Dáil Éireann díospóireacht -
Tuesday, 28 Jun 2005

Vol. 605 No. 3

Disability Bill 2004: From the Seanad.

The Dáil went into Committee to consider amendments from the Seanad.

An Leas-Cheann Comhairle

Seanad amendments Nos. 1 and 2 are related and may be discussed together.

Seanad amendment No. 1:

Section 5: In page 8, subsection (1), lines 36 to 39, "an officer of which is the accounting officer in relation to the appropriation accounts of that body for the purposes of the Comptroller and Auditor General Acts 1866 to 1998" deleted and "which is not the subject of an allocation by a Minister under subsection (2)” substituted.

Ms Lynch: Amendment No. 1 concerns section 5. This section was probably discussed on Committee Stage more than any other section. Difficulties arose regarding how various elements of the structure were to work but, nevertheless, section 5 is probably the most fundamental section of the Bill.

Section 5 makes reference to services and states a "Minister" means "a Minister of the Government". This Bill affects several Departments and therefore it is a question of "Ministers of the Government". Given the importance of ring-fencing, what is meant by "services"? Do the services to be provided by each Department comprise only services specific to people with disabilities or all services? If, for instance, the OPW were to install a ramp to facilitate access to a building, would it be part of the service? Would it be what the funding is for? Is the tactile pavement the Department of the Environment, Heritage and Local Government provides through local government services part of the service? Does it pertain to the budget?

Is the education service provided by the Department of Education and Science part of the service? Is this what its budget is for? I do not refer solely to the education service for children with disabilities because the Supreme Court decision on primary education for people over 18 extends the scope in this regard. Exactly what services are we talking about? To what does ring-fencing apply? If the education service is part of the service referred to, how does this square with the constitutional obligation regarding primary education?

Will the Minister state exactly what he means by "services"? Are they disability-specific services? Does he mean services including those which are available to us all? I would like a comprehensive answer to these questions because it is very important that we know exactly the budget that will be available to each Department. Will it be a question of the comprehensive service including services for people with disabilities or simply a question of disability-specific services? If it is the latter, how will the budget of each Department be determined at the start of each year?

Caoimhghín Ó Caoláin

We are dealing only with the first and second of 33 Seanad amendments although the time allowed for considering them will elapse in 25 minutes. As I stated today on the Order of Business, these 33 amendments are broadly technical and do absolutely nothing to rescue this fundamentally flawed legislation. Since the Seanad did not make a series of amendments taking on board the recommendations of the Commission on the Status of People with Disabilities, the recommendations contained in the document Equal Citizens, or amendments that transformed the Bill significantly into rights-based legislation, the exercise in the House is absolutely fatuous.

I strongly disagree with even the notion of section 5, which imposes resource limitations. This is its primary purpose. This is not the stuff of legislation that would make a key and critical difference in the delivery of the rights of people with disability. We want to see legislation presented that all the people of Ireland deserve. I emphasise this because it does not only concern people with disabilities but all the citizens of this State. We all have a right to see the desired legislation presented. None of us is at a remove from this issue. Only for the grace of God, we might well be at the centre of what is actually needed in this legislation. Who knows what the future will bring for any of us?

This legislation is for all the people of Ireland and these amendments do absolutely nothing to change what is, in effect, a Bill that has turned its back on the recommendations of the Government-established Disability Legislation Consultation Group and all its good work. This is exemplified by the withdrawal of many of those who had made an heroic and critical contribution and who ultimately found themselves, very disappointingly, having to campaign against the end result of all their labours because the Government turned its back on it.

Seanad amendments Nos. 1 and 2 confer no rights and establish no commitment to the principle of progressive realisation. Every provision in section 5 is framed to reduce the State's liability for failure to provide essential services. Sinn Féin's amendment, which was presented by my colleague Deputy Ó Snodaigh during the substantive debate on the legislation in this House, sought to ring-fence funding for disability-specific services. Of course this was rejected by the Government.

Although not wishing to labour my point on Seanad amendments Nos. 1 and 2 because we may wish to proceed further, I must state that any amendment to section 5 that does not introduce the principle of ring-fencing funding for disability-specific services is not relevant, serves no useful purpose and is an example of the futility of the entire exercise in which we are engaged this evening.

I regret greatly that we will not have another opportunity to pass judgment on the substantive Bill. Instead, we must vote on whatever Seanad amendments are outstanding at 9 p.m. It is the only mechanism open to us with which to show our absolute contempt for a Bill which shows contempt for those who hoped, worked for and deserved legislation which reflected their rights and needs.

Mr. Stanton

These amendments are largely technical. I am not 100% sure what amendment No. 1 is supposed to achieve. Perhaps the Minister of State would explain. Judging from what he said in the Seanad this is a purely technical amendment and relates to section 2 not contradicting a part of section 1 when changed.

In amendment No. 2, the Minister of State is replacing the word "required" with "appropriate". It would be useful to know why that is being done. Perhaps the DLCG had something to do with it. However, it appears to weaken the legislation in that if funding is required it is up to the Minister of the day to judge whether it is appropriate.

The Bill would make sense if it included a provision in this section whereby funding was earmarked early in the year and then ringfenced so that it could not be used for anything other than the services needed for people with disabilities. However, this is not the case, as the Minister of State made clear to me on Report Stage. Is it possible at this point for the Government to put that kind of structure in place? A judgment could then be made at the start of the year regarding the amount of money required to provide services for people with disabilities for that year. That money would then be made available and could not be touched by anybody except for those services. If the money ran out during the year, a supplementary budget could be introduced to top it up.

This section, however, goes the other way. There will be very little left for the services provided for in this Bill if a flu epidemic occurs and the HSE must use the funding. This huge cornerstone should be in place but it is not. The entire strategy is built on sand; it is a quicksand into which people can sink. This is the Bill's major flaw.

We are discussing largely technical amendments and the changing of words. There are a number of amendments further along which some of us suggested on Committee and Report Stages and which the Minister has now taken on board. I would be interested in what he has to say about section 5, one of the key funding sections. It is specifically set up to protect the Minister, the Exchequer and the Departments so that nobody can say that the Department must spend a certain amount of money to help a child badly in need of a service. Until now the courts could do this and parents have had to go to court to get support and services for their children. However, that will not be possible under this section. It will preclude people from going to court and the courts will be unable to make a judgment to provide a service. That is what people are saying about this section.

The Minister of State has said many times that he does not want the courts to tell him, the Government or the HSE what to do. Heretofore citizens had no choice but to go to court to get rights for their children and for other adults. Hopefully the situation will change but unless the funding is sufficient and ringfenced, it will all be built on sand. I hope it works for the sake of the people who deserve and need services and supports from the State in order to achieve a quality of life that gives them dignity and respect. That is what we all wish for.

Mr. Neville

The proposed amendment does nothing to address serious concerns regarding the need for a rights-based Bill. There was an emotive response to the Minister of State's approach at a meeting last night in Limerick. Families of those with disabilities expressed their extreme concern and near anger at the failure of the Government to respond to the advice which was given by those put in place to do so. Mr. Justice Flood was very clear in that the only approach was on the basis of introducing a rights-based Bill. Others who contributed were singular in the view that nothing less than a rights-based Bill was acceptable and that it is needed to ensure that people with disabilities get their rights under various international conventions, including the Convention on Human Rights. Section 5 and the amendments before us do nothing to allow for this discussion and we are concerned in that regard. Politicians from many parties gave a commitment to ensure that, should the opportunity arise, a rights-based Bill would be introduced to the House.

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

Amendment No. 1 is a technical amendment and makes it clear that the definition of specified bodies relates to bodies such as the HSE and the courts which operate with their own financial Votes and where the relevant Minister does not allocate funding.

The change reflected in amendment No. 2 was sought by the DLCG at its recent meeting with the Taoiseach on 25 May. The Taoiseach indicated that the matter would be reviewed and the Government has since agreed to make the related change to the Bill. Page 9, subsection (4), line 6, states that in determining the appropriate allocation under subsections (2) and (3), the Minister or specified body shall ensure that the amount remaining after the allocation is not less than the amount that is required. The word "appropriate" is more balanced in the context of the balance achieved in this Bill. The DLCG felt that the word "required" was somewhat too strong and we accepted the amendment.

With regard to Deputy Lynch's point, services are described in section 2 of the Bill and do not include education services which are provided for in the new special education Bill.

With regard to the points made in terms of rights, I am absolutely satisfied that the provisions in this Bill give a considerable number of rights to people with disabilities but do not include a new right, namely, the right to a justiciable decision. I took on this responsibility following publication of the Bill and am satisfied that it would not be in the best interests of people with disabilities to have justiciable rights. A situation already exists in respect of health services whereby justiciable rights do not exist. They have existed in the past with regard to special education services. It is quite clear from decisions taken and the ensuing results that most of the money received in terms of justiciable rights in the courts with regard to the issue of education has gone into lawyers' pockets.

I was very interested in what I read in this morning's paper. I would particularly like members of the Labour Party and Fine Gael to confirm whether they will give a commitment to introduce legislation giving justiciable rights. It is not in the interests of people with disabilities. It is no wonder someone like Mr. Justice Flood wants to have justiciable rights. He would probably feel it is the courts that should decide the level of service to be provided for people. It is not the courts that should do this, but this House.

The legislation is innovative in that it provides for transparency for the first time, in that each Minister must outline in public at the beginning of the year the amount of money that he or she will allocate for disabilities. With the multi-annual funding of the next five years there will be no change in that departmental allocation. It is not possible to include in legislation the ring-fencing of money in any area of public expenditure. I had robust discussions with officials in the Department of Finance who were quite clear that in the interests of good governance and the proper use of public funds, we could not ring-fence funding in legislation. I assure the House, however, that the Bill provides that each Minister must outline the allocation of money he or she will devote to disabilities during the year. It would take a brave Minister to change that allocation and with multi-annual funding, there will be no need to change.

Ms Lynch

The notion that one cannot ring-fence money is outrageous, for the simple reason that it is done all the time.

Mr. Fahey

Not in legislation.

Ms Lynch

We already know, for instance, how much the Government intends to spend in the next five years for disability services. The notion that one cannot——

Mr. Fahey

On a point of information, Deputy Lynch is incorrect. That is plainly incorrect.

Ms Lynch

I ask the Leas-Cheann Comhairle if that is a point of information.

An Leas-Cheann Comhairle

There is no such thing as a point of information.

Ms Lynch

That is not a point of information. It is just a point of pomposity and an indication that the Minister of State thinks he is right about everything. It is not a point of information.

With this Disability Bill we have a Minister of State who clearly does not have the power, the will or the desire to change anything or to put something in place that would benefit people with disabilities. That was very obvious from the outset of this process. I do not know if Deputy Fahey felt this was a form of punishment for him but he clearly did not have the interest required to do the job properly.

Those who campaign on behalf of people with disabilities have enough to do without running to the courts at every turn. Yet the Minister of State has consistently said, every time he has risen to his feet, that their only aim in life is to put money into the pockets of barristers and solicitors. Mr. Justice Fergus Flood did not speak last night as a judge, he spoke as the chairman of the Commission on People with Disabilities. To even infer that it was in his self-interest that he proposed the inclusion of justiciable rights requires an apology from Deputy Fahey. It is outrageous that he should make such an assertion.

Mr. Neville

Hear, hear.

Ms Lynch

People who have to go to court to vindicate their rights do so because they have no other option. I ask the Minister how he thinks we would react to legislation that stated that either he or I could not go to court to vindicate our rights, whether in relation to wrongful arrest, slander or a civil action of some kind. We would strongly protest and we would be right to do so.

People with disabilities are not lesser citizens. They are equal citizens who just happen to need more help from the State than people who are able-bodied. The difficulty is that this Government perceives them to be lesser citizens and is not prepared to do the right thing. I point out to the Minister of State that everything costs money.

Mr. Stanton

If this Bill is all the Minister of State claims, why is he afraid of the courts? If this legislation will provide the necessary services and supports there is no need to insert a provision that prevents people from going to court. The last place people with disabilities or their parents want to go is to court. The court is the last resort, the final choice and people only go there because the State has let them down. In most instances they are vindicated in the neutral venue of the court, although the Minister of State seemed to imply that our courts are not neutral. Under the Constitution the courts are there to uphold the rights of individuals and if the courts find in favour of the citizen, they are doing their job. If this Bill is all that it is claimed to be, if it will provide the services and supports Deputy Fahey claims, there is no need to prevent people from going to court if they feel they must. People should not have to go to court, if this Bill is so good.

Through the Finance Act, money is ring-fenced every year and there is no reason that could not be done in the context of the Disability Bill. I do not know if the Minister of State has ever read the Finance Act. It is a large document and there is considerable reading in it, as well as much work. Money could be set aside and ring-fenced specifically for the services for which the Bill legislates. If funding is inadequate, a supplementary budget could be introduced to ensure that people receive the services they require. That is what should be done, but this Bill and the section under discussion, is specifically designed to protect the State and Ministers from the weakest sector of our society, namely, people with disabilities.

At the outset of the debate on this legislation, I read out a letter from the parent of a disabled child. He said that when he read this Bill, it was like a slap in the face. He wondered why the State is so afraid of his child, who cannot walk or talk. Why is the State so afraid that it must insert safeguards into legislation to protect the State and the Exchequer from his child? That is what that parent wondered and that is exactly what is happening with this Bill.

Some time ago I said I hoped the Bill would work, for the sake of people with disabilities. We will follow the progress carefully from the autumn, when the Dáil returns from its imposed exile. We will track the progress of the Bill, ask questions and examine how every section of the legislation is put into place. We already find that the special needs area in education is being cut back. Special needs assessment officers are telling children in schools that they cannot have a special needs assistant. The Education for Persons with Special Educational Needs Bill does not appear to be working in that regard.

I appeal to the Minister of State to ensure that there is sufficient funding in place, that it is ring-fenced and not frittered away on other services in the health or education areas and that the services and supports are in place for the people who need them. The need is great. Deputies who were in Limerick last night heard people describe their experiences, the pressures they are under and their anger and frustration was palpable. One's heart would go out to such people when one realises what they have to endure and the fears they have for their disabled children when they die and so on.

I hope this Bill will work, but I have major reservations. We will track progress and follow every stage of its enactment and implementation. Unfortunately, because of the guillotine we will not be afforded the opportunity to discuss other amendments tabled. However, most of these are technical and will not make a huge difference to the substance of the Bill.

Caoimhghín Ó Caoláin

As this is almost the last minute allowed for this discussion, I wish to briefly state that the Human Rights Commission's critique of section 5, as passed by the Dáil will still hold, even if amendments Nos. 1 and 2 were accepted. The critique deals with the proposed system of funding which provides Ministers and service providers wide discretion to deviate from the provision of services identified as being required, or appropriate, by persons with disabilities. The Human Rights Commission concluded that this Bill does not guarantee the progressive realisation of rights and therefore is not consistent with our obligations under international human rights law. In all the responses from the Minister of State in the course of the entire debate on the so-called Disability Bill, I never noted that he addressed the concerns raised by the Human Rights Commission and I do not know if time will allow for that this evening. This is a most unsatisfactory process.

An Leas-Cheann Comhairle

As it is now 9 p.m. I am required to put the following question in accordance with an order of the Dáil of this day: "That the Seanad amendments not disposed of are hereby agreed to in Committee and agreement to the amendments is accordingly reported to the House."

Question put.

The Dáil divided: Tá, 65; Níl, 51.

Tá

• Ahern, Michael.
• Ahern, Noel.
• Ardagh, Seán.
• Brady, Johnny.
• Brady, Martin.
• Brennan, Seamus.
• Browne, John.
• Callanan, Joe.
• Callely, Ivor.
• Carey, Pat.
• Carty, John.
• Cassidy, Donie.
• Collins, Michael.
• Cowen, Brian.
• Cregan, John.
• Cullen, Martin.
• Curran, John.
• Davern, Noel.
• Dempsey, Tony.
• Dennehy, John.
• Devins, Jimmy.
• Ellis, John.
• Fahey, Frank.
• Finneran, Michael.
• Fleming, Seán.
• Gallagher, Pat The Cope.
• Haughey, Seán.
• Hoctor, Máire.
• Jacob, Joe.
• Keaveney, Cecilia.
• Kelleher, Billy.
• Kelly, Peter.
• Killeen, Tony.
• Kirk, Seamus.
• Kitt, Tom.
• Lenihan, Brian.
• McEllistrim, Thomas.
• McGuinness, John.
• Martin, Micheál.
• Moynihan, Michael.
• Mulcahy, Michael.
• Nolan, M. J.
• Ó Cuív, Éamon.
• Ó Fearghaíl, Seán.
• O’Connor, Charlie.
• O’Dea, Willie.
• O’Donnell, Liz.
• O’Donovan, Denis.
• O’Flynn, Noel.
• O’Keeffe, Batt.
• O’Keeffe, Ned.
• O’Malley, Fiona.
• O’Malley, Tim.
• Parlon, Tom.
• Power, Peter.
• Power, Seán.
• Roche, Dick.
• Sexton, Mae.
• Smith, Brendan.
• Smith, Michael.
• Treacy, Noel.
• Wallace, Dan.
• Walsh, Joe.
• Wilkinson, Ollie.
• Woods, Michael.

Níl

• Allen, Bernard.
• Boyle, Dan.
• Breen, James.
• Broughan, Thomas P.
• Burton, Joan.
• Connaughton, Paul.
• Costello, Joe.
• Cowley, Jerry.
• Crawford, Seymour.
• Crowe, Seán.
• Cuffe, Ciarán.
• Deasy, John.
• Deenihan, Jimmy.
• Durkan, Bernard J.
• Fox, Mildred.
• Gormley, John.
• Gregory, Tony.
• Hayes, Tom.
• Healy-Rae, Jackie.
• Higgins, Michael D.
• Hogan, Phil.
• Howlin, Brendan.
• Kehoe, Paul.
• Lynch, Kathleen.
• McCormack, Padraic.
• McGinley, Dinny.
• McGrath, Finian.
• McGrath, Paul.
• McHugh, Paddy.
• McManus, Liz.
• Moynihan-Cronin, Breeda.
• Murphy, Catherine.
• Naughten, Denis.
• Neville, Dan.
• Ó Caoláin, Caoimhghín.
• O’Dowd, Fergus.
• O’Keeffe, Jim.
• O’Shea, Brian.
• O’Sullivan, Jan.
• Pattison, Seamus.
• Penrose, Willie.
• Quinn, Ruairí.
• Rabbitte, Pat.
• Ryan, Eamon.
• Sargent, Trevor.
• Sherlock, Joe.
• Shortall, Róisín.
• Stagg, Emmet.
• Stanton, David.
• Upton, Mary.
• Wall, Jack.

Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Kehoe and Stagg.

Question declared carried.