Select Committee on Justice and Equality debate -
Wednesday, 30 Jan 2019

Disability (Miscellaneous Provisions) Bill 2016: Committee Stage

Chairman

This meeting has been convened for consideration of Committee Stage of the Disability (Miscellaneous Provisions) Bill 2016. Members are reminded of the longstanding parliamentary practice to the effect that they should not comment on, criticise or make charges against either a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I also remind people, including our friends in the Gallery, to switch off their mobile phones as it interferes with recording equipment in the room.

We are joined by the Minister of State at the Departments of Employment Affairs and Social Protection, Justice and Equality, and Health, Deputy Finian McGrath, who has special responsibility for disability issues. The Minister of State and his officials are all welcome. Before I invite the Minister of State to make his opening remarks on the Bill and before we begin to address the amendments, the Minister of State and colleagues should note that not for the first time, the Committee on Justice and Equality finds its work being compromised in some way by the fact that questions to the Minister for Justice and Equality are taking place in the Dáil Chamber at the same time. I do not know how quickly we will get through our work here this morning but members of the committee who are spokespersons on justice are obliged to be on the floor of the Dáil to deal with questions to the Minister. It is an absolutely unacceptable situation, and it is not the first time it has happened. This scheduling should not happen. I appeal to the Minister of State to address this issue after the meeting.

I invite the Minister of State to make any opening remarks on the Bill before we address the amendments.

Minister of State at the Department of Justice and Equality (Deputy Finian McGrath)

I thank the Chairman for the opportunity to address the committee. I apologise for the delay. A lot of work has been ongoing in the background in recent months. I also note the Chairman's point on the schedule and understand the difficulty that it has caused and I will deal with that later.

I am delighted to be here today before the committee, and with its assistance, to complete another stage in the legislative process and move towards enactment of the Bill. The Bill is being brought forward to give effect to Ireland’s ratification of the United Nations Convention on the Rights of Persons with Disabilities, which took place in March 2018, and I had the honour of visiting the UN at that time.

It is a small item of legislation but it is a significant part of the overall process of progressive realisation of the convention. It addresses a number of key strategic issues. First and foremost, it establishes the independent monitoring framework for the convention, which will be overseen by the Irish Human Rights and Equality Commission, IHREC, with the support of the National Disability Authority.

This week, the IHREC appointed its monitoring committee for the convention.

The composition of the committee reflects the importance of involving persons with disabilities in the monitoring process. This was a very clear statement during the week when we saw the number of people with a disability on that committee. In addition, the Bill will increase the public sector target for employment of persons with disabilities from 3% to 6% over a number of years. As Deputies will be aware, the National Disability Authority has the statutory duty to monitor annually the rate of employment of persons with disabilities in the public sector. In 2017, the employment rate was 3.5% and I am pleased to note the extent to which many public bodies have exceeded the target of 3%, with the overall number of persons with disabilities employed in the public sector increasing. This Bill will provide a mechanism to ensure a staged increase of this minimum target, reaching 6% by 2024. This is a welcome development, particularly as leadership within the public sector in this regard is a crucial step in transforming attitudes across the employment market. I accept that we have a long way to go and we also have to bring the private sector with us.

The provisions in the Bill regarding jury service are the culmination of a process started by the report of the Commission on the Status of People with Disabilities in 1996. The Civil Law (Miscellaneous Provisions) Act 2008 amended and updated the references to persons with disabilities but did not remove them. The enactment of this Bill will finally clarify the position of deaf jurors. The public sector duty obligations in the Irish Sign Language Act 2017 will provide the means to make reasonable accommodation for deaf people.

I am concerned about the funding position of the Irish Deaf Society and this is a matter I am actively pursuing. I mention it this morning because I am sure many colleagues will raise it. I hope to have a resolution by the end of the week.

The Bill will also facilitate the participation of persons with certain disabilities on juries and will remove barriers to their standing for election, improving the standard of reasonable accommodation by certain service providers.

Many of the issues addressed in the Bill are highly complex and intertwined with other legislation, thus its passage has been slower than I would have liked. I apologise again for the delays. For example, a decision was taken last year to remove the deprivation of liberty provisions to feature in a stand-alone Bill to be taken forward by the Minister of Health. Since then, the Department has organised a consultation process and received more than 50 submissions which are currently being analysed. In addition, while it was indicated on Second Stage that it was intended to bring forward three heads relating to equality and discrimination matters, I am not proceeding with them at this time because they are not related to disability or the UN Convention on the Rights of Persons with Disabilities, UNCRPD. The Department of Justice and Equality is developing an LGBT strategy and it needs to await the outcome of that process before being in a position to determine if legislative change is needed.

Work is continuing on the reforms needed for an optimum level of compliance with the convention's requirements and the progress of this Bill forms a key part of this work. In the early implementation phase, it is essential that resources are focused on the improvement and enhancement of services and not diverted into additional areas such as servicing the optional protocol before we are fully ready.

Five Government amendments are proposed today on Committee Stage. We will discuss these in due course. The opportunity is also being taken to make some minor amendments to the Assisted Decision-Making (Capacity) Act 2015, which provides a modern statutory framework to support decision-making by adults with capacity difficulties.

Detailed work is ongoing to finalise amendments on a number of issues for consideration on Report Stage. These include amendments to address the use of the phrase "unsound mind" in the Statute Book where those references potentially intrude upon the rights of the person deemed to be of "unsound mind". Deputies will appreciate this is a highly technical, complex and very sensitive area. The term "unsound mind" appears in many areas of law and the meaning in each case depends on the context so it is not a simple task to replace it with a generic provision.

The Government also intends to bring forward a Report Stage amendment to align the relevant provisions of the Social Welfare (Consolidation) Act 2005 with the Assisted Decision-Making (Capacity) Act 2015 concerning persons appointed to act on behalf of recipients or beneficiaries of social welfare payments where those people have been medically certified as being unable, for the time being, to manage their own financial affairs. An analogous amendment will be brought forward to amend to the Taxes Consolidation Act 1997 to replace the reference to a "person of unsound mind" with language that aligns with the approach taken in the Assisted Decision-Making (Capacity) Act 2015. Similarly, an amendment to the Criminal Law (Insanity) Act 2006 regarding fitness to plead at trial has been drafted and will be included on Report Stage further to consultation with the advisory counsel and the DPP.

I will bring forward further amendments to the Assisted Decision-Making (Capacity) Act 2015. Work is ongoing to establish the decision support service and draft the necessary codes of practice. In the course of implementation it has been necessary to make amendments to the 2015 Act to correct initial drafting errors and to align the legislation with operational experience. I look forward to working with the committee to refine the Bill and improve the lives of people with disabilities.

Chairman

Before proceeding with the amendments, I must advise members that I was given notice by the Bills Office last evening in respect of a number of amendments. It is the responsibility of the Chair in upholding Standing Orders to sign off on the notification of the disallowance of amendments that are deemed not to be in order. However, on first perusal, for which I only had an opportunity late last night, I was conflicted about some of the points made in the briefing note directing the Chair to disallow certain amendments. For example, my experience and knowledge of the provision of polling stations in my constituency is that they are not only schools. I have some question in my mind in respect of "no rent charged". Church halls, private halls and so on are all employed as polling stations. I am not convinced by the argument that some of the amendments presented would subsequently constitute a potential charge on the Exchequer.

As a Dáil Deputy and as Chair of this committee, I am anxious at all times that members, Government and Opposition, have the opportunity to properly play their full part in the construct and passage of all legislation. I believe I have done so fairly and equitably since I took on the position of Chair of this committee. However, I believe an inordinate effort is made to find reason to disallow reasonable amendments that could make a critical difference to legislation and, in the case of this Bill, to the daily life of people with disabilities and their reasonable expectations in respect of the affirmation of rights and equality.

Without an opportunity to engage further on the note which I received very late yesterday evening, I am exercising my position as Chairman and ruling that the amendments will be allowed to proceed today on Committee Stage. The ultimate determiner in all of this is the Ceann Comhairle. That judgment can be reserved by the Ceann Comhairle on Report Stage. I have had no facility to engage with the Ceann Comhairle on these matters other than very briefly through the clerk to the committee. I will not willy-nilly be the puppet for any direction in respect of very important matters concerning a cohort of people, those with disabilities, whom I hold in very high regard.

Therefore, although one of the amendments before us is quite specific, I am not going to make fish of one and flesh of another. I propose to proceed and take the amendments as tabled. I will engage with whoever wishes to engage with me subsequently on the decision I made this morning. It is up to members to proceed to Report Stage with their amendments, whereupon, when adequate time is given to the Ceann Comhairle and others to peruse and make an assessment - something I did not have - they can make a decision. It is up to members in the intervening period to make the case as to the veracity and applicability of their respective amendments. It is the position I am taking and I am putting the Minister of State and members on notice of it. I would appreciate it if the members could accept the Chair's ruling in this instance.

Deputy Finian McGrath

I totally understand the Chairman's position and I know his track record on disability matters. You mentioned church, community and private halls, and that issue is out there as well. Ruling on amendments is a matter for the Bills Office.

Chairman

The office can advise but I can quote from the guidelines for Chairs issued in June 2016, as I have taken the time and trouble to read it. It states clearly, on page three of eight, that the "decision of the Chairman regarding the disallowance of amendments is final". I have highlighted it and I rest my case on that decision. I ask members not to elongate or prolong unnecessarily address of the amendments as indicated. We have much work to do and other members have other responsibilities as the morning will proceed.

Deputy Clare Daly

I recognise the Chairman has not taken the decision lightly and I recognise it is a serious and probably unprecedented decision. The Chairman is absolutely right as we have ratified the United Nations Convention on the Rights of Persons with Disabilities, UNCRPD, and that comes with a cost. If we are to ratify it in a meaningful way, we will have to take steps that are meaningful. What we are seeing is becoming a bit of a trend and we saw it with the recognition of Irish Sign Language, ISL, and now the deaf community is in jeopardy because of finances. The very mechanism to exercise its access to ISL is being taken away. I appreciate the Chairman's stance on this.

Chairman

This is my final contribution on the matter. I had no reasonable time to make a judgment on the amendments other than by giving them a cursory reading. I am in a position to contest the views presented in most of these. In the absence of the opportunity to engage further, I do not intend, as Chairman of the committee, to thwart an effort to further underscore the rights of people with disabilities in the passage of this legislation. I intend to proceed on that basis.

Members will note a number of groupings have been advised. Amendments No. 1 may be discussed with amendment No. 2, amendment No. 6 may be discussed with amendment No. 7, amendment 14 may be discussed with amendment No. 17, and all the others will be taken individually as we proceed. Without further ado, I propose to commence examination of the Bill.

SECTION 1

Chairman

If the question on amendment No. 1 is agreed, amendment No. 2 cannot be moved. The amendments will be discussed together.

Deputy Jack Chambers

I move amendment No. 1:

In page 3, lines 20 and 21, to delete "have sufficient mental or intellectual capacity to serve as a juror" and substitute "possess the decision-making capacity to exercise the functions of a member of a jury".

The Bill states that a person who does not, in the opinion of the court, have "sufficient mental or intellectual capacity to serve as a juror" would not be eligible for jury service. However, in the Assisted Decision-Making (Capacity) Act 2015, a person's capacity is assessed functionally and on the basis of his or her ability to understand, at a time the decision is to be made, the nature and consequence of the decision to be made by him or her in the context of the available choices at the time. It is important that a person would enjoy the presumption of capacity to make decisions. I know interest groups, such as Inclusion Ireland and others, have said it is important for us to ensure this miscellaneous Bill is consistent with the assisted decision-making legislation. It is something that I recommend, and we support. We need to ensure the legislation fits what will happen in this space. It is a simple amendment and something we will push.

Deputy Clare Daly

This pertains to the Juries Act 1976. I will refer to section 1(1)(a) of this Bill. I have not yet tabled an amendment to this part of the Bill but I will do so. It relates to the provision of Irish Sign Language, ISL, interpreters to allow a deaf person to serve on a jury. I welcome that greatly. We should include those who are hard of hearing with those who are deaf. Additionally, an interpreter is not necessarily the only service that could be provided to a deaf person or a person hard of hearing to perform jury service effectively. There are people who are hard of hearing or those with cochlear implants who can use technologies like captioning and so on. The Bill as drafted does not allow for that. Not all deaf people can read English and not all have ISL, for many reasons. We must go beyond just ISL and look at the use of technology. It is the first element of the amendment.

The second part was explained by Deputy Chambers. It is critical that language and how we approach these matters is dealt with properly. The assisted decision-making legislation moves away from a status approach to capacity based on having a disability and moves towards a functional approach in which the presumption of capacity is there until it is clearly not the case. Capacity is based on ability to understand at the time a decision is made and in context with the available choices at the time. We are removing the certainty of the statement "does not have mental capacity". It is a case of saying it might be the case at a particular time but not necessarily forever that these people might not be in a position to possess the capacity to engage in jury service. This is key and language is not neutral. It suggests there is a constant standard for mental capacity before it is needed, which would be the day of jury service. People may be told they cannot serve because they will not in future have the capacity to do so. That language is too definite.

The assisted decision-making legislation is clear about the need to assess capacity and understand what can be done at a particular time. It is what we are looking at. There is nuanced difference between our amendment and the amendment proposed by Deputy Ó Laoghaire. I would prefer for ours to be accepted, but if it is not, the alternative should be accepted.

Chairman

I have no doubt the Minister of State is well disposed to that argument.

Deputy Donnchadh Ó Laoghaire

The amendments are similar in their intentions. The ability to serve on a jury is something most of us would consider an ordinary and democratic right, but we need to improve the presumption in favour of the person being able to participate in a jury. I will certainly not oppose the first amendment but I have a slight preference for my own because of the specific reference to reasonable accommodation, which is important. I will listen to the Minister of State's comments and I will not oppose the first amendment. I will take on board the feedback of other Deputies as well.

Deputy Mick Wallace

My points will be pretty similar to those aired. The assisted decision-making legislation lists jury duty as one of the exemptions to the provisions of the Act, which is a problem as it contravenes the spirit of the United Nations Convention on the Rights of Persons with Disabilities, especially Article 12.2. It affects the ability of persons with disabilities to participate in all aspects of life. Section 1 of the Bill before us attempts to address this with respect to jury service but it falls short. It proposes to amend existing legislation on who is defined as being incapable of serving on a jury and it seeks to ensure compliance with Article 29 of the United Nations Convention on the Rights of Persons with Disabilities, which guarantees the right to equal participation in political and public life.

The idea of participation is key and we are supposed to be facilitating participation of people with disabilities.

People with disabilities should be presumed to have the capacity to serve on a jury, to carry out jury duty. People with disabilities are rights holders first and foremost and the Convention on the Rights of Persons with Disabilities, CRPD, is clear that they are entitled to be integrated socially and politically. While the Bill attempts in section 1 to rectify the problem in the Assisted Decision-Making (Capacity) Act 2015 on jury duty, and that is to be welcomed, it is in fact, as I understand it, creating a new problem. It is undermining some of the very positive aspects of the 2015 Act. The wording of section 1 on jury duty seems to be contrary to the provisions of the Assisted Decision-Making Act (Capacity) 2015 where capacity is defined as "decision-making capacity" and refers to a person's ability to understand at the time that a decision is to be made the nature and consequences of that decision in the context of the available choices at that time. The Department of Justice and Equality's website describes the Act as follows:

The Act proposes to change the law from the current all or nothing status approach to a flexible functional definition, whereby capacity is assessed only in relation to the matter in question and only at the time in question. If a person is found to lack decision-making capacity in one matter, this will not necessarily mean that s/he also lacks capacity in another matter. The Act recognises that capacity can fluctuate in certain cases.

As the Department defines it, a person does not lack capacity to make a decision, rather he or she is presumed to have such capacity. This is the spirit of section 8 of the Assisted Decision-Making (Capacity) Act 2015. A person may lack capacity to make a particular decision at a particular time or his or her capacity may be in doubt but this capacity may be regained at a different time and for a different decision. However, the wording we are addressing here, that the person must "have sufficient mental or intellectual capacity to serve as a juror", brings us back to an outdated understanding of disability rights very much at odds with the positive functional approach of the Assisted Decision-Making (Capacity) Act 2015. It assesses a person's decision-making capacity simply based on the fact that he or she has a disability, which is exactly the kind of all or nothing approach from which we are supposed to have moved on.

The Assisted Decision-Making (Capacity) Act 2015 already provides a statutory framework to support decision-making by adults who have difficulty making decisions without help and to enable them to fully participate in all aspects of public life. The provision of reasonable accommodation, in Deputy Ó Laoghaire's amendment No. 2, is already provided for in the existing Act, from our understanding.

Deputy Finian McGrath

This amendment addresses important issues of capacity and participation that go to the heart of the convention, and I thank the Deputies for bringing it forward. The amendment to the Juries Act 1976 proposed by the Government in section 1 of the Bill as published replaces a provision that prohibits a category of persons from performing jury duty with a functional test of mental or intellectual capacity. The category of persons currently excluded are those who suffer from, or have suffered from, mental illness or mental disability which either causes them to be resident in a hospital or similar institution or to regularly attend for treatment by a medical practitioner. This represents a status approach to the determination of capacity, and is precisely what we are aiming to move away from in the implementation of the Convention and the development of the Assisted Decision-Making (Capacity) 2015 legislation.

In the Bill as drafted there is a Government amendment that changes the exclusion to read as follows: "A person who, does not, in the opinion of the court, have sufficient mental or intellectual capacity to serve as a juror." The amendments put forward by the Deputies focus on decision-making capacity rather than mental or intellectual capacity in one case. The other amendment focuses on the provision of reasonable accommodation for jurors.

As regards the reference to decision-making capacity, I welcome this clarification as the term is potentially more relevant in the context of the new approach to capacity and decision-making outlined in the Assisted Decision-Making (Capacity) Act 2015. However, we are balancing two equally fundamental rights here – the rights of persons with disabilities to fully participate in all aspects of society, and the right to a fair trial. For this reason, absolute precision is required.

Furthermore, I am advised by the Office of the Attorney General that a number of legal issues arise from the draft amendment, the most significant of which is that jury duty does not fall within the remit of the Assisted Decision-Making (Capacity) Act 2015. Section 138(i) of the Assisted Decision-Making (Capacity) Act 2015 specifically states that the Act does not purport to change the law in relation to capacity or consent for serving as a member of a jury. The justice sector working group on jury service is currently examining the issues raised in the report of the Law Reform Commission on jury service published in 2013.

Deputies Wallace, Ó Laoghaire and Chambers have hit the nail on the head about the rights to services, and the debate in the past two weeks about the Irish Deaf Society. I am aware of the financial difficulties the society is experiencing and the concerns about its future sustainability. There are several funding options. I am actively involved in this and I hope to resolve it during the week. The Deputies' early point is fundamental. When we talk about people with disabilities and their rights we also have to ensure they have services. It is also important to note that the largest provider of such services is the National Association for the Deaf which receives significant funding, for example, we gave it €6.7 million in 2018. There are issues such as that which must be dealt with and I will deal with them. I take the Deputies' points on the rights of people with disabilities.

I will consider the legal implications of amendment No. 1 for Report Stage because the Assisted Decision-Making (Capacity) Act 2015 will require amendments. I am likely to support it on Report Stage.

Amendment No. 2 raises a complex legal issue and I would like Deputy Ó Laoghaire to let the juries working group consider it because it gives rise to many complicated legal issues.

Deputy Jack Chambers

It happens frequently on Committee Stage of various Bills that members are given a commitment about Report Stage. Would it not be better to insert something now that the Minister of State is potentially willing to accept on Report Stage and for him then to come back with the legal advice on Report Stage and propose an amendment to delete it, if that is his advice? If he is willing to support a change on Report Stage, he should just accept the amendment now.

Deputy Clare Daly

I agree with that. We should put it in now. I take issue with the Minister of State's point about a citizen's right to a fair trial as if somehow the measure we are proposing or debating on these issues would undermine a citizen's right to a fair trial by having somebody with disabilities on the jury. The precise point of the amendment is to remove the wording which states "have sufficient mental or intellectual capacity" as if it were fixed for all time. We are proposing to insert the words "possess the decision-making capacity to exercise the functions". With our amendment the person on the jury would have to have the decision-making capacity to participate and therefore ensure a fair trial. The concern does not arise in this instance.

Deputy Mick Wallace

I would back up Deputy Chambers' argument. It is a rational one and I do not see the rationale for not pressing ahead with it today.

Separately, it is good to hear that the Minister of State is hopeful that the Irish Deaf Society funding issue will be sorted this week. Why are things allowed to get to this point? The people from the Irish Deaf Society who contacted us were pretty upset about the approach of Government and while I am not saying it is the Minister of State's fault, I wonder if he can explain it. He tells us now that he will probably sort it this week but I do not understand the rationale of letting it get to this point.

Can the Minister of State tell me?

Deputy Finian McGrath

On the points made by Deputy Jack Chambers, there are a number of drafting issues that have to be resolved. I am guided by the legal advice I have been given, and legal advice has to come first for these amendments.

Deputy Clare Daly made a point about fair trials. It is a very complex situation, and there is a lot of work that has to be done in this area.

On Deputy Wallace's point about the Irish Deaf Society, it is important that people realise that not only were the Deputy and the society upset, but I was upset as well. There have been a few differences of opinion on this issue in recent weeks. The Irish Deaf Society had a problem last year and we provided bridging funding of €195,000. The plan was that that money was to sort it out for 2018 and that a proper plan would be put in place for 2019. I told people to get on with it, but it did not happen in the way I wanted it to happen, and it then exploded. The way that happened was unacceptable, and I have made that point twice at two meetings of the Government. Different sections have to get their act together when it comes to deciding on core funding, which will be decided over the next couple of days. I am particularly annoyed because the Irish Deaf Society, which the Members here present all supported, was very supportive during the debate on the Irish Sign Language Bill, which was brought through the Houses by Senator Mark Daly, among others. We worked together for six or seven months, along with Gerry Maguire, my adviser, and the Department of Justice and Equality. Many compromises were made by all sides. Part of my agenda was that the Irish Deaf Society be properly supported and funded, but that is another issue. The matter will be resolved this week, and there will be stable funding in place from now on.

Chairman

In addition to what the Minister of State has mentioned, the Joint Committee on Justice and Equality held a considerable number of hearings and produced a report. Indeed, it was the last report presented in advance of the final passage of the Irish Sign Language Bill which recognised Irish Sign Language as an official language of this State. We are very proud of that work.

Deputy Finian McGrath

I recognise the work of the Joint Committee on Justice and Equality on issues relating to disability issues over many years.

Chairman

Is the amendment being pressed?

Deputy Jack Chambers

Yes.

Chairman

Does the Minister of State wish to respond? Would he like to revisit his earlier indication before we proceed to call-----

Deputy Finian McGrath

I am likely to support it on Report Stage, which is the point Deputy Jack Chambers is making. It is a matter of head and heart.

(Interruptions).

Deputy Finian McGrath

I have to say no at the moment and seek legal advice.

Amendment put and declared carried.

Amendment No. 2 not moved

Section 1, as amended, agreed to.

SECTION 2

Deputy Donnchadh Ó Laoghaire

I move amendment No. 3:

In page 4, between lines 1 and 2, to insert the following:

“(1) The Act of 1992 is amended—

(a) in section 28 by the substitution of the following for subsection (1A):

“(1A) Each local authority shall, in making a scheme under this section, appoint as polling places only such areas as shall allow the returning officer to provide polling stations which are accessible to wheelchair users.”,

and

(b) by the repeal of section 28(5A).

I appreciate the ruling. It is wise and sensible. We have come up against this issue regularly, whether on the basis the amendments place a charge on the Exchequer, they are not adequate or are irrelevant to the subject of the Bill. Amendments can be reasonably ruled out of order, but perfectly sensible and relevant amendments are being ruled out of order too often.

These amendments relate to what I believe to be the most fundamental of democratic rights, which is the right to vote. It is the case that there are many polling stations that are not accessible to all of the public. This is not the kind of public service that one can go and get elsewhere. If one cannot access the polling station to which he or she has been allocated there is no alternative open to him or her. Unfortunately, this is not an uncommon phenomenon. In the 2016 election there were 15 polling stations in Galway, ten in Kerry, five in Carlow-Kilkenny and four in Dublin which were not wheelchair accessible, and that created considerable difficulty for a number of individuals. These two amendments seek to put that right and to provide that all polling stations should be wheelchair accessible. That is reasonable and fair, and very much in keeping with the spirit of the Bill.

Deputy Finian McGrath

This amendment addresses both articles 8 and 29 of the convention, dealing with accessibility and participation in political and public life. The Deputy mentioned some examples of polling stations that are not accessible. That is unacceptable to me as the Minister of State with responsibility in this area. While I am completely in agreement with the spirit of the amendment proposed I have a number of concerns at the precise manner in which it has been drafted, and I cannot support it as a result. The proposed amendment cuts across the broader reform of electoral law currently being undertaken by my colleague, the Minister of State at the Department of Housing, Planning and Local Government, Deputy Phelan. As the Deputy may be aware, the Minister of State, Deputy Phelan has recently established a working group on disability voting, the work of which is ongoing. The group comprises key stakeholders, representing people with disability. Members of this group include representatives from the National Disabilities Authority, the Disability Federation of Ireland, the National Council for the Blind, the Blind Legal Alliance and the Irish Wheelchair Association. The working group is dominated by stakeholders. Its terms of reference provide that its role is to examine and to make recommendations on issues that arise under a number of headings, including improving accessibility to polling stations for voters with physical disabilities, particularly wheelchair users, with the goal for all polling stations to be fully accessible as soon as possible. The Minister of State, Deputy Phelan, has shown a clear commitment to addressing this issue to ensure that all polling stations will be fully accessible as soon as possible. Work is already under way to this end. The expertise available within the group will provide a clear understanding of the actions required to ensure that polling stations are accessible.

I hope the committee will agree that it is preferable not to undertake piecemeal reform in this area but rather to implement a reform process that is solidly rooted in the perspective of people with disabilities who are directly affected. Reform of electoral law is already under way, and we should let it move along strongly.

Chairman

I suggest that we should not press the amendments which were indicated as potentially being out of order. I use the word "potentially" deliberately. We have had an opportunity to engage with it today.

Deputy Jack Chambers

May I make a point?

Chairman

I will finish my point. I am not sure that members are prepared to participate because they were notified that the amendments were not in order. I am trying to be as accommodating as possible. I appreciate that the Minister had his speaking notes, in any event.

I will leave it to members to make that determination. Critically, they will have the opportunity to retable their amendments on Report Stage when the Ceann Comhairle, who is the final arbiter in these matters, can make his judgment and decision.

Deputy Jack Chambers

I will support the amendment if it is pressed. The Government is overburdened with working groups, which delay reform across many areas of disability. In many cases, it is bureaucracy talking to bureaucracy. This is a simple amendment to direct local authorities to do what they should do anyway. It would have positive effects for those who need access. I do not know why a working group is needed to do something relatively simple. If local authorities are directed by law to do it, they have enough staff to change their polling schemes quickly and appropriately. A complex working group is not needed to address the area. I support the amendment and consider that it should be pressed.

Chairman

Does Deputy Ó Laoghaire wish to come back on the Minister of State's remarks?

Deputy Donnchadh Ó Laoghaire

I am inclined to press the amendment. It is something that comes up every so often but we are always told there is a review under way and that nothing can be done in the meantime. That excuse can be used to cover a multitude. We saw it in the context of civil law reform recently where we were told something could not be contemplated as a review was ongoing which might recommend something. As the Minister of State said and as Deputy Jack Chambers reflected, this should be the position as it stands. People should not be in a position where they may be denied the right to vote or where voting may be made difficult for them because polling stations are practically or completely inaccessible. I am minded to press the amendment unless the Chairman is certain it will create a difficulty for the committee.

Chairman

No. It is new ground but the Chair is committed. Either way, I have no issue with that whatsoever.

Deputy Donnchadh Ó Laoghaire

It is an important matter. In any event, I would be surprised if the review group came back and said it would be fine if some polling stations were inaccessible.

Chairman

Does the Minister of State have anything further to say?

Deputy Finian McGrath

I do not disagree with the Deputies on the points they raised. While I understand the frustration with the working group, the problem is also one we had in respect of the capacity issue. We placed advertisements in newspapers and received 50 submissions. The more that came in, the more people became involved and the more complex everything became. At the same time, if we did not consult the Irish Wheelchair Association, the Disability Federation of Ireland and other groups, I would be in the firing line. On the amendments, I note that local authorities have flexibility to improve accessibility, which some have done while others remain weak, as Deputies pointed out. My concern is that there are significant legal issues with the way in which the amendment is drafted, which means I cannot support it.

Amendment put and declared carried.

Deputy Donnchadh Ó Laoghaire

I move amendment No. 4:

In page 4, between lines 2 and 3, to insert the following:

"(3) Section 94 of the Act of 1992 is amended—

(a) by the substitution of the following for subsection (1A):

"(1A) Polling stations provided by the returning officer shall be accessible to wheelchair users.",

and

(b) by the repeal of subsection (3A).".

Amendment put and declared carried.

Section 2, as amended, agreed to.

NEW SECTION

Deputy Jack Chambers

I move amendment No. 5:

In page 4, between lines 2 and 3, to insert the following:

"Amendment of section 3 of Referendum Act 1998

3. Section 3 of the Referendum Act 1998 is amended by the substitution of the following for subsection (1):

"(1) The Commission shall have, in addition to any functions conferred on it by any other provision of this Act, the following principal functions in relation to the referendum in respect of which it is established:

(a) to prepare statements containing a general explanation of the subject matter of the proposal and of the text thereof in the relevant Act and any other information relating to those matters that the Commission considers appropriate;

(b) to prepare statements that are as far as practicable accessible to persons with a disability;

(c) to publish and distribute those statements in such manner and by such means including the use of television, radio and other electronic media as the Commission considers most likely to bring them to the attention of the electorate and to ensure as far as practicable that the means employed enable those with a sight or hearing disability to read or hear the statements concerned;

(d) to promote public awareness of the referendum and encourage the electorate to vote at the poll.".".

The aim of the amendment is to insert a new subsection into section 3 of the Referendum Act 1998. We have discussed the need to make information on referenda properly accessible to people with disabilities. As such, it is important to integrate provisions in this regard in the Act to give the Referendum Commission a mandate to ensure that occurs. The amendment proposes to include in section 3 a requirement to publish statements that are as far as practicable accessible to persons with a disability, to publish and distribute those statements to various media and to promote public awareness of a referendum and encourage the electorate to vote at the poll. It adds to what is there. In the spirit of disability reform, it is important to ensure information is put out there in an accessible way and to provide the commission with a positive mandate to ensure it reaches everyone. The commission should be required to go that extra yard to communicate that information to those who may not currently receive it. It is a simple amendment and one which is in keeping with the spirit of the Bill. I hope the Minister of State will support it.

Deputy Mick Wallace

Section 3 removes the reference to section 41 of the Electoral Acts to "unsound mind" in respect of a person standing for election to the Dáil or Seanad. This is obviously welcome. The UN committee on the rights of persons with disabilities has urged that all stages of an election should be made fully accessible, including the political campaigns around them. Our amendment, as proposed by Inclusion Ireland, will guarantee an equal right for people with disabilities to participate in political and public life.

Deputy Finian McGrath

I share the concern of the Deputies who have tabled the amendment that information provided to voters in a referendum should be accessible and easy to understand. However, this concern is addressed through current practices. In line with its existing duties under the Referendum Act 1998, the Referendum Commission prepares and provides information on referenda for persons with disabilities, including in easy-to-read format for people with intellectual disabilities. It is important to note that. Given that the commission is doing this work, which has become standard practice, I do not consider it necessary to amend the Act.

There are further technical issues with the proposed amendment. The amendment proposes the deletion from section 3(1)(a) of the Act of the words "one or more" after "prepare" so that the section provides that the commission shall prepare statements. This means the commission would be forced to prepare multiple statements when it might not be appropriate or necessary to do so.

The important issue is that the Department of Housing, Planning and Local Government commenced a public consultation process recently on the regulatory impact assessment relating to the establishment of an electoral commission. The assessment sets out a number of options for establishing a commission, including the functions that might be assigned to it. Following any Government decision on a preferred option for the establishment of an electoral commission, work will commence on the drafting of an electoral commission Bill. That Bill would be the appropriate mechanism through which to provide for people with disabilities in respect of electoral matters. I understand the aim of Deputies in proposing the amendment and support the principles raised by them. We need to get more people with disabilities in politics, whether in local or national government or in the Seanad, to advocate directly on their particular issues. However, the Deputies will understand the reasons I cannot support the amendment.

Deputy Jack Chambers

I do not accept that the amendment would complicate the work of the Referendum Commission. It seeks to go further than what is there at the moment. If we are trying to keep within the spirit of the Bill, the commission should be mandated to go the extra yard. None of its work up to now has sought to properly communicate the message to people with disabilities and ensure that voting is promoted properly and the amendment mandates the commission to do that.

Deputy Finian McGrath

I see what the Deputy is up to. We must push forward to ensure that more people with disabilities can go forward and get involved in politics and lobbying but the Referendum Act 1998 provides for the preparation of this information on referendums for people with disabilities, including an easy-to-read format for people with intellectual disabilities. That is something I have seen used regularly in the disability sector, particularly the easy-to-read format for people with intellectual disabilities. They have found it helpful and that has increased the participation of people with disabilities in elections. We have a long way to go and I accept the points made.

Chairman

Is the amendment being pressed?

Deputy Jack Chambers

Yes.

Amendment put and declared carried.

SECTION 3

Chairman

Amendments Nos. 6 and 7 are related and will be discussed together.

Deputy Finian McGrath

I move amendment No. 6:

In page 4, line 25, to delete "Every person" and substitute "A person".

I hope I win this one. The section makes two amendments to the National Disability Authority, NDA. It makes provision for the NDA to play a role in a monitoring mechanism for the UN Convention on the Rights of Persons with Disabilities. It also provides for staff of the NDA to become civil servants of the State. This is a technical drafting amendment, which seeks to align the current provision better with the section as a whole. The term "Every person" is replaced by "A person". It is a minor amendment that I am making on the advice of the Office of the Parliamentary Counsel to ensure a consistent approach throughout the section. I stress that the change in the status of the staff of the NDA will not in any way compromise the authority's independence. As the committee will be aware, the Irish Human Rights and Equality Commission, IHREC, enjoys full independence in its role notwithstanding the fact that its staff are civil servants of the State. I intend to bring forward a further amendment to this section on Report Stage, which will deal with the transfer of pension liabilities for the staff of the NDA.

Amendment agreed to.

Deputy Finian McGrath

I move amendment No. 7:

In page 5, line 38, to delete "applies" and substitute the following:

"applies, and in such case, a reference in this section to "appointed day" in relation to a person means the day appointed under this paragraph in respect of the category or grade of staff to which the person belongs".

Amendment agreed to.

Section 3, as amended, agreed to.

SECTION 4

Deputy Donnchadh Ó Laoghaire

I move amendment No. 8:

In page 6, lines 38 to 40, to delete all words from and including "unless" in line 38 down to and including "question" in line 40.

I shall not press my amendment but I am interested in the Minister of State's view on it. It seems that in respect of the amendment to section 4 of the Equal Status Act 2000, the final paragraph seems to be excessively qualified. I am not sure what the Minister of State thinks about that. Perhaps it allows a bit too much wriggle room. As I said, I will not press the amendment. I simply wish to make that point and give the Minister of State the opportunity to respond.

Deputy Finian McGrath

Section 4, as drafted, deals with reasonable accommodation for persons with disabilities. Reasonable accommodation are practical changes that service providers have to make so that people with disabilities can obtain and use all kinds of services on an equal basis with others. The convention provides that reasonable accommodation be provided for people with disabilities in the areas of employment and provision of services provided the cost does not exceed a disproportionate cost. The amendment proposed by the Deputy seeks to eliminate the standard of disproportionate cost altogether. This is problematic for a number of reasons, the most fundamental of which is that it is liable to incur constitutional challenge. The Supreme Court decided in an Article 26 referral of the Employment Equality Bill 1996 that it would be unconstitutional to impose such a requirement where the cost exceeds a nominal cost. The Supreme Court decision hinges on the private property protection provisions of the Constitution. The Attorney General has advised that it would not be appropriate to apply the disproportionate burden obligation in the case of commercial bodies whose activities are regulated for quality of service, viz. banks, insurance companies, telecommunications and transport providers and credit unions. To eliminate the maximum standard altogether would create a substantial risk of challenge and for this reason, I propose that the amendment be withdrawn.

Deputy Jim O'Callaghan

I am glad the Deputy is not pressing this amendment because I agree with the Minister of State. The amendment would make section 4 excessively restrictive. I acknowledge the Deputy is concerned that it may be too qualified but if the provision at the end of section 2A is deleted, it would be unconstitutional. It is just stating that it shall not be deemed reasonable if special treatment or facilities are not provided. There must be some wriggle room for it.

Deputy Donnchadh Ó Laoghaire

I will not press the amendment. As much as anything else, it is an opportunity to debate this and tease it out. I would appreciate it if the Minister of State would consider it again and see if there is any possibility that it might be made a bit more difficult for people to squeeze out of their obligations - not to the point of being unconstitutional. If he will examine that, I am happy to withdraw the amendment.

Deputy Finian McGrath

Disproportionate burden is the standard provided in the convention so from my point of view, it would be very risky to remove the standard.

Amendment, by leave, withdrawn.

Section 4 agreed to.

NEW SECTION

Chairman

I wish to advise that acceptance of amendment No. 9 involves the deletion of section 5.

Deputy Finian McGrath

I move amendment No. 5:

In page 7, between lines 7 and 8, to insert the following:

"Amendment of Disability Act 2005

5. The Disability Act 2005 is amended—

(a) in section 46(3), by the substitution of "members, within the meaning of section 3(1) of the Garda Síochána Act 2005, of the Garda Síochána" for "the Garda Síochána", and

(b) by the substitution of the following for section 47(4):

"(4) If no compliance targets stand prescribed under subsection (3) in relation to a public body, the body shall ensure, unless there is good reason to the contrary, that—

(a) for the period from the date of commencement of section 5(b) of the Disability (Miscellaneous Provisions) Act 2019 up to and including 31 December 2019, not less than 3 per cent of the persons employed by it are persons with disabilities,

(b) for the period from 1 January 2020 up to and including 31 December 2021, not less than 4 per cent of the persons employed by it are persons with disabilities,

(c) for the period from 1 January 2022 up to and including 31 December 2023, not less than 5 per cent of the persons employed by it are persons with disabilities, and

(d) on and from 1 January 2024, not less than 6 per cent of the persons employed by it are persons with disabilities.".".

This amendment would insert a new section that, if agreed, would replace section 5, as initiated. The proposed amendment would make two changes to the Disability Act 2005. One relates to An Garda Síochána and the other to the public service employment quota for persons with disabilities. The first change, which was confirmed on Second Stage, brings civilian staff of An Garda Síochána back within the terms of Part 5 of the Disability Act, providing for a public sector employment quota for people with disabilities. This group of Civil Service staff was inadvertently removed from the scope of Part 5 by the enactment of the Garda Síochána Act 2005. In accordance with this amendment, the Disability Act would also be amended to increase the employment target of persons with disabilities in the public sector from 3% to 6% on a phased basis by 2024.

A staggered approach is now proposed as follows. From 1 January 2020 to 31 December 2021, the target will be 4%. From 1 January 2022 to 31 December 2023, the target will be 5%. From 1 January 2024, the target will be 6%. The basis for these provisions is a Government decision of 2015 on foot of a recommendation in the comprehensive employment strategy to increase public service employment from 3% to 6%. The figure of 6% and the staggered approach were recommended by the NDA, which is the key adviser to the Government on disability policy and practice. The staged approach facilitates capacity building in respect of continued improvements in employment levels.

The NDA monitors the progress of public bodies in achieving the targets and works with Departments and agencies to advise on ways to improve policies and practices in order to meet them. It will continue to have this role following the introduction of the new targets. If the revised targets are agreed by the Oireachtas and enshrined in legislation, they will represent a significant advance for people with disabilities and provide them with significantly more employment opportunities in the public service. As such, they have the potential to transform the lives of many people with disabilities who can obtain good quality and secure employment. Like my colleagues on this committee, I feel strongly that while we have made a major dent in general employment, we must also make a major dent on unemployment among people with disabilities. We have a lot of quality people in the disabilities sector who want jobs. While we have taken steps to assist them in respect of welfare payments and hours of work, we must also consider the potential within the public and private sectors to provide more employment for them

Deputy Jack Chambers

I support the amendment. What is the remedy if these targets are missed? There is obviously a macro incentive for the public service to increase the percentage in employment but what is the remedy for a person with a disability on a micro level? At the organisational level of Department or State agency, they will displace the macro incentive to someone else, as it is a general percentage. Has the Minister of State considered specifying additional organisational targets so that the macro target can be reached?

Deputy Finian McGrath

The NDA will monitor and report on progress in respect of employment. I have also set up a team under the national disability inclusion strategy, which meets every couple of months. I bring in officials from every Department and we sit around the table and ask what they have done on disabilities over the previous three or four months. There is accountability to me as Minister of State and it is up to me to drive the process forward. Some Departments have a good record and are above the 3.5% rate. Some are in that zone but I want to get them up to 4% and 5%. The accountability is directly to me and to the Secretaries General of the Departments. There is also accountability at Cabinet level. A point I make at Cabinet meetings is that it is not just the Minister of State with responsibility for disabilities who has to be involved in supporting people with disabilities. Every Department represented at the Cabinet table must bring something to it to develop and support people with disabilities. We have a couple of thousand people with disabilities working in different Departments, including the Departments of Employment Affairs and Social Protection, Education and Skills, and Health. I want that number increased on a phased basis. That is the way I do it. The accountability is to me, Secretaries General and, ultimately, to Cabinet in a broader sense. It is up to us to drive this forward while the NDA monitors and reports on progress. It clips our wings every now and again, let us be honest.

Amendment agreed to.

Section 5 deleted.

NEW SECTION

Deputy Donnchadh Ó Laoghaire

I move amendment No. 10:

In page 7, between lines 8 and 9, to insert the following:

"5. (1) The Disability Act 2005 is amended by the insertion of the following after section 6:

"Transposition of Article 14(2) of the UNCRPD

6A. The State shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.".".

The amendment seeks simply to transpose Article 14.2 of the UNCRPD into the Disability Act 2005. It is an important statement. It is important to ensure there is consistency between the legislation and our international obligations and the provision should be included in primary legislation. The principles should be consistent with our domestic law and what we are trying to achieve through this legislation.

Deputy Finian McGrath

It is of the utmost importance that the essence of Article 14.2 is adequately provided for in primary legislation. In this regard, the Department feels strongly about, and continues to prioritise, the development of legislation on the deprivation of liberty safeguards. While it was initially intended to include a deprivation of liberty safeguard on Committee Stage, the importance of provisions in this regard led the Government to agree early last year to bring them forward in a stand-alone Bill sponsored by the Minister for Health. This was a response to concerns raised about the opportunity for an in-depth and meaningful consultation on this important topic. As the Deputy will be aware, a public consultation on the draft deprivation of liberty safeguard legislative proposals concluded in May 2018. The Department of Health is engaged in revising the draft proposals and working hard to resolve the complicated policy issues that have arisen. Deprivation of liberty is a complex matter and a great deal of information has been provided in the submissions made. The Department and I feel strongly that it is necessary to deal with such complexity in a stand-alone Bill.

Chairman

As I indicated in respect of amendment No. 9, its acceptance entailed the deletion of section 5. I am teasing out in my own mind, therefore, the impact of amendment No. 10. It might be appropriate to resubmit on Report Stage to allow for an examination of that situation. The decision we have just taken, unanimously, on amendment No. 9 and section 5 could be ultra vires. I am open to any other opinion and guidance from colleagues on the committee or the Minister of State.

Deputy Donnchadh Ó Laoghaire

I would be interested to hear any views. I take the Chairman's point on board and am open minded about how to proceed. I am curious to hear if any other member has a view.

Chairman

Does any other member have a view? I am not suggesting my reading is definitive, but there is a concern.

Deputy Jim O'Callaghan

The Chairman is correct to be concerned and it may be better to leave the amendment until Report Stage.

Chairman

Just in case.

Deputy Donnchadh Ó Laoghaire

I am happy enough with that but emphasise that the issue is important. I take on board the Minister of State's point about an additional Bill but I do not know what the timescale for it is or whether heads exist. I ask that in advance of Report Stage any issue is raised as to whether there is anything in the current wording that should not be included or which is not consistent with how people with disabilities are treated in the context where they are deprived of liberty. It appears that it is a minimal standard. Perhaps we are not meeting it, but it is the least we should expect. In that context, I am happy to withdraw the amendment now with a view to tabling it again on Report Stage.

In that context, I am happy enough to withdraw for the moment, with a view to resubmitting it or a variation of it on Report Stage.

Deputy Finian McGrath

I will take Deputy Ó Laoghaire's views on board and I assure him that the heads of the Bill are ready.

Chairman

I appreciate that and the views of other colleagues, which were very helpful.

Amendment, by leave, withdrawn.

SECTION 6

Deputy Mick Wallace

I move amendment No. 11:

In page 7, lines 19 to 21, to delete all words from and including “to keep” in line 19 down to and including “disabilities;",” in line 21 and substitute the following:

“to promote, protect, and monitor the implementation of the UN Convention on the Rights of Persons with Disabilities, and to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of persons with disabilities. Adequate funding and resources will be provided to carry out these functions;”,”.

This amendment was proposed by the Disability Federation of Ireland. The federation is of the view that the Bill does not provide a broad enough mandate to comply fully with the UN Convention. This amendment uses language taken directly from the convention and it tasks the Irish Human Rights and Equality Commission, IHREC, not only with reviewing the law but also with promoting awareness of the convention and ensuring its continued implementation. The amendment removes the paternalistic language of this section of the Bill and focuses on empowering people with disabilities rather than on protection. It goes without saying that IHREC must be adequately funded and resourced if it is to be given new duties. We often give extra powers to bodies, as with the Garda Síochána Ombudsman Commission, GSOC, for example, but if we do not resource them adequately, those powers cannot be used.

Chairman

Would Deputy Ó Laoghaire, who also tabled the amendment, like to comment?

Deputy Donnchadh Ó Laoghaire

I do not have a great deal more to add. It is important that this is properly implemented. Adequate funding and resources are needed. Good legislation and words as well as high ideals and principles are all very well but they must be properly backed by resources and funding. I appreciate what the Minister of State said about the Irish Deaf Society and look forward to seeing more detail on that later in the week, but what has transpired there is an example of us signing up to high ideals but not providing adequate resources, which means that we do not meet the standards that the people who are relying on these protections are expecting. This is a worthy amendment that is deserving of support.

Deputy Finian McGrath

I take the points on board that were made by Deputies Wallace and Ó Laoghaire. I have consulted IHREC and understand that it has made provisions for its role as an independent monitor in its work plan and budget for this year. On the question of resources, IHREC receives substantial Exchequer funding each year to support its core activities. The 2019 Estimates provide an allocation of €6.651 million. It is possible that matters which may arise over the forthcoming UNCRPD reporting cycle could require extra resources and IHREC is free at any time to present a case to Government for additional resources, as necessary, to carry out its core functions or other functions arising from its statutory role. As the Deputies are aware, it is the role of Government to determine how resources are allocated and it would not be appropriate for legislation to interfere with that role. That is the key issue here. Equally, enshrining the provision in legislation could cut across the role of the Oireachtas in overseeing IHREC's Vote. Accordingly, I cannot accept the amendment and propose that it be withdrawn.

Chairman

Deputy Wallace, in my opening remarks, I indicated that my assessment of the wording, in the limited time available to me, led me to determine that some elements or aspects of the amendment might not be in order. I will leave it to Deputy Wallace's good judgment and that of his colleagues as to whether it is pressed at this point or withdrawn and returned to on Report Stage.

Deputy Mick Wallace

I will consider the amendment further. I reserve the right to reintroduce it on Report Stage.

Deputy Jack Chambers

If the amendment were pressed and accepted, it would probably overly complicate and potentially delay the Bill. I have not seen any amendment passed with an open-ended insertion of "adequate funding and resources", which would be impossible to interpret. While the Deputy's aim in introducing the amendment is correct, I do not think the Bill would pass with this amendment in it. It would undermine the accountability role that the structures have to the Departments and the Oireachtas. I agree with the Minister of State on this.

Chairman

The essence of the Chairman's remarks is obviously also being taken on board. I thank Deputy Chambers for his contribution. Does Deputy Ó Laoghaire have anything to add?

Deputy Donnchadh Ó Laoghaire

No.

Chairman

In this instance, Deputy Wallace, can we take it that the amendment-----

Deputy Mick Wallace

I realise that we tend to legislate in terms of "may" rather than "shall" and this amendment probably fits into the same category.

Chairman

Members can resubmit their amendments on Report Stage if they wish. In this instance, can I take it that amendment No. 11 is being withdrawn?

Deputy Mick Wallace

Yes.

Deputy Donnchadh Ó Laoghaire

Yes.

Chairman

I thank all concerned.

Amendment, by leave, withdrawn.

Deputy Jack Chambers

I move amendment No. 12:

In page 7, between lines 21 and 22, to insert the following:

“(iii) by the insertion of the following paragraph after paragraph (o):

“(p) to act as the independent mechanism to promote, protect and monitor implementation of the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006.”.”.

This very simple amendment seeks to insert a paragraph into the section based on the intention in the general scheme of the Bill, which was to provide that the commission would act as an independent mechanism to promote, protect and monitor implementation of the convention. The additional commission function proposed in the Bill makes no reference to the independent mechanism or to the UNCRPD more broadly. The function proposed under the Bill should be clearly linked to the commission's designation as the independent mechanism under Article 33 of the UNCRPD. The amendment would better align the view of the UN Committee on the Rights of Persons with Disabilities that the State must adopt the necessary legal measures to establish the independent mechanism clearly. That is what we are seeking to do with this amendment.

Deputy Finian McGrath

I agree with Deputy Chambers. This section of Bill creates a statutory basis for IHREC's role in the monitoring framework with regard to the UNCRPD. IHREC, as Ireland's national human rights and equality body has a function to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights and equality and so is well placed to undertake the monitoring role with the technical support of the National Disability Authority, NDA. Having consulted IHREC, I understand that it welcomes the proposed amendment, which links its role explicitly to the UNCRPD. It is important that Ireland's progress in implementing the convention should be underpinned by robust monitoring. I am open to accepting this amendment on Report Stage, subject to further legal analysis or tidying up.

Chairman

The amendment will be accepted on Report Stage.

Deputy Jack Chambers

I am not accepting that. This is a case of déjà vu. I am going to press the amendment now. If the Minister of State needs to get legal advice on it, he can provide it to us on Report Stage.

Deputy Finian McGrath

I said that I am open to supporting the amendment.

Deputy Jack Chambers

I think it is important that we amend the Bill now.

Chairman

Is the amendment being pressed?

Deputy Jack Chambers

Yes.

Amendment put and declared carried.

Deputy Finian McGrath

I may have to come back on Report Stage with some changes to the Irish Human Rights and Equality Commission Act of 2014 to make provisions consistent.

Chairman

That is fine.

Deputy Donnchadh Ó Laoghaire

I move amendment No. 13:

In page 7, to delete lines 33 to 35 and substitute the following:

“the committee shall comprise at least 20 members and all members shall have, or have had, a disability within the meaning of section 2(1) of the Disability Act 2005. Cognisance will be given to the nature of disability to ensure broad representation. This committee shall receive the funds, resources and facilitation required to effectively execute its duties, with particular reference to the needs of members for reasonable accommodation.”.”.

Unfortunately, scheduling means that I have a question in the Dáil in three or four minutes and must leave. The principle of the amendment is very simple. There is no reason all the members of the advisory committee should not be people who have or had a disability. I will press the amendment, but if the Minister of State wishes to comment, I ask that he be as concise as possible. Unfortunately, I will probably be absent.

Chairman

No, with the indulgence of the committee members and the Minister of State, I will allow Deputy Ó Laoghaire to speak to amendments Nos. 15 and 16 in his name now and we will proceed to address them in his absence. The situation in which we find ourselves is not of our construct. I want to accommodate members as best I can.

Deputy Donnchadh Ó Laoghaire

Amendment No. 16 is the simplest amendment. It returns the Bill to its original Title that it be cited as the Equality/Disability (Miscellaneous Provisions) Act 2016. Amendment No. 15 calls for a focal point for implementation and that the Department of the Taoiseach will be the focal point for the monitoring framework as set out in Article 33 of the UN Convention on the Rights of Persons with Disabilities.

Deputy Finian McGrath

I am in a similar position. I have a group of disabled people in the audiovisual room waiting for me at 11 a.m. and we have about three other events on today. It is difficult. I am prepared to facilitate if the committee wishes to choose a quieter time when we are not rushed to complete this.

Chairman

No, with respect, we will complete our business here now. The further opportunity will be Report Stage, but we should not defer Committee Stage. There has been a significant deferral from prior to Christmas to 30 January and, in deference to members and the broader disability community, we should complete our business.

Deputy Finian McGrath

That is okay.

Chairman

Does the Minister of State wish to respond to amendment No. 13?

Deputy Finian McGrath

The Irish Human Rights and Equality Commission, IHREC, has appointed a disability advisory committee under section 9 of the Irish Human Rights and Equality Commission Act 2014. When it was established, it had regard to the Disability Bill 2016 of its own volition. The disability advisory committee is made up of 14 members, three of whom are commissioners, being the chair, the vice chair and the chief commissioner, as per the requirements of the commission's founding legislation. Of the other 11 members, nine are persons with a disability and have been appointed following an open recruitment process.

Deputy Jack Chambers

As with an earlier point, amendment No. 13 making it open-ended would complicate and delay the legislation. There is a proposal to mandate a committee to receive necessary funds but I have never seen an amendment with that type of working language successfully pass through the Oireachtas. Perhaps Deputy Ó Laoghaire might reword the amendment on Report Stage. I do not disagree with other parts of the amendment but I do not think it will pass.

Deputy Donnchadh Ó Laoghaire

My question is about to come up in the House but I will press amendment No. 13.

Deputy Finian McGrath

IHREC is an independent body which is directly accountable to the Oireachtas. Accordingly, it would not be appropriate for me as Minister of State to contradict any determination it makes to the composition of its advisory committee. Therefore, I propose that the amendment be withdrawn.

Chairman

Being mindful of how this might go, and weighing up the options before us and the time available, as Deputy Ó Laoghaire will not be present, might he withdraw amendments Nos. 15 and 16 and resubmit them on Report Stage?

Deputy Donnchadh Ó Laoghaire

Yes.

Amendment put and declared lost.

Section 6, as amended, agreed to.

NEW SECTION

Chairman

Amendments Nos. 14 and 17 may be discussed together.

Deputy Finian McGrath

I move amendment No. 14:

In page 7, after line 35, to insert the following:

“Amendment of Assisted Decision-Making (Capacity) Act 2015

7. The Assisted Decision-Making (Capacity) Act 2015 is amended—

(a) in section 15(1)—

(i) by the substitution of “one or more of” for “one or both of”, and

(ii) in paragraph (c), by the substitution of “decision-making assistance agreement” for “co-decision-making agreement”,

(b) in section 46(6)(b), by the substitution of “general visitor” for “special visitor”,

(c) in section 75, by the substitution—

(i) in subsection (2)(b), of “general visitor” for “special visitor”,

(ii) in subsection (7)(b), of “attorney” for “co-decision-maker”, and

(iii) in subsection (8), of “subsection (7)(b)” for “subsection (7)(a)”,

and

(d) in section 143, by the deletion of paragraphs (b) and (d).”.

The purpose of the amendment is to insert a new section into the Bill to provide for a number of minor technical amendments and corrections to the Assisted Decision-Making (Capacity) Act 2015. Paragraph (a) of the new section relates to section 15 of the Assisted Decision-Making (Capacity) Act, which provides for complaints against decision-making assistants appointed under the Act. The first proposed amendment to section 15 is a technical drafting amendment. As there are three paragraphs in section 15(1), the reference to “one or both of the following matters” is incorrect. The second proposed amendment is a technical drafting amendment to replace an erroneous reference to co-decision-making agreements with a reference to decision-making assistance agreements.

The director was appointed in late 2017. The preparations for the commencement of the Act are ongoing. We are working towards 2020 for its commencement. The staff are being recruited, codes of practice are being drafted, and procurement is under way. The Department is working on amendments to the Assisted Decision-Making (Capacity) Act 2015 to address the issues that have arisen since the Act was passed. They are also to remove inconsistencies and clarify provisions. Much work is ongoing on this issue.

Chairman

Do any members wish to speak on these amendments? No.

Deputy Finian McGrath

I will bring forward amendments on Report Stage.

Amendment agreed to.

Amendments Nos. 15 and 16 not moved.

Section 7 agreed to.

TITLE

Deputy Finian McGrath

I move amendment No. 17:

In page 3, line 9, to delete “2014” and substitute “2014, the Assisted Decision-Making (Capacity) Act 2015”.

Amendment agreed to.

Title, as amended, agreed to.

Bill reported with amendments.