LAST MONTH, COLUMNIST with TheJournal.ie Tom Clonan wrote a highly-emotive piece for the site expressing his frustration that Ireland has yet to ratify the UN Convention on the Rights of Persons with Disabilities (CRPD).
“Personally, I’ve had enough,” he wrote. “Would Irish men and women tolerate a State that detained citizens on aircraft because of their sexuality or sexual orientation?
Would Irish citizens tolerate a system that demanded 24-hours notice of travel of the LGBTI community? A State that confined over a thousand LGBTI citizens to an Irish-style gulag archipelago of nursing homes? No. So, why impose this on the so-called ‘disabled’?
Ireland is the only EU country that has yet to ratify the Convention (the State signed it in March 2007, on the first day it was possible to do so, with then Minister for Justice Michael McDowell saying at the time his country would ratify it “as soon as possible”). But why?
What is the Convention?
The CRPD, the first such human rights convention of the 21st century, was drafted in December 2006. Fundamentally, it works as a target for nations to aim for in granting equal status to people living with disabilities, for example with regard to public transport adequately catering for wheelchair users.
The Convention states its purpose as being “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”.
Technically, signing the Convention declares an aspiration to ratification. Ratifying it means Ireland is bound to it by international law. In real terms however, it would only become the law of the land here were the Oireachtas to pass a CRPD act in the aftermath of ratification.
Regardless, over a decade later, our failure to ratify has become something of an international badge of shame.
Last year, the Netherlands and Finland ratified leaving Ireland as the only EU country that has yet to do so.
Repeatedly over the last 10 years, Irish ministers have stated that the Convention would be ratified “as soon as possible”. In May 2016, Minister of State with Responsibility for Disabilities Finian McGrath, himself father to a child living with a disability, said that the Convention would be ratified within six months.
In December of last year, the minister acknowledged that the timeframe he’d set out had been overly ambitious, and that legislative issues remained to be ironed out before ratification could take place. Two months ago, he said that the government is still “sorting out a couple of matters in relation to legislation”.
Chief executive of the Disability Federation of Ireland (and Senator) John Dolan recently described Ireland’s failure to ratify the CRPD as being “inexplicable” and a “long-running national embarrassment”.
Charlie Flanagan, meanwhile, is now the seventh Minister for Justice to hold office since the Convention was signed. Will he be the one to finally get it over the line?
Why has Ireland not yet ratified it?
From an official point of view, the failure to ratify the Convention comes down to legislation.
Ireland set out its stall early on stating that it did not wish to ratify until all of the country’s laws were sufficiently compliant in order for it to be legally viable, something described by former Taoiseach Enda Kenny as allowing “competence to be evident“.
In October 2015, the Department of Justice published a legislative ‘roadmap’ towards ratification, a list of all the laws that need to be tweaked in advance of taking the final step.
Currently, per that roadmap, the only remaining major legislative stumbling block surrounds the issue of deprivation of liberty (where an individual has been confined to an institution against their wishes for example).
Last December, the Disability (Miscellaneous Provisions) Bill was presented to the Dáil, with both then Justice Minister Frances Fitzgerald and McGrath stating that it was the final building block required for ratification. The Bill was referred to the Justice Committee for debate, something which has yet to occur.
However, the issue of deprivation of liberty isn’t currently dealt with in the Bill, which goes some way to explaining the quagmire that ratification has become.
On a positive note, some problems have been taken care of.
The Criminal Law (Sexual Offences) Act 2017, for example, recently removed the criminal offence of having a sexual relationship with someone with an intellectual disability from the Irish statutes.
The issue of assisted decision making meanwhile had been a long-standing headache for the government that was finally dealt with via the enactment of the Assisted Decision-Making (Capacity) Bill two years ago. This same Bill also took care of many of the legal knots in the rope outlined in the Department of Justice’s above-mentioned roadmap. However, while that Bill itself has passed, its main sections have yet to be commenced (put into official operation).
The latest delay regarding that commencement stems from the stated need to recruit a Director of Decision Support Service (DSS), a new office created as part of the Assisted Decision Making Act, in advance of doing so. In the wake of multiple delays, the Department of Health this week confirmed to TheJournal.ie that an appointment to the role has now been made, with the new Director set to take up office on 2 October.
So, in theory, commencing the Assisted Decision Making Act should now be a lot easier.
Which mean that, with just the issue of deprivation of liberty currently outstanding, the ratification of the Convention in the near future would seem likelier than at any other time in recent years.
Is it really necessary for Ireland to be fully legislatively compliant?
That’s a good question.
Currently, there are 193 members of the UN. 174 of those have signed and ratified the Convention.
Countries like Afghanistan, Nigeria, Mongolia, and Saudi Arabia have all ratified it – not nations you would necessarily expect to be completely on top of the pertaining legislative issues.
So why are Irish politicians so keen to dot and cross all their ‘i’s and ‘t’s?
Part of the explanation may be simply that such conventions are things that Ireland has traditionally taken its time over. It took the State three years to ratify the Convention against Doping in Sport (becoming the 89th country to do so).
The UN Convention against Corruption? Ireland took eight years following its signature before ratifying it in November 2011 (by way of comparison, the UK took six months and two years to ratify both those conventions respectively).
The Republic likes taking its time over these things. Unfortunately, in this case the extended waiting period appears to have become self-perpetuating.
“Lots of countries have ratified it without changing laws,” says Dr Eilionóir Flynn, deputy director of the Centre for Disability Law and Policy (CDLP) at NUI Galway.
Flynn suggests that Ireland’s recent history more than likely also played a part in the delay.
“There wasn’t much focus on this during the recession. It wasn’t until 2011 or 2012 that it started to come a bit more onto the government’s radar,” she says.
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The real problem is that the government has backed itself into a corner by saying it wanted to get the legislation right. It keeps saying it’s in a hurry. But to get everything right is taking more and more time. It’s Catch 22.
Which means that ten years later Ireland has failed to ratify a convention that the powers-that-be consistently tell us is top priority. Even when the State finally gets round to doing so, might it not be said that much of the good has been taken out of the move by the extended delay?
“I don’t know if it’s been worth the wait,” says Flynn. “No country is in complete compliance. It’s a bit of a misnomer to say we want to get all the laws right.”
If not now, when?
So, to the million dollar question – when will our country finally ratify? True, there appears to be just the one problem left to be solved. But that is no guarantee of a speedy resolution, as anyone who follows the goings-on in Dáil Éireann can attest.
Technically, the Department of Foreign Affairs (DFA) has responsibility for the process. When contacted, however, a DFA spokesperson deferred our queries to the Department of Justice, which has ownership of the legal side of things.
A spokesperson for that Department informed TheJournal.ie that ratification is a “top priority”, and that “significant progress has already been made” with regard to achieving that aim.
They added that “ratification of a convention before we have amended domestic legislation that contradicts it makes no sense and does nothing to ensure compliance or to protect the people for whose benefit the Convention exists”.
Costs, or a lack of funding, are definitely not the issue according to the department:
“None of these issues relate to cost – and therefore the question of a cost-benefit analysis does not arise – but instead are about ensuring that we have a robust legal framework and practical measures in place to achieve the Convention’s objectives.”
This is a sensitive and important issue and we must get it right.
Still, it does appear that we’re finally getting there.
That said, multiple Irish politicians have been using the phrase “as soon as possible” since it was first signed – so their utterances need to be taken with something of a pinch of salt.
“Who knows regarding the timelines,” says Flynn.
Maybe the miscellaneous provisions Bill will be the last link in the chain. But because it’s 10 years now the government can’t just turn around and change things because it would undermine everything that it’s been saying for a decade.
If she had to take a guess?
“I would have said maybe year and a half, but the appointment of a Director of DSS does change things a little. It could be another year.”
After over a decade, what difference will another 12 months make.
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