THE DISABILITY BILL DEBACLE

The Disability Bill announced late in December 2001, after years of anticipation, was met with widespread criticism by Irish disability groups.

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The Disability Bill was presented to the Dáil before Christmas. According to its preamble it aimed to make ‘further and better provisions for persons with disability in respect of accessibility, and employment in the public service’. It also proposed two entirely new services: advocacy to be provided under Comhairle, and needs assessment to be provided through the health boards. Other measures included added powers to the NDA (to monitor compliance with the Act), a moratorium on changes in genetic testing regulations, and the establishment of a Centre of Excellence for Universal Design.

This Bill was introduced by the Government following a commitment given earlier in the autumn when they voted down the Disability Commissioner’s Bill 2001, which had been drafted by the National Parents and Siblings Alliance.

So what was the government’s proposed Disability Bill all about? Why was its reception so mixed? There were good things in it but it had serious omissions and some provisions seemed inadequately thought out and did not dovetail with other legislation.

First, on the positive side was the timetable put on accessibility, with interim dates for 30% and 60% accessibility. Someone is finally serious about allowing wheelchair users into all public buildings (not just new ones) and onto buses and trains. Advocacy and assessment of needs, both of which featured prominently in Strategy for Equality, have finally got themselves onto a schedule. The proposed Centre of Excellence for Universal Design would be welcomed. So would the genetic testing provision, although something longer-term needs to be worked out if people with hereditary disorders are not eventually to be disadvantaged. The NDA’s new monitoring and enforcement powers would be a welcome move. Well-meaning Acts are all too often left toothless.

However in its proposed guise the Bill gave plenty of scope to the carper. A major concern must be those weasel words, which recurred throughout, without getting into the definition net at the start. These are ‘reasonable and practicable’, ‘disproportionate’ or ‘not justified on grounds of cost’, and they are the escape routes—perhaps inserted with an eye to the constitutional case over the first Equal Employment Act—which could make the noble intentions on access meaningless. The only saving grace is that the NDA may get to rule on what is reasonable and practicable at the ramp-face. Another disquieting tendency was a fondness for the subjunctive: The Minister may, rather than the Minister shall, which to the mind of the cynic suggests procrastination and making it up as one goes along.

Reading the Bill, you got a sense of déjà-vu. Lots of places were to become accessible. Hurrah! But wait a minute? Weren’t they meant to be accessible since the last set of Building Regulations? The public service (with certain exceptions) is to ensure that 3% of its staff are people with disabilities. That magic 3% has been appearing in a show near you since 1977. The Bill promised to give it statutory effect—as far as is practicable of course. Does this mean it will really happen? Oddly this provision ceases in 2010- Why? Is Nirvana on the way and will we be able to throw out our quotas then? Again a large dose of faith is required.

The proposed introduction of assessment of needs was a positive step long sought by disability organisations, but the details fall short of what was desired. Only ‘health and personal care needs’ were to be assessed. Disentangling a person’s health needs would be difficult, particularly in the case of children – and would keep gangs of specialists in business. Where is the line between them and educational, employment and leisure needs to be drawn? Even Strategy on Health admits that health gain and social gain are closely linked. We are promised a new bill on Disability and Education, but why couldn’t the Minister tuck in a few educational provisions here while we wait. The other problem is that the proposed body charged with assessment is the same body that will (hopefully) deliver the service. The temptation to assess a person as needing the type of services available—or to assess the person as needing yellow-pack rather than gold-plated services—would be considerable. It may be possible to keep the assessment office separate from the disability service office—but this needs to be written into the legislation. Another unpromising sign is that at the same time as this Bill was being introduced, allocations to service providers for new services have been cut- Assessment of need is of little use if money for services and aids is lacking. The dedicated cynic might even suggest that the Bill was a smokescreen, distracting attention from these cuts.

The provision of advocacy is welcome, but this service must be seen to be independent if it is to gain the trust of people with disabilities and their organisations and a procedure for settlement of disputes must be included. People with disabilities should not be automatically assigned advocates; some are perfectly capable of advocating for themselves, with sufficient information and transparency. Conversely, provisions for people unable to make decisions for themselves, particularly those resident in institutions, needed to be much more specific. The advocate’s long-term role, access to FOI information and medical case-conferences needed to be spelt out. Health professionals should not get to define the rules in this game.

Although the NDA would gain a few more teeth from this Bill, biting power for people with disabilities would now be spread between three agencies. The Equality Authority has responsibility for the Employment Equality Act and the Equal Status Act; the NDA would have the job of monitoring access and the employment quota; and Comhairle were to be charged with the advocacy service in this Bill. The hope would be that they all bite together—otherwise the apple may just roll away.

Another worry which has been strongly articulated by disabled groups came in the recesses of the Exclusions Section. An opaque little paragraph (47) on Civil Liability stated that you wouldn’t be able to take a civil action if a public body fell short of its new duties under the Act. You must presumably wait until the NDA sank in its teeth on your behalf. Was the proposed Disability Bill then half-strength legislation? What about a person’s rights under the Constitution? This provision exists ‘without prejudice to any right of action which exists apart from the Act…’ Oh Lord, where is the Plain English Society when we need it? Or was there a method in such obfuscation?

Although the timescales for physical access were precise, much else in the Bill was dangerously vague. It’s not as if these issues are virgin territory for legislators (Australia, the US, Canada and even the UK have cleared the way for us already.). There were pages on procedures and monitoring, prosecution and penalty, but not a single paragraph offering incentives to local authorities—or more importantly to small businesses which were not covered by this Bill—to make their premises accessible before the final dates. And without incentives the number opting out under the ‘disproportionate cost’ clause would be considerable. And psychologically would it not be a good idea to give prizes to the accessible, rather than proceed by sanctions alone?

Disability groups have taken issue with this legislation because it is duty- rather than rights-based, and thus runs contrary to the major changes since Strategy for Equality. Given that these organisations have put such a lot of work and thought into possible legislation (three organisations hosted the Get your act together conference before Christmas), it is difficult to understand what could be gained by introducing a bill that offends them. A Disability Bill without people with disabilities? Hamlet without the prince.

Since this piece was written, a large meeting took place in the Mansion House addressed by Donal Toolan, Deirdre Carroll, Kathryn Sinnott, John Dolan, Seamus Greene and Paul Hogan from People with Disabilities Ireland. There was a good deal of anger at the deficiencies of the Bill and its lack of a rights focus. On the same day, parts of the Bill (including Section 47) were withdrawn by Minister Wallace, who said she would consult on the other matters at issue. It now seems evident that the Bill will not be passed in its present form, nor during the present Dáil.

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