JOINT COMMITTEE ON FOREIGN AFFAIRS (Sub-Committee on Human Rights) díospóireacht -
Thursday, 19 Jun 2003

Vol. 1 No. 22

UN Convention on Disabilities: Ministerial Presentation.

Chairman

We shall move on to the proposed new UN treaty regarding the human rights of persons with disabilities. As Deputies will know, at the request of the sub-committee, the Minister for Justice, Equality and Law Reform, Deputy McDowell, and the Minister of State, Deputy Tom Kitt, were invited here to speak on the proposed new treaty. Unfortunately, the Minister of State is overseas and has conveyed his apologies to the committee. I welcome Minister McDowell and thank him for appearing before us today. I suggest to the committee that the Minister might first outline his views for us and we will then have an opportunity for questions and answers. Due to a commitment at Dublin Castle at 10.30 a.m., the Minister must leave here at 10.15 a.m., so we must take that into account.

The Minister will be aware that a number of lobby groups have made presentations to us on this matter and voiced concerns regarding the Government's position on a possible UN treaty. Arising from those concerns being conveyed to us, and following a meeting in April, we passed the following resolution at the sub-committee:

The sub-committee on human rights supports the adoption of the United Nations Convention on Disabilities and recommends that the Irish Government, in accordance with its opening position, play a lead role at EU level to achieving a common EU position towards the achievement of a United Nations treaty on the human rights of persons with disabilities.

The Minister might outline his views and those of the Government and we can take the matter from there.

Minister for Justice, Equality and Law Reform (Deputy McDowell)

I thank the sub-committee for its invitation to attend this meeting and for the opportunity to inform it of the negotiations which are taking place in relation to the proposals for a UN convention on the rights of persons with disabilities. I also apologise that I was unable to attend the previous meeting on 27 May 2003.

At the outset, I want to clarify a number of matters In relation to these negotiations. As Minister for Justice, Equality and Law Reform, I and my Department have responsibility for disability equality policy. I continue the work of previous Governments in making the promotion of equality for all and the elimination of discrimination a priority. My Department has taken an active role in promoting equality and protecting against discrimination as well supporting positive action measures in relation to people with disabilities. In fact, lreland now has some of the most comprehensive equality legislation in the world.

Key policy and legislation initiatives undertaken include the enactment of the Employment Equality Act 1998, which prohibits discrimination in employment and vocational training on nine grounds, including the ground of disability; enactment of the Equal Status Act 2000, prohibiting discrimination in the provision of goods and services; the subsequent establishment of the Equality Authority and Equality Tribunal - the infrastructure to support implementation of the provisions of both enactments and to provide an individual right of redress in the event of discrimination; the establishment in June 2000 of the National Disability Authority to develop and monitor the implementation of standards and services for people with disabilities and to advise in relation to disability policy and practice and, at the same time, the introduction of the policy of mainstreaming services for people with disabilities.

The balance of rights which emerged from the parliamentary legislative process is one of the hallmarks of the equality legislation and has, to a great extent, shaped the parameters of our present understanding. This balance has created an all inclusive approach to promoting equality and eliminating discrimination.

However, I know that further work is required if we are to have a truly inclusive society and the Government is committed to pushing the equality agenda further. My colleague the Minister for Education and Science, Deputy Noel Dempsey, will shortly publish the education for persons with disabilities Bill, which aims to identify the special educational needs of children with disabilities and provide for an education appropriate to their needs as early as possible in their lives. The Government is also committed to bringing forward a disability Bill which will be published at the earliest possible date. That Bill will underpin the principle of mainstreaming and provide for positive action measures to remove barriers to equal participation for people with disabilities.

In relation to the proposed UN convention, in recent negotiations at EU level there has been a determination to develop a common position with regard to the second meeting of the UN ad hoc committee established to consider proposals for a comprehensive and integral international convention to promote and protect the dignity and rights of persons with disabilities. I am on the record of Dáil Éireann, in reply to a parliamentary question on 16 April requesting details of opposition to a proposed UN convention, as stating that I am not opposed to such a convention. In so stating, I indicated that I have been consulted on and fully agree with the position being taken by Ireland on this matter.

I am also on record as stating that there is a need for further positive action measures to remove the particular barriers which are faced by many people with disabilities and to provide specific supports to facilitate participation In society by persons with disabilities. The removal of barriers to equal participation and the provision of broad ranging supports and advocacy for people with disabilities are necessary to ensure equality of opportunity and participation. I thank members of the sub-committee for allowing me the opportunity to set the record straight in this regard.

I would also like to outline some recent developments for the sub-committee. On 19 December 2001, the General Assembly of the UN decided, on foot of a proposal by Mexico, to establish the ad hoc committee to consider proposals for an international convention for people with disabilities. Members of the committee will be aware that the first meeting of the ad hoc committee took place in New York in the summer of 2002.

At the meeting, the committee concerned itself mainly with procedural matters. The second meeting of the ad hoc committee is taking place during this week and next week in New York, and the expectation is that this meeting will begin the task of examining the possible content and scope of what any proposed convention or other instrument might contain. In preparation for this meeting the UN Secretary General asked for the views of all member states about the proposals each would like to see included in his report to the committee. In accordance with normal practice, the EU decided to co-ordinate a common response to the UN Secretary General. Following receipt of the request from the UN Secretary General, the Greek Presidency took action to co-ordinate a common EU response.

Consultations were necessary domestically, both at ministerial and interdepartmental level to co-ordinate Ireland's position in regard to the work of the ad hoc committee, and these consultations took place as quickly as possible. As the Department responsible for disability equality policy, my Department had to satisfy itself that any common position was entirely compatible with Government policy in this area. Equally, the Department of Foreign Affairs had to satisfy itself that Ireland’s position and the EU common position which eventually emerged was consistent with Ireland’s policy in relation to human rights internationally, including existing obligations under international human rights instruments to which the State is party. Discussions between the two Departments took place to ensure that the common EU position would be consistent with Government policy in all its aspects.

These discussions have resulted in the adoption of an agreed policy position by the two Departments which fed into the negotiations at EU level. Negotiations took place among EU member states and a common position subscribed to by all member states, including Ireland, has been adopted and forwarded to the UN Secretary General. Briefings supplied by the Department of Foreign Affairs and my Department outline the position in this regard. The committee will note that the EU position paper states that "The European Union is committed to promoting and protecting the rights of persons with disabilities". It goes on to say that "the European Union is prepared to work on a new legally binding instrument on the rights and dignity of persons with disabilities". In addition, the paper states "a fundamental principle in elaborating any such new instrument is that it should have a rights-based approach".

Ireland believes that the guiding principle of any new legal instrument in the area of disability should be to ensure that persons with disabilities can better enjoy their human rights. Ireland, with its EU partners, will aim to ensure that the processes and outcomes of the ad hoc committee meet that principle. During the current meeting of the ad hoc committee in New York in June, Ireland continues to work with its EU partners in refining and developing our approach to the forthcoming negotiations. More work is required and the committee can be assured that Ireland will participate fully in EU preparations and in the work of the ad hoc committee.

Deputy J. O’Keeffe

What is agreed Government policy at this stage and what view are we projecting in international negotiations? The Minister's speech this morning begins by referring to the fact that we are participating in discussions on proposals for a UN convention on the rights of persons with disabilities, and ends on the basis that he believes that Ireland's guiding principle on any new legal instrument in the area of disability should be to ensure that persons with disabilities can better enjoy their human rights. The question does arise as to whether we need a new convention at all if in fact the guiding principle is just the better enjoyment of existing human rights.

We then go to the basic point: are we talking about establishing, on a rights basis, a new convention which will cover the situation of those with disabilities? It would be helpful for everybody if the Minister clarified exactly where he stands on that issue because his hand seems to be behind the approach now being adopted at international level. The ad hoc committee is meeting this very week but the common position seems to have been restrained and constrained by what seems to be the approach of the Minister, namely, that we should not be taking a progressive position from the point of view of establishing a rights based convention for the disabled. I will confine myself to that point.

We are talking about an extremely serious issue as there are about 600 million people, approximately 10% of the world's population, who are disabled in one way or the other. Many of them are in developing countries and as a country that has adopted a progressive stance in regard to developing countries in the past, we seem now because of the approach being adopted by the Minister, to be adopting a very restrictive approach. Perhaps that should be said straightaway and I would like to hear the Minister's reaction to it.

Chairman

Before the Minister replies, if Deputy Higgins has the same line of questioning to pursue on that subject we will take the two questions together.

Deputy M. Higgins

I am happy to do that. I have four or five points to make because this is a discussion that extends from our previous consideration and our questions to officials. The first preliminary point is that I am worried as to the usefulness of our discussion at this time. It is always valuable but it would have been all the more valuable if it had been in time to inform the European discussion and indeed the preparations for the UN ad hoc discussion.

We are really talking about two common positions. To save time I will be frank. At our last meeting we discussed the correspondence between the Minister of State at the Department of Foreign Affairs, Deputy Tom Kitt, and the Minister present. It was clear that the two common positions that we would have to consider were a common position between the Department of Justice, Equality and Law Reform and the Department of Foreign Affairs, and the common position between EU members. The Minister today describes the political orientation of his Department. He mentions that when the two Departments went to negotiate it was the Department of Foreign Affairs which was operating from the perspective of international human rights whereas the Department of Justice, Equality and Law Reform was operating on the basis of the inherited and proposed body of legislation covering disability and equality. I am not sure they are so easily divisible. That is my first point.

The second arises from that and it is far from being an academic point. What is the force of that? It is whether we take our existing international legal obligations as the base point from which we depart, a template towards which national legislative activity directs itself, or do we take our legislative activity, inherited and planned in the present administration, as something from which we work outwards? This is a crucial question for a committee like ours, as a sub-committee of the Joint Committee on Foreign Affairs. In the context of our existing obligations the Vienna Declaration and programme of action of 1993 clearly states that all human rights are universal, indivisible and interdependent. Therefore, when in today's presentation the Minister makes reference to Government policy I have to say that we are at the moment waiting for a clear Government statement on a rights based approach to domestic legislation. This creates a problem and that is the basis of the problem.

The next point that arises is on a further rights issue, and that is if we take the UN covenant on economic and social rights and look at the operation of that we have to make another point. The committee which monitors compliance with, and progress of, that covenant makes comments from time to time which suggest that where a State does not adopt the covenant on economic, social and cultural rights, and accept the principle that the rights are universal, indivisible and interdependent, it would demonstrate that it would be inappropriate to implement such in domestic legislation or it would show that they were redundant. This would be unlikely to arise as in general comment number nine - one of the points which I had prepared for our last meeting - and one could see the implementation would be rendered ineffective if it was not complemented by justiciable remedy.

Is the Minister unequivocally in favour of the existing international legal obligations that arise? Is he in favour of a rights based approach to disability which will establish a template? Is he in favour of such rights as are not justiciable? Is he in favour - he made the point in his speech, which I accept - of the reality that in many cases it would be an entirely unsatisfactory approach if domestic legislation defined itself in terms of removing obstacles to equal participation? The general comments on the economic, social and cultural convention stress that it is necessary because we are dealing with a vulnerable section of the population which needs to have positive action and, to be fair, the Minister refers in his speeches to the need for positive action.

Another point that has arisen, both before and after our last attempt to discuss this at the sub-committee has been the suggestion there may have been aspects of internal law that would have served as obstacles to a progressive and vigorous position on a rights based approach. Again, that has been a matter of comment, included in comment number nine specifically, which states:

The adoption of a rigid classification of economic and social and cultural rights which puts them by definition beyond the reach of the courts would be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent. It would also drastically curtail the capacities of the courts to protect the rights of the most vulnerable and disadvantaged groups of the society.

Deputy McDowell

From what is the Deputy quoting? I am lost at this stage. Paragraph nine of what?

Deputy M. Higgins

I am quoting from comment number nine of the committee on key issues under the covenant economic, social and cultural rights. I referred earlier to the monitoring committee and its comments. The two comments I quoted from are comment nine and comment five. I had prepared this material in clearer detail the last time. This is the straight basis of ensuring that the starting point of our approach to the two common positions I referred to earlier is our international legal obligations.

Deputy McDowell

I will answer both Deputies Higgins and O'Keeffe together as we can wrap the two sets of observations into one. I agree with Deputy Higgins that what Ireland says internationally in terms of its negotiating positions, proposals, political activism and detailed input into the generation of international agreements, must reflect what the State believes it will do at home. Our international stance on these matters should be accompanied by the slogan, "It does what it says on the tin". We cannot have a situation where we agree to matters internationally which we do not intend to sign up to in domestic legislation.

Our Constitution says that international agreements do not form part of the domestic laws of the State except to the extent which the Oireachtas so rules. I may sound like a broken record on this to Deputy O'Keeffe because he has been hearing this for a while but I must say it to Deputy Higgins because he has not been involved in the Convention on Human Rights debate to the same extent as Deputy O'Keeffe.

Our Constitution is different from many civil law states. Many civil law states have an internal hierarchy where their constitution comes at the top, the next is international agreements and the third in the pecking order of importance is domestic legislation. The Irish Constitution is different. It states that first is the Constitution, second, domestic legislation and third, international agreements only come into Irish law to the extent that the Oireachtas so determines. That is a fundamental difference between us and many civil law states. It complicates the joint approach, on occasions, to the negotiation of international agreements.

Deputy Higgins has spoken of the need for justiciability. That is where we are getting to the core of the issues that confront us as a Legislature. Under our Constitution, again, a strong distinction is made between what is the prerogative of Parliament and what is the prerogative of the courts. Article 45 of the Constitution is a much neglected attic piece as far as many constitutional lawyers are concerned, filled with the junk of the 1930s ideology. If it is looked at carefully, there are many things in that Article that give a clue as to the nature of our State. Matters such as social and economic policy and the directed principles of social policy that are set out in that Article are stated by our Constitution to be the exclusive province of the Oireachtas and not cognisable by courts of law.

This is the basic position as we come to this issue. We have a Constitution that confers on the Oireachtas exclusive competence in social and economic matters. We have a system that effectively excludes the courts from activism in those areas. That is not to say that there is a rigid separation or distinction of powers. It is open to the Oireachtas to create justiciable rights for people in any area.

For instance, in the Department of Social Welfare of old, all of the social welfare code was justiciable either by internal tribunals or court action. The Social Welfare Acts and their objective meaning and people's entitlements under them are clearly justiciable. I am not suggesting that because they belong to the social or economic sphere, judges could never have a role in them but they do have a role in them to the extent to which the Oireachtas provides and subject to whatever conditions the Oireachtas provides. The issue, therefore, that Deputy Michael Higgins raises - I agree it is the core issue - is are we in the business of establishing at an international level a commitment to establish justiciable rights for people with disabilities? If so, what are the consequences of so doing?

If one was to say that a High Court judge would have general competence to make a direction to the State to provide x or y service for x or y person in any area, and we can leave disability out of it——

Deputy. M. Higgins

That was not my argument.

Deputy McDowell

I am not suggesting that. If one was to do that, a situation would be created fraught with the difficulties which arose in the Sinnott case. If, on the other hand, the Legislature puts in place a code of law which is supportive of the vindication of the rights of people with disability to participate fully in the social, economic and cultural life of their society and if we put into that code mechanisms whereby people who are excluded from the enjoyment of those rights can have a remedy, we can be said to be adopting a rights based approach but we are not going to the extreme of the caricature I posed a moment ago that it is for the courts to decide what all this means.

The real question of going forward is not one of an arid distinction based on the separation of powers. The real question going forward is for the Houses of the Oireachtas, in the forthcoming disability legislation, to establish what "full according of human rights to people with disabilities" actually means. It must also establish on a sectoral basis how this will be accomplished and mechanisms whereby those they claim are being short-changed and totally denied can have a remedy. The last element in providing remedies for people who are denied what they are entitled to under the legislation can be described as rights based. We have to determine what we mean by rights based. Do we mean that we wake up one morning and find a High Court judge has ordered CIE, for example, to scrap the railway carriages they use because they are not wheelchair accessible? Alternatively, do we mean there will be a programme for that kind of work to be done and there will an ombudsman whose job it is to report on CIE's failures in this respect? This is the kind of issue we have to decide with clarity when we talk about a rights based approach. What I am anxious to do is to ensure that whatever we negotiate internationally is consistent with what we propose to do internally. I ask the committee to bear in mind that for instance the Human Rights Commission has under statute, as one of its functions, the monitoring of our legislative programmes with a view to seeing whether we are living up to our obligations under international instruments. If we sign a binding international treaty or convention we should do so in full knowledge of its content and in circumstances where we are not engaging in international forum window dressing and proposing to short-change people on an internal basis.

In relation to the Department of Foreign Affairs and the relationship between it and the Department of Justice, Equality and Law Reform, what I have insisted on - and I make no secret of to this committee - is that those who negotiate in Ireland's name in an international forum have the authority of the Cabinet and have put the issues fairly and squarely before the Cabinet, or a sub-committee of the Cabinet, before they go out to bat for Ireland.

Deputy J. O’Keeffe

We are to have a restrictive approach domestically and internationally.

Deputy McDowell

No, that is not the case. It is that we have a coherent approach.

Deputy O’Keeffe

More a restrictive approach.

Deputy McDowell

No, it is not restrictive. Deputy O'Keeffe speaks as if he is some kind of political Santa Claus, suggesting we should be liberal and effusive and broad in these matters. I do not act on a kind of universal benign Santa Claus level of political rhetoric. If I sign up, or if the Irish Government signs up, to an international agreement, it is only because I intend to deliver on that agreement. It is not that I intend to strike some moral posture at an international convention or at the United Nations and secretly say that such things are impossible of achievement within our domestic regime.

Deputy M. Higgins

I have to take up some of these points.

Chairman

I am calling Deputy Stanton and then Deputy Higgins. Deputies will be aware that the Minister must depart shortly.

Deputy Stanton

I understand there were principles to be put down at the expert group in Mexico City in June 2002. The first stated:

This convention should primarily concern rights that are enforceable, and should incorporate measures to enable persons with disabilities to exercise their human rights and fundamental freedoms in particular. It should be grounded on the values of independent living or liberty, dignity, self-determination, equality and social solidarity.

How does the Government's approach compare with the approaches being taken by our colleagues and partners in the European Union? Is it true that we are the odd one out in not supporting economic and social rights at present?

Deputy McDowell

Certainly not. We are not isolated in this. I was speaking to a diplomat from an EU member state just the other day on this subject. He emphasised to me that his state shared the Irish concerns in relation to this.

We go back to the nature of a common law state. The judiciary in such a state is much more powerful than the judiciary in civil law states. This is a point that is not generally accepted and it is one of the strengths of the common law systems that it carries with it certain implications. We establish a judiciary. We give it full independence, full and original jurisdiction and the right to review any aspect of Government policy under our Constitution. We give it the right to injunct Ministers and to negative legislation. In the common law system the judiciary is given an immensely powerful role. If the enforcement of rights were handed to the judiciary, in an unstructured way, one could effectively achieve government by court in this country, and the allocation of resources by judges. That is not something which is in the least attractive because judges are not appointed with reference to their social and economic views and do not have to take responsibility for resourcing programmes which they might direct if they were given the right to enforce rights on a systematic basis.

There is a lot of tendentious rhetoric and notions which have not been fully thought through about what is or is not a rights based system. I have no problem with a rights based system where mechanisms are put in place by parliament, be they ones which involve court enforcement at any level or some level, or enforcement through other agencies such as ombudsman, internal tribunals or the like but the point I make is that it is for government in this country to decide how we would create mechanisms of enforcement which would be consistent with the rights of the people to make decisions about resource allocations through their public representatives. That is the issue which has been causing some degree of controversy in the newspapers and it is one on which it is very easy to posture, for example saying that those who are not fulsome in their uncritical support of what is termed to be a rights based approach to any particular area are somehow restrictive, denying and niggardly in their approach, and I do not accept that.

Deputy M. Higgins

I hope that what I have to say is not regarded as tendentious rhetoric. It is, I suppose, the approach of a political scientist towards human rights and international law.

It is interesting that Article 27 of the Vienna Convention and the Law of Treaties - which is really the governing treaty in relation to that which is signed in Ireland's name abroad and the acceptance of obligations - states that "a party (to a treaty) may not invoke the provisions of its internal law as justification for its failure to perform a treaty". Our issue is not only simply the application of a right through the screen of domestic law. The argument is about the very existence of a right. There is a difference between what the Minister is saying it is about and what I am saying. His position is a very conservative one. It is not a liberal one - he has disposed of that argument - but it is a conservative one in this regard: on the one hand he argues that he is not arguing from the extreme of the division of powers, but he has ended up talking about, for example, the courts having the function of the allocation of resources.

If one takes the example we had in relation to the rail and the train and the rest of it, the point is, say, the existence of the right to travel, in conditions of equality I described as a template which is there, that would be a powerful urge on legislation itself to meet the conditions of equality. One could however begin at the other end and suggest that the parameters under which we are to operate are those which we can currently hold to; if countries across the world, in relation to international treaties and in their approach to rights adopted that, what one would see shrinking away would be people invoking rather narrow interpretations of their capacity, giving a conservative view of legislation that would in turn be interpreted within limits by a conservative judiciary, but one would have entirely eroded one of the fundamentals in the Government's White Paper on foreign policy; one would even have begun to undermine the existing international obligations to which Ireland has signed up.

Deputy McDowell

I fully agree with the Deputy that the Vienna Convention on treaties contains the articles to which he refers. However, Ireland can only become a party to international treaties such as the Vienna Convention subject to our Constitution, which says that international agreements form part of the domestic law only when the Oireachtas so decides. That is a cornerstone. It is something which the Deputy and I are absolutely anchored in. That is the Constitution under which the Deputy was elected to serve.

Deputy M. Higgins

That is one interpretation.

Deputy McDowell

It may be, but there may not be as much of a difference between the position the Deputy is adopting and mine. This may all be at the level of rhetoric and posturing as generous and liberal on the one hand and trying to paint me into a conservative corner on the other.

Deputy M. Higgins

No, I am not doing that.

Deputy McDowell

I am in the business of delivering what I say I will deliver and signing up to agreements on which I know I can deliver and refusing to sign up to agreements on which I believe I could not deliver if they had some particular effect within our system. When it comes to disability policy it is certainly within the capacity of the Irish Parliament to establish laws which are rights based and to establish mechanisms to enforce the rights of disabled people, but if the term justiciability which the Deputy has used, which has been repeated, means High Court determination of social and economic allocation decisions among other things, we are back to the issues considered by the Supreme Court in Sinnott and the DG case and it comes down to who runs the country. The Deputy and I do so because we have a mandate to do so or the Judiciary because under international law, as transposed into Irish law, it is given a jurisdiction of an open ended kind. That is the issue.

Deputy M. Higgins

That is the attitude of the Burmese Government in relation to the freedom of Aung San Suu Kyi.

Senator Mooney

I have a simple question. I am the parent of a special needs child so I do not bring any great objectivity to this debate. Is the Minister confident that in the lifetime of the Government he will move significantly towards eliminating the need for people in wheelchairs to protest outside this building and for carers or people who have severe disabilities to protest on national television about not having a measly few million pounds? Is he confident that he will move significantly towards not minimising but eliminating that need in Irish society?

Deputy Stanton

Are we significantly out of step at EU and UN levels because of the problems the Minister articulated relating to our Constitution? Is he, because of our Constitution, being forced to take up certain positions which are at variance with what other countries are saying or propose to do? These are the reports we are getting back. Are there United Nations treaties to which we have signed up which give the same rights, including economic and social rights, to people with disabilities as to everybody else here? Does the Minister agree that people with disabilities should have the same economic and social rights as everybody else here? If there are obstacles preventing that, can he identify them and tell us how they might be changed or moved?

Deputy McDowell

To deal with Deputy Stanton's question, we are not out of kilter with the EU position; we are completely in agreement with it. The EU position is a jointly held position and Ireland is not in any difficulty or in any way separate or excluded from the mainstream of EU thinking on this issue. People who suggest that is the case are entirely misguided. We are playing our full part in the European Union joint approach to the issue of this convention and we are not isolated. Some people are trying to pretend that somehow we are isolated, but we are not. I assure the Deputy that is the case.

Deputy Stanton

Are we in step with the majority of other countries?

Deputy McDowell

We are well ahead of most EU countries on this agenda. We are great at scourging ourselves internally about issues unnecessarily. It makes good box office, but we are well ahead of most of our partners in the EU with our equality legislation and our approach.

Deputy Higgins talked about establishing positions and then progressively achieving them. I fully understand that approach and I have no difficulty with it. In our system we do not have rhetorical or paper rights. If a disabled person under Irish law has a courts based right, it is a clear black and white right which our courts will or will not enforce. We do not have soft rights or aspirational rights. We either have legal rights in our system or we do not. This is in contradistinction to many civil law based countries around the world where one can announce that people have rights and then leave them without a domestic remedy to achieve them. If anybody in this room has a right under Irish law, the Four Courts is there to enforce it. In most European countries there is no such mechanism and the same applies to Australia, Canada, New Zealand and other places. Either one does have a right or you do not have a right. One does not have a soft right or an aspirational right. A judge does not hear cases about aspirations, he or she hears a case about whether he or she will make a decision in one's favour one way or the other on the afternoon of the case. This is a point which is constantly fudged by people who do not want to face up to that fundamental distinction.

Senator Mooney asked if he can look forward in the lifetime of this Government——

Deputy M. Higgins

Some of us will face up to it both in terms of our view of the Judiciary and in seeking constitutional reform.

Deputy McDowell

I know the Deputy would love to change the Constitution——

Deputy M. Higgins

I speak for myself on the Constitution.

Deputy McDowell

——and he would love to have a Judiciary who are social and economic activists, but I think we would have a very unhappy society very quickly if we went down that route.

To address Senator Mooney's question, in the lifetime of this Government, my colleague, the Minister, Deputy Dempsey, will shortly publish an education for people with disabilities Bill. We are separating education for the obvious reason that the Constitution gives directly enforceable rights to people in the educational sphere, which the courts will uphold and to which they will direct the State to apply resources. That is one area where President de Valera's Constitution of 1937, which is all our Constitution, makes a distinction. Education is specifically taken from the Article 45 bracket and brought into the mainstream of the Constitution and access to primary education for people up to the age of 18 is made something which the courts will force the State to do and allocate the resource to achieve. When that is done the Department of Justice, Equality and Law Reform will bring in its broader disabilities Bill. The Minister of State, Deputy O'Dea, has been given responsibility for the carriage of that legislation and there is a Cabinet sub-committee dealing with this issue.

One of the objectives we want to achieve is a clear establishment of the rights of people with disabilities on the educational front and in that context we will have to achieve an assessment of needs. If there is an assessment of needs, which will be necessary to subtend the provision of educational rights in accordance with the Constitution, we will have to marry the other non-educational disability rights to the regime that emerges on the educational front. I do not want to have two separate assessments of people, one with a view to all the rest of their lives and one with a view to education only. If, as a State, we are going to resource the process of assessment with substantial resources, which we will have to do, I want to make sure that the model that arises is not wasteful and that, if a disabled person is assessed for one area, then as far as possible the assessment can overflow into other areas rather than have a totally separate system of assessment. A significant point is that when it comes to establishing what appears to be simple, a statutory right to an assessment for every disabled person in this country, one of the problems we will have to face up to is that we do not want to suck all the caring professions into the assessment stage and strip naked the capacity to deliver the services to the people who have been assessed. As a person said to me recently, this is a little like having a elaborate system of giving prescriptions to people who are sick but not opening the chemist shop. This is an area in which we must proceed carefully.

There is no division of view between myself and the Department of Foreign Affairs on this matter. All there was was a request by me that when they were articulating Irish policy on an international level they should do so by reference to an instruction from Cabinet so that we could all see where we were going on this front and that we should do internationally what we propose to do domestically. There is no sense in which Ireland is at a loss, marginalised, isolated, obstructive or less than a full player on the EU team. That is not the case. We have a delegation in Europe playing a full and active part in this debate. However, I will not posture internationally as being willing to do something on which I cannot deliver domestically.

Senator Mooney

Significant advances in the disability area over the past ten years should also be acknowledged.

Chairman

I thank the Minister for attending. Your comments were interesting. Many groups have been in touch with the sub-committee on this subject and we will transmit your views to them. I am sure your parliamentary colleagues will continue the debate with you in another forum.

Deputy McDowell

It is amazing what one can achieve by having a letter published in The Irish Times.