, which is why I am aware of such monitoring. It would be interesting if the Minister of State could provide a list of Departments that are complying with the 3% target figure for employing people with disabilities. Does he have those figures?

I do not have them with me.

Perhaps the Minister of State's officials have the figures and, if so, I will wait until they are available.

The amendment seeks, in page 40, between lines 46 and 47, to insert the following new subsection: "(5) The Minster shall, as soon as may be after the passing of this Act, prepare and lay before each House of the Oireachtas, a report on the possibility of increasing the public service employment quota for people with disabilities above 3 per cent.".

I could do that without inserting it in the legislation so it would not be of great benefit to insert it in the Bill. As I have already pointed out, there is quite an amount of obligations on the NDA and the Equality Authority to promote equality. The Bill goes further concerning the obligations placed on public service employers which, together with the reporting procedures that are being introduced in the Bill, will further increase the pressures on employers.

In addition to that, the amendment I have already made in this regard will provide for an increase in numbers above 3%. That will be done on the basis of people being taken on above 3% so they can undertake periods of training and work experience. There is no ceiling as to the number of people that can be taken on in that respect. When one takes into account that amendment plus the reporting procedures in the Bill, they more than cover the spirit of this amendment which seeks a report to be prepared immediately after the Bill is enacted.

The whole debate on this Bill is pretty frustrating from my point of view and that of the Opposition generally. We spend hours preparing for the debate and then spend hours debating the various amendments, but we do not really get anywhere. Perhaps, therefore, it would be better if the Minister of State came in at the beginning and said, "I'm not going to accept any of your amendments", thus ruling them all out of order.

He did accept some.

This is a simple amendment which does not seek too much, yet the Minister of State has not provided me with a good enough reason not to accept it.

I accepted a number of points the Minister of State made during the debate. He made them constructively, putting forward an argument as to why my amendments should not be accepted. I have agreed with him along the way, but in this case he has not provided any good reason he will not accept this amendment. Everybody has spoken in favour of increasing this percentage, yet we know there are public bodies that have not even reached the 3% quota. Why have they not reached their quota and what is the Minister of State doing to ensure they will do so? The Minister of State is resistant to trying to raise that quota. He said it would create a cost or make it difficult for employers to employ——

I did not say that.

I am sorry if I misrepresented what the Minister of State said. I thought he said it would make it more difficult and I would disagree with that view. We are talking about the public sector and we must set the standards so others will follow. Earlier, everyone praised Senator Quinn for what he and others have done in the private sector. The Minister of State has not convinced me as to why he will not go beyond the 3% quota. Everyone here, including Members on the Government side of the House, supports this amendment.

This is very disappointing. I fully support what Senator Terry said. All that is being sought is the possibility of increasing the public service employment quota above 3% for people with disabilities. No commitment is being made to increase it beyond that level. It it very little to ask. It is being sought so there will be some numerical target to achieve. Senator Terry is quite right in saying we strongly suspect that many Departments and other public bodies do not currently employ even 3% of staff with disabilities. It is difficult to obtain the relevant figures. This amendment represents an attempt by the Oireachtas to show solidarity with people with disabilities who are seeking employment. They are seeking jobs, not charity.

Senator Terry is being somewhat disingenuous in her accusation that I am not prepared to accept amendments. It is not normal to review matters and return the following day and agree to make some amendments. That was because on this occasion the Leader of the House asked me to be especially vigilant in trying to accord with the views of the Opposition.

The amendment simply proposes that I report on the possibility of increasing the public service employment quota for people with disabilities above 3%. I could say there is no possibility of that. The amendment does not seek that the quota should be more than 3%. That is the first reason I am rejecting the amendment. The second reason is that Ministers can make orders to this effect. The 3% figure is a quota but there is nothing to stop individual Ministers or Departments going above 3%. Section 47(3) states:

(a) The Minister for Finance may, with the consent of the Minister, by order specify compliance targets relating to the recruitment and employment of persons with disabilities in public bodies the members of whose staff are civil servants and the public bodies accountable to him or her.

(b) The Minister may, with the consent of the Minister for Finance, by order specify compliance targets relating to the recruitment and employment of persons with disabilities in the public bodies accountable to him or her.

Therefore, the legislation does provide for employment targets above 3%. The Minister may make orders to ensure that employment targets above 3% are adhered to. The reason the figure of 3% is included in the legislation is because it represents the minimum number that can be employed. Having worked in a Department with responsibility for labour matters in my last job, I was anxious to ensure the maximum number of people with disabilities would be employed in the public service. I tried to see if we could get a percentage higher than 3%. However, for practical reasons, my officials and I decided it was better to opt for this formula of a minimum 3% quota, plus ministerial orders to go above that level. In addition, in order to ensure an open door policy regarding people with disabilities, we added a further amendment to the effect that training and work experience places would be provided over and above the 3% quota.

I do not need to be convinced of the absolute necessity for the public service to lead the way in the context of employment opportunities for people with disabilities. I remind Senators that this does not refer to the private sector. All we can do is try to increase that sector's awareness. With all due respect to Senator Terry, this amendment will do no more than ensure a report to the Houses of the Oireachtas, which I can do without any legislation.

Amendment, by leave, withdrawn.
Question put: "That section 47 stand part of the Bill."
The Committee divided: Tá, 30; Níl, 18.

  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Cox, Margaret.
  • Daly, Brendan.
  • Dardis, John.
  • Dooley, Timmy.
  • Glynn, Camillus.
  • Hanafin, John.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • Walsh, Kate.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bannon, James.
  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Paddy.
  • Coghlan, Paul.
  • Coonan, Noel.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Hayes, Brian.
  • Henry, Mary.
  • McCarthy, Michael.
  • McHugh, Joe.
  • Norris, David.
  • O’Meara, Kathleen.
  • O’Toole, Joe.
  • Phelan, John.
  • Ross, Shane.
  • Terry, Sheila.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators O’Meara and Terry.
Question declared carried.
SECTION 48.
Government amendment No. 51:
In page 41, subsection (2), line 19, to delete "compliance," and substitute "compliance".

This is a technical amendment which improves the comprehension of the provision.

Amendment agreed to.
Section 48, as amended, agreed to.
Sections 49 to 51, inclusive, agreed to.
SECTION 52.
Question proposed: "That section 52 stand part of the Bill."

I indicated on Committee Stage in the Dáil that I would consult with the Parliamentary Counsel on the feasibility of reflecting the term "designed for all" to have the same meaning as "universal design" in the work of the new centre of excellence to be established by the National Disability Authority. The advice available to me is that there are legal and technical reasons as to why it is not possible to provide in the Bill that "universal design" means also "design for all".

The words in each case may be interchangeable, based as they are on usage nationally and internationally. However, the words in legislation have specific meaning and I am informed that it is not the practice to use certain words in a statute and to state in the same statute that other words, even though not used anywhere else in the statute, may be defined as having the same meaning. As far as can be identified, there is no precedent in our legislative code.

The wording in the Bill, "universal design", is in line with the use of those words internationally. No doubts arise for legislative purposes about their meaning. They achieve their purpose in the Bill as it stands. I am satisfied, on the advice given to me, that there is no need for change.

Will the Minister of State give us some indication of where the centre of excellence will be located and who will run it? Has any decision been made on this or is it something that will be decided later?

The proposed centre for excellence in universal design will be within the ambit of the National Disability Authority. It is obvious that various interested parties in the disability sector will be consulted. I have met representatives of groups with a specific interest in design issues which affect people with disabilities. I assure the House that such people will be involved in the proposed centre for excellence, which will be within the ambit of the National Disability Authority.

What will the centre of excellence be? Will it be just a building?

The centre of excellence will ensure that the needs of people with disabilities will be taken into consideration when decisions are being made on all aspects of the design of buildings, such as the information technology aspects of buildings. It will be involved in advance architectural and other planning work. It will have regard to planning regulations and other regulations governing IT developments, etc. It will be a centre of excellence in design. It will ensure that the disability sector is included in modern developments.

I recently attended a function in Ennis at which environmental awards were presented to those who designed buildings of outstanding architectural merit. I was amazed to note that many of the buildings which won such awards were not accessible for people with disabilities. When I drew this matter to the attention of the architects, planners and designers who won prizes, I was amazed by their lack of awareness of the need to deal with this issue. They seemed to think it was a matter to be considered by other people. I welcome the proposal to develop a centre of excellence. I hope it will be successful and will receive the publicity it deserves. Its existence should be drawn to the attention of this country's planners and designers, some of whom seem to be blissfully unaware of the problems which are encountered by people who cannot access public and private buildings.

I am surprised to learn of the Senator's experience. The planning laws require that people with disabilities be afforded ease of access to new buildings. I would be interested to hear about the specific cases referred to by the Senator.

I was surprised.

It comes as a surprise to me to learn that certain people involved in the planning sector are unaware of the legal requirements. The main objective of the proposed centre of excellence will be to work with the professional bodies to ensure that the principles of universal design are taken into consideration during all kinds of design work and architectural planning. The work of the centre will complement technological and other developments.

Question put and agreed to.
SECTION 53.

Amendments Nos. 52 to 55, inclusive, are related and will be discussed together.

Government amendment No. 52:
In page 48, line 34, after "impairment" to insert "persons who are blind or partially sighted".
Amendment agreed to.
Government amendment No. 53:
In page 48, line 37, to delete "teletext services, and" and substitute "teletext services,".
Amendment agreed to.
Government amendment No. 54:
In page 48, line 38, to delete "subtitling," and substitute "subtitling, and".
Amendment agreed to.
Government amendment No. 55:
In page 48, between lines 38 and 39 to insert the following:
"(IV) audio description,".
Amendment agreed to.
Section 53, as amended, agreed to.
Sections 54 to 56, inclusive, agreed to.
SECTION 57.

I move amendment No. 56:

In page 50, between lines 19 and 20, to insert the following new subsection:

"(2) (a) Nothing in this Act, shall be taken to contravene, or constitute any alteration, to the rights and protections prescribed in the Equal Status Acts 2000 to 2004.

(b) Nothing in this Act, shall be taken to contravene, or constitute any alteration, to the rights and protections prescribed in the European Convention of Human Rights Act 2003.

(c) Nothing in this Act, shall be taken to contravene, or constitute any alteration, to the rights and protections prescribed in the Employment Equality Acts 2000 to 2004.”.

I thought amendment No. 56 was a Government amendment.

No. It was incorrectly highlighted in the printed list as a Government amendment. It was tabled by Senator Terry.

I am sure the Leader was prepared to accept the amendment.

I never opened my mouth. I am not a bit like that.

I will be happy when the Government parties accept this amendment, as I am sure they will. The amendment seeks to ensure that this legislation complies with other legislation that is already in place. I want to ensure that nothing in this Bill affects or diminishes the rights and protections contained in Equal Status Acts, the European Convention of Human Rights Act 2003 and the Employment Equality Acts. We all need to accept the ideals which underpin such legislation, which was passed by the Oireachtas. Nothing in this Bill should diminish the rights and protections afforded to people with disabilities under the Acts I have mentioned. The Minister of State did not answer the question I asked earlier about minimum rates of pay. Perhaps I did not ask it in the correct context. An amendment was made to the Equal Status Acts to ensure that public and private sector workers with disabilities are entitled to a rate of pay that is not less than the minimum wage. That amendment ensures that the rights of such people under the Equal Status Acts and other Acts are upheld rather than diminished.

While I am not sure about Senator Terry's amendment, it is clear that she has raised an important issue. I was contacted by representatives of the Kildare network of People with Disabilities in Ireland. They said the possibility that the Bill might undermine some of the strengths of the Equal Status Acts is of pressing concern to them. They have called on Senators to keep that possibility in mind during the debate on this Bill, especially as the Equal Status Acts seem to be working reasonably well for people with disabilities. I said on Second Stage that I think the provisions of the Equal Status Acts cover any circumstances which are not covered by this Bill. It is important for the Minister of State to clarify this issue so that there is no confusion about it.

I support the comments made by Senator Dardis. I have also been contacted by representatives of People with Disabilities in Ireland. It would be dreadful if this Bill, which has been introduced to assist people with disabilities, were in any way to remove some of their rights under existing legislation. I am sure that is not the Minister of State's intention, but he can ensure it will not happen by accepting Senator Terry's amendment.

I ask the Minister of State to assure the House, in light of what has been said, that the amendment is not necessary.

I understand the argument being made by other Senators. We should not confuse the minimum wage that is given to people with disabilities who are in actual employment with the wage that is given to people with disabilities who are engaged in training. People in the latter group are also entitled to receive a limited amount of money under the disabled payment maintenance allowance scheme. If such people earn more than a specified amount of money, however, they will lose a portion of their allowance or the benefits which derive from it. Those who argue that people with disabilities are being taken for granted under the minimum wage system may not be aware that such people are in danger of the losing the moneys they receive under the disabled payment maintenance allowance scheme if they earn more than a certain amount.

The minimum wage of €8 per hour applies to all employees, including people with disabilities. I would be interested in hearing about cases of the minimum wage not being paid, if Senators can cite such examples. In some cases, employers may be exempt from paying the minimum wage to people in training, but that exemption cannot last for longer than a certain period of time.

How long is that period of time?

It lasts for a maximum of three years. The exemption normally applies to people who are being trained under sheltered employment conditions. Under section 35 of the Employment Equality Act, people with disabilities will be entitled to the same minimum wage as anyone else.

While well intentioned, I am concerned that amendment No. 56 may not achieve the purposes for which it is drafted. Provisions of this nature are best avoided unless they bring beneficial clarity to the interpretation of the relevant enactments. Perhaps I should outline my concerns in regard to each element of the amendment.

The proposed amendment has three elements. The first element would require that nothing in the Act should be taken to contravene or constitute any alteration to the rights and protections prescribed in the Equal Status Acts 2000 to 2004. Section 14 of the Equal Status Act 2000 already provides that nothing in that Act shall be construed as prohibiting the taking of any action that is required by or under any enactment. As a result, the positive measures contained in this Bill, which amount to statutory obligations on public bodies, will be applicable, even though less onerous anti-discrimination provisions are contained in the Equal Status Acts 2000 to 2004.

An important point to note in regard to the provisions concerning the Employment Equality Acts 1998 to 2004 is that the content of the legislation is not directly germane to the Bill, except for section 33. The section contains an exclusion saying that nothing in the legislation shall render unlawful positive employment measures for people, including people with disabilities. The Bill takes up on that provision and requires public bodies to adopt the employment measures for people with disabilities.

On the third element of the amendments relating to human rights legislation, section 3 of the European Convention on Human Rights Act places an obligation on every organ of the State, as defined in section 1 of the Act, to perform its functions in a manner compatible with the State's obligations under the convention. Section 4 of the Act requires that all statutory provisions or rules of law enforced before or after the commencement of the Act must be interpreted and applied in a manner which is compatible with the State's obligations under the European Convention on Human Rights. It is clear from the European Convention on Human Rights Act 2003 that every court, in considering or interpreting any section of any Act, any statutory instrument or rule of common law, must seek to do so in a manner which is compatible with the European Convention on Human Rights and Fundamental Freedoms unless it is impossible to do so. In circumstances where it is not possible to interpret the statute, statutory instrument or rule of law concerned in a manner which is compatible with the convention, provision is made in section 5 for the superior courts to make a declaration of incompatibility which will be laid before the Houses of the Oireachtas.

In view of these provisions, I see no advantage in including the third element of the proposed amendment in the Bill. I do not propose to accept the amendment.

I accept that what the Minister of State said is true in regard to the content of the Acts to which I have referred in the amendment. As has been said on a number of occasions, what we are trying to do here is to strengthen and give power to this legislation, which is ground-breaking and for which many people have fought for many years. This will be used like their Bible. They want the legislation to be as strong as possible, giving them a strong voice and support. While these other Acts exist to uphold people's rights, there is nothing wrong with including this strong statement in the legislation. As far as I am concerned, it will strengthen the legislation; it certainly will not diminish it. When reviewing the legislation in five or ten years' time, many measures can be omitted, which I hope will be taken for granted when the time comes. Today we are dealing in an environment which is still not broad-minded enough to accept many of the issues that face people with disabilities.

I ask the Minister of State to reconsider the matter and accept the amendment in the spirit in which it is intended, namely, to strengthen the legislation.

There is no doubt the proposed amendment may render inapplicable the positive duties on bodies under the Act and replace them with limited provisions under section 4 of the Equal Status Act 2000, which deal with reasonable accommodation and nominal cost. Some people expressed concern about the impact the Disability Bill could have on the obligations placed on public bodies under the Equal Status Acts. They believe these obligations could be diluted by allowing these bodies to seek exemption under section 14 of the Acts.

Section 14 of the Equal Status Acts reads as follows:

Nothing in this Act shall be construed as prohibiting—

(a) the taking of any action that is required by or under—

(i) any enactment or order of a court,

All I can do is assure Senator Terry that there is no basis for the concern she expressed. The Equal Status Act prohibits discrimination on the grounds of disability among other grounds. The Disability Bill imposes further duties on public bodies, requiring that they take a range of positive actions, particularly in regard to buildings and services, which must be made accessible within the timeframe specified.

Amendment, by leave, withdrawn.
Section 57 agreed to.
Section 58 agreed to.
Schedule agreed to.
TITLE.

I move amendment No. 57:

In page 5, lines 7 to 12, to delete all words from and including "OCCASIONED" in line 7 down to and including "-CATION," in line 12 and substitute the following:

"OF PERSONS WITH DISABILITIES, TO ENABLE MINISTERS OF THE GOVERNMENT TO MAKE PROVISION".

I will be interested to hear what the Minister of State has to say on this issue. My amendment proposes to change the wording of the Long Title to read, "an Act to enable provision to be made for the assessment of health and education needs of persons with disabilities, to enable Ministers of the Government to make provision for services" and so on. I am deleting a number of words which will make it a better Title. I am making the point that we should ensure provision will be made for the delivery of the services. While the services and funding will not be ring-fenced, there is no commitment in the Bill to ensure multi-annual funding. Even though the Minister of State states that multi-annual funding has been in place for a number of years, there is no long-term commitment to this in the Bill. However, the Bill does not provide for a long-term commitment to multi-annual funding.

I very much support this important amendment. The Long Title sets out the intention of the legislation. Senator Terry seeks to delete the following words: "occasioned to persons with disabilities by their disabilities, to enable Ministers of the Government to make provision, consistent with the resources available to them and their obligations in relation to their allocation,". Allocations are always made consistent with the resources available; that is automatically a condition.

By contrast, Senator Terry's amendment will ensure the Long Title is clear, straightforward and powerful. It would state, "An Act to enable provision to be made for the assessment of health and educational needs of persons with disabilities, to enable Ministers of the Government to make provision for services to meet those needs...". This is a critical difference in emphasis because the conditionality of the Long Title is removed.

It would not then mean Ministers would have to make provision without the necessary resources available but it would empower them to make the necessary provision. It would also make clear that the legislation is designed to make provision where required. This is the core concern of people with disabilities regarding the legislation. They are concerned the same conditions will apply as previously and people with disabilities will find themselves at the end of the line when resources are allocated. For example, spending on mental health services has decreased considerably during the lifetime of the Government, despite the greater availability of resources. Unless a direct and powerful statement is made, there is always the fear and possibility that the necessary resources will not be allocated. This amendment is, therefore, important.

The amendment proposes to remove ministerial discretion in making provision for people with disabilities in the Long Title by deleting the reference to resource availability. Fundamental differences between the Government's position and that of the Opposition were evident during Second Stage. It will not, therefore, come as a surprise that I do not intend to accept the amendment. I wish to retain the Long Title, which adequately describes the intent and purpose of the Bill.

No Bill has ever been passed predicated on resources or on a guarantee regarding resources and the same applies in this case. The fundamental elements of good governance and responsible public expenditure are laid down in the procedures pertaining to the budgetary and Estimate requirements of the Department of Finance and other Departments. It is not practical to suggest that a Bill could be predicated on the resources made available under it.

Senator Terry referred to multiannual funding. The Government agreed a five-year rolling programme of funding and the Minister for Finance devoted more than half of his Budget Statement to the announcement of that programme. It would be ridiculous for a Government to announce a five-year spending programme and not implement it. However, it will be implemented as part of the budgetary and Estimates process. Such a programme is not part of the legislative process whereby the legislation is intended to underpin it.

The Senator is correct that there is nothing to prevent the next Government pursuing a different policy but all parties are agreed substantial additional resources are needed over the next five to ten years to provide services for people with disabilities. All parties also acknowledge that in the mid-1990s when every party spent time in Government, funding increased by only €1 million annually. Fianna Fáil, the Labour Party, Fine Gael, the Progressive Democrats and a number of Independent voices were in various Governments.

What I am being blamed for now?

The Progressive Democrats were not in Government at that time.

Yes, they were. We must face up to that reality. For some reason best known to ourselves as a society, people with disabilities did not rate. That is the reason the Church and voluntary bodies carried the can on their behalf completely and they are still involved. That is also the reason the culture in the State until recently was that people were locked up in the most horrendous fashion. We are trying to make up the ground following years of neglect. This year an additional €440 million will be provided by the Minister for Finance between the budget and the Estimates, giving a total allocation of €2.9 billion.

There is no question that the Government and its successor must considerably increase funding to provide proper services for people with disabilities. I do not care whether Members refer to acute hospital services, educational facilities or infrastructure because the spending priority must be services for people with disabilities. We have all met individuals and organisations who have made a cogent case that the legislation must represent a turning point. I can put my hand on my heart and say it does. The Government is committed to providing the significant additional resources required. The Minister for Finance stated on budget day that he would provide €900 million over the next five years. He did not say that would prevent him for providing additional money each year and he must provide more money if we are to bridge the gap that exists. It is not necessary to amend the Long Title but it is necessary for all of us, no matter which political party we represent, to commit ourselves to the provision of the significant additional resources required. That is the Government's intention.

The Minister of State referred to good governance but I would call it good housekeeping. One cannot spend what one does not have whether one is buying clothes, food and so on. One's credit card can only hold so much before one begins to receive letters. The amendment seeks to delete the words, "...to make provision consistent with the resources available to them and their obligations in relation to their allocation". This is just good housekeeping. The Minister will fight for his or her resources and then spend them. There will hopefully not be an underspend in a particular Department. While I am in agreement with many of the amendments tabled this evening, I know from my experience in Government that one cannot do other than what is in the Long Title.

Does the Minister of State know if the words "consistent with the resources available to them" appear in other legislation?

We know what they mean. Whether we are discussing a transport Bill or any other legislation, they all cost money. Will the Minister of State point to any legislation that includes these very words imposing restrictions to the effect that the Minister can only spend the resources available? We accept that one can only spend what one has, as Senator O'Rourke said. We each look for a new road, train or classroom every week. We know they cost money and that Ministers can only provide as many new classrooms or buses as resources allow. Why must these words be included in the Bill? Are these same words used in other legislation that provides for services or facilities?

I think I can answer Senator Terry's question. These words do not appear elsewhere as this legislation is resource-based not rights-based. The Senator's amendment would make it rights-based legislation whereas the Government's words make it resource-based legislation.

I have been a Member of this House for nearly eight years and do not recall this particular configuration appearing before. It is not normally necessary. As Senator O'Rourke said, if one does not have the money, one cannot spend it. This Government has chosen to specifically state this in the Bill's Long Title and to define the legislation completely as resource-based, which has been the biggest bone of contention between the disability groups and the Government. As the Minister of State said, this is a fundamental point of disagreement between the Government and the Opposition parties. Do we have rights-based or resource-based legislation? As set out clearly in the Long Title, this is resource-based legislation and will, therefore, always be the case.

I welcome the Minister of State's commitment to the provision of €900 million over five years. Perhaps it will be more, which would be great as there is much catching up to do. Be that as it may and despite whatever amount of money is spent, the Bill, which creates the long overdue framework for the development of services for people with disabilities in this country, has a resource-based ethic rather than a rights-based one as its fundamental cornerstone.

In my experience, it is a standard feature of legislation that it explicitly states there is no financial dimension to it.

Subject to the——

It would state in one of the sections that no cost is incurred by the Exchequer. The unusual feature of this Bill is that there are several Ministers involved and not just one. In other words, if we were discussing the Garda Síochána Bill, we would not need to put this stipulation into it because it is within the budget of the Garda Síochána and the Department. If we do not put it in here and if we change the Long Title to enable Ministers to make provisions without placing a restriction on them, they could spend whatever they like. Whether in disability or another area, this cannot happen. Disability is a worthy area but we cannot have a blank cheque in any area, however worthy.

We must remind ourselves about the commitment that has been evident. The Minister of State pointed out the figure of €2.9 billion, 7.5% of gross current public expenditure, which has increased three and a half times since 1997. The financial commitment is not in question because it has been demonstrated. It is a question of being practical. I do not like that this debate is being presented as rights versus resources. It is not a question of either rights or resources but rights and resources.

Rights to resources.

The rights are enshrined in the Equal Status Act and other legislation. People want equal rights. As I said on Second Stage, I have not heard anyone say they want superior rights. Equal rights are enshrined in the legislation that surrounds this area, some of which was introduced by a Labour Minister during my time in the House.

Does the Senator refer to former Minister for Equality and Law Reform, Mervyn Taylor?

Yes. There must be a stricture. The unusual dimension of this Bill is that it enables Ministers over a range of Departments whereas Bills generally deal with one particular aspect within a Department using that Department's budget.

We have discussed the issue of resources as it relates to the Bill since yesterday and I am not surprised it has arisen again. All Government activity is resource-based, as the Government can do nothing unless it has the money to do so. If there were not a reference to resources in the Long Title, I would be very suspicious. One must show one's resources if one is to carry out certain activities. As someone who works in a voluntary organisation and is fighting day and night with the Health Service Executive to try to get more money from it, I understand the complexities of getting that money. It is a difficult argument to make. Even though I would love working in the area if I could pick up the telephone and say that I need X, Y and Z, it unfortunately does not operate that way. We must do this.

I take on board what the Minister of State said about the legacy of voluntary organisations. They have been a tremendous conduit for people with disabilities through the years and were there when the Government and the money were not. They are still there. Even though it has been suggested they are not being well resourced, I am happy to say that they have been up to a point in recent years. I can say this with factual knowledge. I could give chapter and verse of situations of great improvements that have been made within our own organisation, from special needs assistants to bus escorts to various technological advancements for children doing homework and so on. It is unfair to say improvements in this area have not been made as significant improvements have occurred, particularly over the past five years. I understand where the Minister of State is coming from when he explains this to us. With the best will in the world, I say that we must have a resource-led package.

No one denies there has been a significant increase in the amount of resources spent on people with disabilities, so that is not a problem. I cannot remember any other Act where "resources allowing" was written into the Long Title. On the matter of the Bill pertaining to several Departments, what about the Children Act 2001, which spanned several Departments and required considerable resources? The resources have not yet been made available to implement the provisions of the Act but this is beside the point. We did not put in the Long Title of the Act that we would only invest whatever resources were available as we all knew this.

These words were not in the Long Title of the Mental Health Act 2001. We knew there would be trouble regarding resources but we expected resources to be made available. We were not going to say that these words were an excuse for not investing something. As the Leader said, this is about what is available and what can be provided for these people. I am well aware of the extraordinary legislation that sometimes comes from the Department of Justice, Equality and Law Reform regarding financial implications. I was utterly astonished to read the explanatory memorandum at the end of the Criminal Law Insanity Bill, which states there are no financial implications. Of course there will be difficulties regarding funds and we praise the Government for providing extra resources for this area. However, our argument is with putting an excuse into the Long Title of the Bill which is not present in any other piece of legislation that any of us can recall.

In response to Senator Terry's question, the Long Title takes its present form because it reflects the provisions contained in the Bill. This is a cross-cutting Bill, involving several Departments and, as Senator Dardis has said, it is necessary that the Long Title of the Bill reflects the provisions therein. This is one of the most complex pieces of legislation that has ever been brought before the Oireachtas. It was five years in gestation, involved 11 different Ministers and the Taoiseach has admitted that it took up more of his time than any other piece of legislation since he became a Member of the Oireachtas.

Every piece of legislation has a provision in it, in some shape or form, which states that it is subject to resources. It is stated in this manner in this legislation because of the cross-cutting nature of the Bill, reflecting the provisions therein. Senator O'Meara mentioned the issue of rights. If the Labour Party and Fine Gael were in Government tomorrow, I predict that they would not be able to introduce justiciable rights-based legislation. Justiciable rights are not in any legislation in any part of the world, with the possible exception of South Africa. Even the most forward-thinking countries like Great Britain, the United States, Canada, New Zealand, Australia and Sweden do not have justiciable rights-based legislation. It is not possible.

I examined the issue when I went into the Department, the Bill having been published at that stage. It comes down to the simple question as to whether we want the Four Courts to run the country or the Oireachtas. Senator Dardis is right in that it is not a question of either rights or resources. Senator O'Meara has posited that it is a question of either-or, but it is not. Even if one had justiciable rights-based legislation, as is the case in education, that would not guarantee proper services for people with disabilities. When one examines the experience in education, for every €1 given to people who sought educational services through the courts, €4 was paid to lawyers. If one examines the high profile cases of recent years, they did not bring about the desired results. I am convinced that people are being led astray by talk of justiciable rights by those who are propagating that idea. I have heard a large amount of uninformed comment about justiciable rights in the past six months, all of which is coming from the same source and it is wrong. It is not about rights or resources. There are rights throughout this Bill, but there is no justiciable right and I am convinced that this is in the best interests of people with disabilities. Having said that, I reiterate that the challenge for this and future Governments is to ensure that it is not necessary for people to resort to the courts to have their rights vindicated.

This Bill will underpin the phased expenditure of the money required to bridge the gaps in services that exist at present and which we all accept are urgently in need of being bridged. For that reason, it is not necessary to accept this amendment and the House should, in good faith, accept the bona fides of the Bill and the provisions it contains, as reflected in the Long Title.

Is amendment No. 57 being pressed?

Amendment put.
The Seanad divided by electronic means.

Due to problems with the electronic voting system, the vote must be taken manually.

On a point of order, is it not provided in Standing Orders that when a vote is cancelled for some reason, the bells should be rung again to allow colleagues who were unable to get to the Chamber another opportunity to do so?

The bells will ring for two minutes.

Amendment again put.
The Committee divided: Tá, 19; Níl, 31.

  • Bannon, James.
  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Paddy.
  • Coghlan, Paul.
  • Coonan, Noel.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Hayes, Brian.
  • Henry, Mary.
  • McCarthy, Michael.
  • McDowell, Derek.
  • McHugh, Joe.
  • Norris, David.
  • O’Meara, Kathleen.
  • O’Toole, Joe.
  • Phelan, John.
  • Ross, Shane.
  • Terry, Sheila.

Níl

  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Cox, Margaret.
  • Daly, Brendan.
  • Dardis, John.
  • Dooley, Timmy.
  • Glynn, Camillus.
  • Hanafin, John.
  • Hayes, Maurice.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O'Brien, Francis.
  • O'Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • Walsh, Kate.
  • White, Mary M.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Terry and O’Meara; Níl, Senators Moylan and Minihan.
Amendment declared lost.
Title agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage?

Next Tuesday.

Report Stage ordered for Tuesday, 21 June 2005.