SFC Disability Policy Session - James Cawley with Claire Kenny
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/cdlp) 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/gender-recognition).
- 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”
- Sometimes the law changes AFTER we have already changed our awareness or attitudes. Examples of this include the Referendums (see – www.citizensinformation.ie) on Abortion Rights (see – www.msichoices.org.uk/abortion-services/travelling-from-northern-ireland/travelling-from-ireland) and Marriage Equality (see – Making History – GAZE celebrates marriage equality vote in Ireland).
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 – A Plain English Guide to Political Terms – pdf) 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 – Drink driving offences
- Smoking Ban Law in place in public places (see – www.rte.ie/archives – No more smoking)
- Ban on Using Mobile Phones When Driving
- The Right to Vote (Electoral Act from 1992 onwards) (see – www.gov.ie – Information for voters with disabilities)
Laws That Have Not Made Things Better
- The Disability Act is still not fully commenced – (see – ilmi.ie – ILMI Guide to the law in relation to disability pdf) 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 – Information for voters with disabilities)
- 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 is quite 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 – Report cost of disability / & www.independent.ie – People do not realise just how expensive it is for a person with a disability to live & www.irishtimes.com – Social affairs/disabled people face extra costs through no fault of their own says campaigner)
- Lack of Accessible Housing both in the private market and the local authority stock (see – www.youtube.com – Our Housing Rights: Tackling the Housing Crisis Disabled People Face) and Building Regulations – not working and compliance is an issue (see – www.nda.ie – An Operational Review of the Effectiveness of Section 25 of the Disability Act 2005: NDA Report)
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 legislation. Asking 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 its 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 sneeds, 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 – Knowledge is Power When Advocating for Disability Rights) 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:
- 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.
- 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 – www.data.oireachtas.ie – A Brief Guide To How Your Parliament Works.pdf)
- Who is the Minister’s adviser on policy?
- Who are the Civil Servants in the department? (see – www.citizensinformation.ie – Government in Ireland)
- Who are the political party spokespeople on this issue?
- Who are the Chairs & Members of related Oireachtas Committees? (see – www.oireachtas.ie/ – Disability matters/membership)
- 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?
- General sources of lawyers who can help with drafting – PILA (see – www.pila.ie – The alzheimer society of ireland voting rights and Demenita)
- Find out if draft legislation has already been proposed – The Work Relations Commission (see – www.workplacerelations.ie – Workplace Relations Notices)
- 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 – Health Topics Disability)
- 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 – Disability Legal Information Clinic)
- 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
Government Bill – The Assisted Decision-Making (Capacity) Act (2015), was passed – but not with all the amendments we wanted – (dobbynmccoy.com – Assisted Decision Making Capacity Act 2015
& www.youtube.com – 10 Key Points | The Assisted Decision-Making Capacity Act). 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 ratifing the UNCRPD in 2018 (see – Inclusive Research Network/IRN Response to Ireland UNCRPD – Press Release.pdf).
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 – Senator launches right to love bill for people with Intellectual Disabilities).
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 (see – www.unirights.ie – Sexual Offences).