Strategies for Change

Independent Living Movement Ireland

Legislation and Change

Strategies for Change Session at NUI Galway

In our last Strategies for Change Session, we had Eilinóir Flynn from the Centre of Disability Law and Policy at NUI Galway (see – www.nuigalway.ie) come and talk to us about how we might use legislation to bring about change for disabled people.

Eilinóir kicked off her session by telling us that law and justice are two very different things. When Eilinóir decided to go a study law, her dad told her that “when you go to the courts, you get law, and you do not necessarily get justice”, hence knowing the difference.

So, if we (as activists) are trying to use any law to create change, we need to keep in mind that:
  • Sometimes the law can change FIRST regardless of people’s awareness or attitudes – this can be about legislators “trying to be progressive and “looking good”. An example of such is our Gender Recognition Law (see – www.teni.ie).
  • this was not an issue that a lot of people campaigned for, but sometimes the law changes before society’s awareness or attitudes have changed, and “this sometime helps to positively change attitudes”
Hence, we need to think about which one of the above could serve us best:
  • Try to change the law first before attitudinal change has happened and hope that the law will help improve our thinking
  • Or deciding have attitudes changed adequately so we have enough people to get behind what we want in relation to changing a law that improves the lives of disabled people?

Eilinóir told us that “changing the law is never going be the whole solution”. Sometimes, changing the law can be the start of a bigger change in how society treats disabled people and other times not.

Eilinóir also told us that laws that go through the Dáil and the Seanad (see – www.nala.ie) is always better than having the “whole country vote” to decide (referendum) whether disabled people’s rights are being respected.

Question to the Group
Laws that have Made Things Better and Laws that have Made Thing’s Worse – Feedback
Laws That Have Made Things Better
  • Drink Driving Law – penalty points on your license that could result in a person not being allowed to drive for a period of time (see – www.citizensinformation.ie)
  • Smoking Ban Law in place in public places (see – www.rte.ie)
  • Ban on Using Mobile Phones When Driving
  • The Right to Vote (Electoral Act from 1992 onwards) (see – www.gov.ie)
Laws That Have Not Made Things Better 
  • The Disability Act is still not fully commenced – (see – ILMI Guide to the Law in Relation to Disability) and the use of the Medical Model Definition of Disability in legislation is still a real issue
  • The Assistive Decision Making (capacity) Act, supporting people to make decisions if required is still not fully commenced (www.gov.ie)
  • The Equal status Act’s have lots of loopholes and not very good at protecting disabled people, examples include reasonable accommodation and “what constitutes reasonable”. It isquite restrictive at present, especially when it comes to goods and services. Equality under the act concerning employment is far more robust as EU Law directs its content.
  • Protected/listed public buildings is another issue in that these are outside of the law to make them anyway accessible
  • Means Testing rules in terms of assessing a disabled persons income is quite restrictive and “it does not factor in” the equalities that disabled people face and the additional cost to being labelled disabled (see – www.rte.ie & www.independent.ie & www.irishtimes.com/news)
  • Lack of Accessible Housing both in the private market and the local authority stock (see – www.youtube.com) and Building Regulations – not working and compliance is an issue (see – www.nda.ie)

Some of the above problems are about the “text of the law”and some things “relate to enforcement.So, as activists, we need to think about “does the law in question protect disabled peoples rights and if not, why not”,- this is one of the ways of building a case to make change happen in legislationAsking ourselves –

  • Does the law in question “need to be scrapped” and written from scratch?
  • Or do we need to put things in place to monitor it
  • Or do we need to add things to the law to make it more effective?

So sometimes, we don’t need to change the whole law; we “could just get the Minister to pass a regulation or a piece of guidance that would change the way the law is being implemented”. And in some ways, this is easier because it does not have to go through the whole process of “debating” in the Dáil and Seanad.

What Law Can and Cannot do

Legislation CAN change a system and it CAN change practices; it CAN be used if a law states that a person should be able to do XYZ or should be given A, B or C and it’s not – then and only then the person CAN take a case to court, but as we have learned over the year, this is not a very easy process.

Sadly, we must always keep in the back of our minds” that law CANNOT change attitudes. So even if the law says that people should not be discriminated against, “which it does,” this does not mean that it does not happen. Therefore, “making/effecting change” is also about “changing attitudes in society”. And “sometimes this can also mean changing our own”.

Also, legislation CANNOT guarantee a certain amount of money or a certain type of support service for “a specific disabled person”. Unfortunately, this is one of the Disability Act’s (2005) issues. All the Disability Act does is say that a disabled person CAN apply for an Individual Assessment of Need (IAN), and while it will detail a disabled person’s actual support needs, disabled people have no right to all the things in the assessment. Legislators CANNOT and will not write an “amount of money” that every disabled person needs to live an ordinary life. Hence the clause to only having the right to an IAN and depending on what resources are available the Government will try to meet an individual’s needs “as best they can”. Ireland as a State will always use the MANTRA “we do not have infinite resources”, so we CANNOT give everyone everything that they need in any given every year – hence the use of ever changing priority lists.

Thus, it is important for us (as activists) to be clear about what the law CAN do and what it CANNOT do, so we “don’t set our sights on something that we will never win”. 

What we CAN do is become aware of when it is not working, and then we can challenge its injustice and/or inequality. Eilinoir told us that she is not suggesting that the “law system is fair, “but it is the only one we have, so we need to work within it as best we can. So setting goals and being strategic is very important, also realising that “information is knowledge and knowledge is power” (see – www.rootedinrights.org) is very important. Eilinoir also went on to say, “in the Irish context” making change or getting your rights met is often about “how loud of a noise a person/group can make” and who do you/we know that is influential”.

Our system CAN be good for individual disabled people change – fixing something for just one disabled person to shut them up (our current ad-hoc Personal Assistance Service is an example of this) but fixing the whole system for everybody is not on their agenda.

Nevertheless, we should always look at how law can bring about change if it’s not working for us. However, we need to be aware that the law cannot be specific to the outcomes for every disabled person. This is because the law cannot predict all situations that might arise for individual disabled people.

Different Routes to Getting Legislation Passed
There are TWO ways to get legislation passed:
  1. Government Bill – this is where a Government Minister introduces a Bill to the Dáil or Seanad. The pro’s: most likely will get passed. The cons: more difficult to get the Bill to say what we want or have it changed during the debates.
  1. Private Members Bill – this is where opposition TD/s and or Senator/s introduces a Bill to the Dáil or Seanad. The pro’s: easier to convince them to introduce a Bill the way we want it. The con’s: less likely for it to be passed. It also cannot be about government spending additional money.
Where To Start
  • Build your evidence: research what is wrong with the law and how it currently affects people’s lives. Decide what the law should look like instead
  • Create a campaign/plan/strategy – decide who you need to involve to make the case for getting the law changed and bring them together. Find influential people who can highlight the issue. Get some lawyers to help with drafting
  • Get attention – ask for a meeting with the Minister responsible for the law that needs changing. Meet opposition politicians as well as party spokespeople responsible. Write a press release. Create a hashtag. Organise a protest.
Political Research – Questions We Need to Ask Ourselves and Find the Answers Too Include:
  • Who is the Minister – are they a Cabinet Minister or a Minister of State? (see – data.oireachtas.ie)
  • Who is the Minister’s adviser on policy?
  • Who are the Civil Servants in the department? (see – www.citizensinformation.ie)
  • Who are the political party spokespeople on this issue?
  • Who are the Chairs & Members of related Oireachtas Committees? (see – www.oireachtas.ie)
  • Who has asked parliamentary questions on this issue?
  • Has anyone made good speeches on this issue in the past?
  • Who is generally progressive and interested in human rights?
Legal Research
  • General sources of lawyers who can help with drafting – PILA (see – www.pila.ie)
  • Find out if draft legislation has already been proposed – The Work Relations Commission (see – www.workplacerelations.ie)
  • Gather statements from UN / international bodies on what this law should look like: CRPD Committee, Special Rapatour on Disability, and the World Health Organisation – (see – www.who.int)
  • Seek out solicitor firms or groups of law students supervised by academics might be able to help pro bono with background research, e.g. on comparative law – (see – www.nuigalway.ie)
Campaign Research
  • Who might be an influential spokesperson for the campaign that government will listen to?
  • Talk to other campaigners about what worked for them and why
  • Maximise social media platforms – find out who has a lot of followers that you can get to share the campaign?
  • Prepare for media interviews (TV, radio) – agree on a small number of talking points which all spokespeople will stick to
Two Stories of Drafting Laws
Story 1

Government Bill – The Assisted Decision-Making (Capacity) Act (2015), was passed – but not with all the amendments we wanted – (www.dobbynmccoy.com & www.youtube.com). It is still not fully commenced and more importantly it is not compliant with human rights. Also Ireland entered a reservation on Article 12 when ratifying the UNCRPD in 2018.

Story 2

Private Members Bill – Senator Katherine Zappone launched the “Right To Love” Bill for the right of people with intellectual impairments to have intimate relationships. – (see – www.irishtimes.com).

Katherine’s Strategy Included:
  • Contacting the Centre for Disability Law in NUI Galway
  • Organising meetings with lots of disabled people (to help her understand and inform the Bill)
  • Drafting the legislation with help from the Centre for Disability Law
  • Wrote her speech
  • Launched event to publicise Bill with speakers and media engagement
  • Had meetings with Government officials

But the Bill was not passed, and instead, the Government introduced the Criminal Law (Sexual Offences) Act in 2017.

Strategies for Change Session at NUI Galway
Other things to know

Other things to know about when Activists get together to use the law to legislate for change for disabled people:

The Public Interest Law Alliance – PILA 

The Public Interest Law Alliance (PILA) is part of the Free Legal Advice Centres – FLAC) and is a public interest law network that strive for  engagement with both the legal community and civil society. It’s remit is in using the law to advance social change for everyone. (see – Guest Piece by Stephen O’Flynn of ICI on family reunification and disability paymentsi & Inclusion Ireland, LinkedIn and Mason Hayes & Curran).  PILA have created partnerships with some very big law firms that will:

  • Do Pro Bono work
  • May take cases for people 
  • Can help draft legislation. This means that a group of activists can get lawyers for free to support them to draft legislation and/or advice you on the wording regarding the legal terms that you need to use when trying to draft up a legal piece of legislation.
The Law Reform Commission 

The Commission is an independent body established under the Law Reform Commission Act (1975). The role of the Commission is to keep the law under review and conduct research with a view to reform the law if required. They are important because they might have done a report on your issue in the past or report on something related to your issue. Also, at the end of every report they have a draft law so as activists we can use this “as a starting point”. But be mindful that they do not have a huge amount of disability related work completed, but it is definitely worth checking them out because “our government is more likely to listen to the Law Reform Commission more so than other bodies may be in terms of what the law should look like” (see – https://www.lawreform.ie). 

Look to the UN system and international law. This is about finding out what the UN committee has said about your issue. If it is a disability rights issue there is UN committee on the Rights of Persons with Disabilities and there is also the European Court of Human Rights (ECHR – Film on the European Court of Human Rights). 

The Special Rapporteur 

We have Gerard Quinn; he is Irish and is the Special Rapporteur on the Rights of Disabled People and he might have made a statement about your issue (see – Special Rapporteur on the rights of persons with disabilities). See what Gerard had to say about disabled women and girls in 2019 – Expert Group Meeting on the intersections between women’s rights and the rights of person with disabilities & access to justice for disabled people – International Principles and Guidelines on access to justice for persons with disabilities & Making sure people with disabilities get justice

There is also the World Health Organisation and the International Labour Organisation if it’s an employment issue (see – www.ilo.org). So, the advice here is to find out what “best international advice” there is and present it to government. 

Individual Solicitor Firms or sometimes universities has students that are supervised by researchers e.g. Dr. Eilinóir Flynn (see – www.nuigalway.ie – Eilionoir Flynn). Eilinoir also has other people on her team that might be able to do a piece of background research like looking at what laws have been introduced on related issues in other countries. 

The Disability Information Law Clinic (see – www.nuigalway.ie – Disability Law Policy & Easy Read – Clinic Policy.pdf) at NUIG could be another way to get help as activists. 

Statutory Instruments 

Statutory Instruments is a form of legislation which allows the provisions of an Act/Law made by government to be subsequently brought into force or altered without government having to pass a new Act/Law.

So, if there is an Act/Law that has already been passed by government and it says how for example the Social Welfare System, or the Education System “should work” the Minister has the power to make changes. It is important to note here that a Minister cannot introduce new things and it cannot change what the original Act/Law says but they can tweak things a little bit so a statutory instrument can be used to change a part of guidance or a code of practice or explain the interpretation of a law in a different way (see – Social Welfare (Consolidated Claims, Payments and Control) (Amendment) (No. 10) (Income Disregard) Regulations 2021 (see – Disability Allowance after Learning of PhD Student’s Case & Disabled Drivers and Disabled Passengers (Tax Concessions) (Amendment) Regulations 2018 – www.irishstatutebook.ie for two good examples of how Statutory Instruments were used to effect change. 

Using Our Lived Experience as a Tool to Strategise for Change

Advice from Eilinóir – We need to be very mindful of having to tell so much of our personal stories to get basic things for example, housing or person centred human support. 

We should never underestimate the aftermaths for individuals”. 

The public love these stories, so do media and government. But we must be careful in terms of what we are asking of people.

We must be very careful when we are working on campaigns that we, “as much as possible” try to prepare people if they do want to share their stories to support the campaign. 

We need to ask ourselves “what support is going to be there for people afterwards to deal with the fallout”. And sadly, that’s not something that campaigns have done very well in the past. We really need to think about this reality if we want to change things. What are we prepared to give up in order to achieve what we want and how are we going to “mind people because we have a responsibility collectively – we cannot be throwing people into these situations without being there for them afterwards”.

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