I thank the committee for the honour of addressing it this afternoon. I take this opportunity of my first time addressing it to commend Members on having created the Seanad Public Consultation Committee. The public interest is not just a sum of competing vectors. It requires a forum dedicated to deliberative and public reasoning such as this. Moreover, it requires taking the long view and making honest efforts to balance high principle with the art of the possible. The subject matter that brings us here is a classic example of a field that has been treated as an outlier, which has suffered from silo thinking and in which fresh ideas are so vitally necessary. Consequently, it is fortuitous this new spirit and practice of openness in the Seanad finds as its first subject the rights of older people.
I believe Members already have had the benefit of a rich tapestry of testimony from civil society groups. I take the floor mainly to address the net point of whether the process of drafting a new thematic United Nations treaty on the rights of older people should be pursued much more vigorously in the United Nations and of what added value such an instrument might have both here and abroad. As Members no doubt are aware, there exists a United Nations working group to consider proposals for the enhancement of the rights of older people. One of the main items on its agenda is whether to proceed to begin drafting a new United Nations thematic treaty on the rights of older people. Two sessions of the working group were held in 2011 and another crucial session will take place in 2012. The Global Alliance for the Rights of Older People, which is the main international federation of older persons' NGOs, is involved in the process and is firmly in favour of a new treaty. At present, the European Union is firmly opposed. Older people are seldom mentioned in existing international human rights treaties. The normative invisibility is not helpful in trying to make universal rights equally effective for older persons. While there are many soft law instruments, effectively they are not up to the job and a much more vibrant spur is required. The process seems to be at an historic impasse, which makes Members' hearings extremely timely. Their conclusions and recommendations no doubt will have an impact far beyond these shores. To my knowledge, this is the first time that any European legislature has explicitly addressed the question of the case for such a treaty and, whatever the outcome, I warmly congratulate Members on that.
As time is short, I will concentrate on three points. First, I wish to frame the problem from my perspective as someone involved in human rights and to give Members a sense of my vantage point on the issues. As will become clear, I value the process of drafting the treaty, as well as the treaty itself, as an opportunity to de-problematise the person and reconnect the policy debates about older people back into the mainstream of thinking about justice and human rights. Second, I wish to spell out what I see as the added value of such an instrument and what kinds of issues, topics and rights I ideally would like to be included. Third, I wish to look to the next steps, which is crucial, and in particular to encourage this august body to add its voice to the chorus of others who are calling for a new treaty to be advanced. The Seanad already has done a great service by throwing open its doors to civil society. More must be done, especially in this European year of active ageing.
First, how should one frame the issues? I must emphasise I am not a subject specialist on ageing. However, I come to the issue as someone who was closely involved in the drafting of a sister treaty, namely, the United Nations Convention on the Rights of Persons with Disabilities. I also appear before Members as someone who is a member of an international treaty monitoring body in the Council of Europe system and who therefore is aware of the stresses and strains and the creative ambiguity that is needed in such conventions to allow them to pass muster. Moreover, I appear before Members as someone who sat on the Irish Human Rights Commission with Senator Zappone for nearly ten years. The core mission of that body is to bridge international law and find a way of allowing its fresh air to influence domestic change for the benefit of our citizens.
I am only too painfully aware that, while international law has a certain aura of elegance, it never is an end in itself. It is only valuable if it can help to trigger a process of change where none exists or help to keep such a process trending in the right direction. Members no doubt are aware that Ireland has yet to publish its much awaited national strategy on ageing. It will be important that the emerging national strategy should play its part in advancing any new UN treaty, andvice versa, of which more anon. What then is the core “problematic”, how should the issues be framed and what use would a new United Nations thematic treaty have? This is key and core to the issues currently facing us. After nearly 25 years studying rights and particularly the rights of so-called vulnerable groups, I have come to observe the near universal experience of what the great legal historian Sir William Blackstone called civil death on the part of such groups. Blackstone was writing of women and their legal disappearance as persons upon marriage. It certainly is striking how personhood is somehow discounted with respect to the groups and individuals concerned. It is as though the terms of entry and participation in the lifeworld, that is, the world of social connectedness, public participation and civic engagement, are set effectively to exclude some. The depressing thing is this exclusionary ethic seems deeply embedded in almost all cultures, almost an indelible aspect of the human condition. The truly amazing thing is the exclusion is experienced by most people as natural, even when it flagrantly violates our highest professed values such as dignity and autonomy. As a result, the person is problematised, the exclusion is made feel natural and one’s conscience is salved by minimal levels of welfare.
I consider one of the most important functions of an international treaty on the rights of old people to be that it will hold up a mirror to each society, including ours. It forces us to take a good look at ourselves and to challenge the gap between the myth of the system and the way it actually operates. The ageing process seems particularly captive to this exclusionary ethic or tendency. It is true that one goes through several cycles during one's life and that one's social circle expands or contracts depending on where one is situated in life's journey. The mystic cords of memory or the ties that bind seem to be renegotiated progressively as one's life progresses. However, all this is distorted wildly beyond reality by encrusted cultural assumptions. Culture sees capacity as declining inexorably through old age. There is nothing inexorable to that. Culture does not see the use value of older persons in the economy. Culture does not see the value of social connectedness for all, that is, intergenerational solidarity, not to mention old people themselves. Moreover, social change and economic change in particular has exacerbated this feeling of disconnectedness in our society. The result has been policies that compensate for their absence, policies that maintain people squatting at the edge of society, policies that accentuate institutionalisation, policies that do not proactively stitch back together or rebuild social connectedness as time moves on in one's life. To be even more blunt, the policy focus has been on who pays to maintain older people and how public services get delivered. There is nothing inherently wrong with this on its own but when it becomes the sole focus it tends to reinforce dependence, passivity and to cement into place negative stereotypes.
The great thing about modern science is it shows how out of date are these cultural assumptions and the policies that depend on them. Moreover, it shows the value of moving toward a more positive outlook on ageing with a different set of policy responses to build on this positive outlook. Members should look to the sterling work of the Ageing Well Network in Ireland to get a sense of these policy innovations. The great neuroscientist Antonio Damasio stated the mind is a function of human relations. The policy lesson is clear, namely, build or rebuild those social connectors that help form who we are as persons. Furthermore, new 21st century theories of justice are emerging that emphasise human capabilities across the lifecourse. I refer in particular to the works of Amartya Sen. Consequently, we have the science that shows the usefulness of a completely new frame on ageing, as well as a theory to make it fit well with our legacy values on justice. What we lack is a spur for change, which is where the proposed United Nations treaty comes into sharp focus.
What would a treaty do to reverse decades of perverse cultural assumptions and the policies that were built on them? Allow me to put aside one blockage before proceeding. The United Nations working group and most states seem fixated with the question of whether there are normative gaps in the existing treaties that must be filled. The thinking is that it is only if such normative gaps are found that a treaty drafting process should proceed. I believe this to be completely wrong-headed. Of course there are no normative gaps in the general norms on human rights which, after all, are stated to be universal. The problem is not that there are gaps but that the universal norms are heavily distorted and discounted by these cultural assumptions, which dilute them heavily. The whole point about drafting a new treaty is to redress the imbalance between myth and reality. I digress further. We did not argue for a UN treaty on the rights of the disabled based on these gaps, rather we argued for it on the basis that the existing norms did not have sufficient critical bite in the area of disability. I suggest exactly the same logic holds true in the context of older people.
Before addressing the question of the added value of a treaty, I will outline what such an instrument might, with profit, contain. First, there should be a very clear valorisation of the human difference of ageing. Put another way, the fact of ageing should not be the occasion for the implicit diluting of universal rights we all supposedly enjoy, rather it should trigger a renewed debate about how those rights can be made real for older persons. This should be the key paradigm shift of any new treaty on the rights of old people.
Second, there should be a commitment to centring older persons to take charge and remain in charge of their own lives. As Members are probably, there was a remarkable breakthrough in this regard in the disability treaty. Article 12 of that treaty basically requires states to move away from substitute decision-making regimes and place their policy priorities instead on enhancing residual capacity and supporting persons to make decisions for themselves. I suggest very much the same philosophy ought to map over.
Third, the right to live independently and be included in the community seems vital. While this appears to be a contradiction in that someone might choose to live so independently as to be not involved in the community, but the interplay between the two is a crucial dialectic. Again, social connectedness is the key to maintaining a positive sense of self and personhood. One might say, so what? A new instrument, a new treaty, should provide a very positive philosophy of living independently and being included in the community. I say positive because the accent should not be on institutions as such. In the disability convention we took care to spell out the positive ingredients of the right to live independently. Of course, it implicitly places institutions, all institutions, on the defensive. Some months ago the HSE published a remarkable report recommending the ending of all congregated settings on the ground of disability. This would include group homes of four people and over. It seems that exactly the same logic should apply to institutions for the elderly, including many institutions in Ireland. Members may have seen an interesting article on this inTheNew York Times about a week ago entitled “shrinking the nursing home until it feels like home”. This development, I suggest, it long overdue and the advent of a new treaty should underpin this dynamic of downsizing.
Naturally, any new treaty will have to include a right to protection against violence, exploitation and abuse. Members may have noticed a major report from the English and Welsh Human Rights and Equality Commission a few days ago on just this topic. I did not put this front and centre only because I do not believe the majority of institutions that exist should exist. Even if we successfully unbundle the institutional matrix for the elderly in Ireland, violence, exploitation and abuse would just move to the community. Therefore, some proactive strategy is required but let us not get over-protective such that we chill the right of an individual to live the way he or she wants rather than the way we think he or she should live.
Fourth, economic and social rights must be better harnessed to ensure the dignity and especially the autonomy and connectedness of older people. It is interesting how people reflexively think that elder rights equals social expenditure or that when people think of rights of older people they automatically think of welfare. It would be much better to think through what these social supports are for in the first place and to begin reconfiguring them to have the maximum impact in terms of embedding people in their own communities.
What then of services? The right to live independently and be included in the community, as we expressed it in the disability convention, includes a right to wrap services much more insistently around personal choice. This is a trend throughout the world called the personalisation of social services and it even takes the form of personalised budgets. This is something that will happen over the next 20 years and now is a good time to make a start in the context of older people.
What then of the added value of such an instrument? One answer is that it would have no added value. It might be said that we have enough treaties already with two general human rights treaties, one focusing on civil and political rights and another on economic, social and cultural rights, as well as a plethora of thematic treaties which deal with the rights of particular groups such as women, children, migrants and persons with disabilities. One might argue why crowd the field further and thus risk even greater fragmentation. One might also argue are the existing treaties not of limited use anyway, especially in a dualist country like Ireland that often seems to strive over-mightily to keep international law out. I disagree with that argument but I agree with some of the sentiments behind it. Take, for example, fragmentation - it is bad. It disconnects the particular from the general and risks undermining general values, rights and principles. However, I ask Members to reflect that the intention behind drafting a thematic treaty is never to create an island of norms disconnected from the mainland of the two UN conventions on human rights. Exactly the opposite is the case. The intention is to particularise what the general rights mean in the specific context of a particular group. The object is never to grow ever disconnected bodies of jurisprudence on women, migrants, people with disabilities, racial minorities and now the elderly. The intention is to grow the relevant jurisprudence in order to trigger the attention of the mainstream treaty bodies. That strategy has worked remarkably well in the disability context. Therefore, to me, the argument that a specific treaty might detract from the general human rights treaties does not stack up.
Nevertheless, Members might be wondering, so what, we have a treaty that might inform other treaties but surely this is a high luxury out there in the international ether - we are more concerned with what is happening in Tralee and Kinvara. I am with them on this. Far too much attention has been lavished on the elegance of international norms, as if this alone ever changed anything. The trick is to get traction going between the international norms and the domestic process of change. This gap has been well known for decades but, I suggest, there is no need to be defeatist about it. We need a new approach to international law. Innovation can be mapped onto any new treaty on the rights of older people. For example, article 33 of the new disability treaty envisages a sort of triangulation between the domestic focal point and co-ordination mechanism for change in the executive branch, the domestic independent monitoring mechanism, which I assume will be the soon-to-be merged Human Rights Commission and Equality Authority, and civil society. This is the key to keeping the dynamic of change trending in the right direction and closely aligned to the UN treaty. I suggest it should be no different with respect to a new treaty on the rights of older persons. There are ways of opening the window onto international law without ceding command and control. The other impediment, the fact that Ireland tends to take an extreme view of dualism even relative to other common law countries, is a separate debate that deserves to be more fully and separately aired.
Some argue that we should appoint a UN special rapporteur on the rights of older persons. I have no problem with that. Mechanisms such as that one can prove extremely important provided they are adequately resourced, but an office of a special rapporteur is no substitute for a legally binding instrument. The two can sit side by side. The UN Committee on the Rights of People with Disabilities, which is the relevant UN treaty body on disability, sits side by side with the UN special rapporteur on the rights of persons with disabilities. One should not be seen as the enemy of, or the substitute for, the other.
As to the next steps to be taken, the next session of the UN working group is due to be held in summer 2012. As members are well aware, Ireland's position on such issues, when negotiated through a multilateral forum such as the UN, is forged in close alliance with our EU partners. Reportedly, the EU is adamantly opposed, or certainly not yet convinced, of the value of a treaty. I am not convinced that this opposition is based on close consultation with civil society. For example, how many older people in Ireland were even aware that this process was taking place in New York in their name? The argument that we need to prove normative gaps exist before a treaty drafting process is allowed to proceed is completely wrong-headed and was definitely not the position we took in drafting the disability treaty. It is the discounting of the humanity of older people that counts more and is the uniting experience between them and others who have had the benefit of a thematic treaty. If gaps were an insurmountable hurdle, there would never have been a convention on the rights of the child.
A new treaty should primarily valorise positive ageing and turn around encrusted layers of stereotypes and presumptions.
It should aim particularly at forging and retaining social connectedness to enhance the personhood and inclusion of older people, and the insights gained should be used to trigger the attention of the existing treaty bodies. Ways can and should be found to ensure a new treaty helps anchor national strategies. It is hoped Ireland is about to announce its national ageing strategy. Despite the very best intentions behind such strategies they tend to lose momentum as the political moment passes. The value of a new treaty would be that it would help keep us focused on the long term and not only on quick fixes from election to election.
In a few short years we will mark 1916. Freedom in a civic republic is primarily public and not private and is the right to belong, to be seen to belong, to be valued and to participate. This is the type of freedom a new treaty should embody. I commend the process of drafting a proposed treaty on the rights of older people to the House and I urge Senators to add their voices to those of others advocating for the process to proceed.