Human Rights in Ireland

Today, the Oireachtas Committee on Justice, Defence and Equality will hear submissions from civil society groups on the proposed Mental Capacity Bill. The organisations participating in the hearing are: Inclusion Ireland, Members of the Psychological Society of Ireland, the Alzheimers Society of Ireland, the National Institute for Intellectual Disability (Trinity College Dublin) and the Mental Health Commission. David Stanton TD, Chair of the Committee, has acknowledged that this piece of legislation is viewed as the main barrier to Ireland’s ratification of the Convention on the Rights of Persons with Disabilities, and has stated: “We hope that the contribution made by this Committee will help to create a progressive law which ultimately enables Ireland to ratify this crucial convention.” This is an important point to emphasise – as while calls for the legislation to be published have been repeatedly made since Ireland signed the Convention in 2007, it is vital that such legislation is actually compliant with the Convention, otherwise, it will not achieve the desired goal, which is to enable Ireland to ratify the CRPD.

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We are delighted to welcome this guest post from Aisling de Paor, a Ph.D candidate in the Centre for Disability Law and Policy at NUI Galway, and Irish Research Council for the Humanities and Social Sciences (IRCHSS) scholar. Aisling is a graduate of NUI Galway (BCL) and University College Cork (LL.M).  Aisling qualified as a solicitor and specialized primarily in employment law.

On Saturday 19^th November 2011, the Centre for Disability Law and Policy (in conjunction with the Burton Blatt Institute, Syracuse University, USA) hosted a conference entitled ‘Genetic Discrimination – Transatlantic Perspectives on the Case for a European Level Legal Response’ at National University of Ireland Galway.  This international conference, which was chaired by Justice John Mac Menamin of the High Court, was the first of its kind in Europe and brought together a diverse range of leading experts in the area, with the objective of exploring the case for a European level response to protect the privacy of genetic information and to prevent genetic discrimination. The conference highlighted the interdisciplinary nature of this area and focused on the interaction between genetic science, technology, ethics and the law, and in particular, how best to regulate this complex area. Read Full Post »

The Committee of Ministers of the Council of Europe last week adopted a Recommendation that seeks to increase the participation of persons with disabilities in political and public life at all levels − local, regional, national and international.  The Recommendation is available here.  Between 80 – 100 million persons with disabilities live in the 47 Member States of the Council of Europe.  The Council of Europe noted that persons with disabilities often do not take part in the decision-making process as they face legal, physical, and societal barriers to participating. Through this Recommendation the Committee of Ministers seek to challenge this exclusion. The Recommendation aims to remove barriers and create conditions for active citizenship, without discrimination, for all and in all life settings. The Recommendation stresses that all persons with disabilities are entitled to express their views and should not be deprived of their right to vote or stand for election on the basis of disability.  This is a very progressive statement from the Committee of Ministers and goes some way towards countering the repressive position of the European Commission for Democracy Through Law (the Venice Commission) regarding the eligibility of persons with intellectual disability to stand for election and vote.   The Venice Commission in its“Interpretative Declaration to the Code of Good Practice In Electoral Matters on the Participation of People with Disabilities in Elections” stated:

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“commends the State party for establishing independent monitoring mechanisms in full compliance with art. 33.2 of the Convention.” (my emphasis)

‘States Parties shall, in accordance with their legal and administrative systems, maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention. When designating or establishing such a mechanism, States Parties shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights.’

The Centre for Disability Law and Policy, NUI, Galway will host a one day conference (in conjunction with the Burton Blatt Institute, Syracuse University) entitled ‘Genetic Discrimination – Transatlantic Perspectives on the Case for a European Level Legal Response’.  The conference is taking place here in NUI, Galway on Saturday, 19th November, 2011.  The purpose of this conference is to examine the case for a European level legal and policy response to protect the privacy of genetic information and to prevent genetic discrimination, particularly in the employment and insurance contexts.  This conference recounts recent scientific advances that make genetic testing more and more accurate and more sophisticated (and which offers the prospect of being able to detect the onset of future disabilities).  It looks at the ethical debate on how to balance competing rights and interests (the right to privacy of the individual and the ‘need to know’ of business and other interests).  It examines the balance struck in the Genetic Information Non-Discrimination Act (2008) in the US.   Keeping in mind the technological advances (and its future orientation) the ethical context and the balance struck in the US legislation it will examine the options for a European legal response possibly in the shape of a new non-discrimination (genetic information) Directive (or an amendment to existing Directives) and whether a sufficient case exists of such a response.  The conference is aimed at legal practitioners, medical practitioners, academics and researchers, NGOs and those involved in disability issues, bioethics and practice. It is also aimed at those interested in medical testing generally as well as genetic testing specifically and the implications of these practices (particularly in the employment and insurance contexts).

See here to register and for more information.

Human Rights in Ireland regular contributor Dr. Eilionóir Flynn’s book entitled “From Rhetoric to Action: Implementing the UN Convention on the Rights of Persons with Disabilities” was launched yesterday at the United Nations.    The book (published by Cambridge University Press) is a global comparative study of implementation and monitoring mechanisms for national disability strategies.  It comprises a comparative study that was conducted at international, regional, and comparative country levels and highlights critical success factors in implementing disability strategies or action plans worldwide.  The book is amongst a growing body of literature on the UN Convention on the Rights of Persons with Disabilities (2006).  It explores emerging synergies between what is required to implement principles of international law contained in the Convention and what is possible to achieve through national policy and systems development.  The Centre for Disability Law and Policy, NUI Galway ran a one-day international conference on the theme of the book last December.  A video of the proceedings of that conference is available here.

Eilionóir book identifies a number of critical success factors for implementing and monitoring strategies – these include leadership from government and civil society, participation of disabled people in implementation and monitoring, transparency and accountability in reporting on progress, independent monitoring and external review, and the ability to measure progress with indicators of disability equality.  This book is very timely as many countries have ratified the Convention or in the process of doing so and this book contributes to the core comparative knowledge to drive that process.  It is essential reading for anyone interested in disability law and policy.  It will be particularly useful to activists, policy makers, researchers, academics, NGOs and practitioners.

The Table of Contents is as follows:

1. Comparative international trends in disability law and policy;
2. Regional perspectives on disability strategies and action plans;
3. Comparative country evaluation: a snapshot of approaches to national disability strategies;
4. Success factors in delivering a national disability strategy – lessons from international and comparative experience;
5. Identifying the golden threads in Irish disability law and policy;
6. Achieving Ireland’s national disability strategy – a case study in implementation and monitoring at domestic level;
7. Showcasing domestic progress and achieving international standards;
8. Structural ingredients for furthering national disability strategies;
9. Measuring progress in achieving aims of national disability strategies – key success factors.

We are delighted to welcome this guest post from Noelin Fox.  Noelin is a Ph.D candidate in the Centre for Disability Law and Policy, NUI Galway.  Her research examines the right to independent living provided for in Article 19 of the UN Convention on the Rights of with Disabilities.  Noelin has worked for many years in intellectual disability services’ in Ireland.

This month, my daughter, like thousands of her peers across the country, is moving away from home for the first time.  She is 18 years old and is taking up her place in college, embarking on her journey to independence.  Over the coming months she will have to learn a whole array of new skills which she has no previous experience of.  She will have to manage her (limited) budget, feed herself properly, learn to live with people who are not her immediate family, manage the academic work she is assigned, deal with the bank, figure out bus time-tables, forge new friendships and a whole array of other tasks.  In the process she may well make mistakes.  She may submit work late for college, spend too much money on going out leaving herself short at the end of the week, get involved in unwise relationships, among many things.  Hopefully she will learn from such mistakes and manage better the next time.  Throughout this process she will have plenty of support – from us her parents, from the school-friends she is living with and from new friends – and if she gets her heart broken or bruised we will take care of her until she heals and help to her move on.  The college too is well attuned to the needs of in-coming first years – it has good structures in place to ease them into college life and help ensure they progress through their first encounters with third level academic studies.

How different all this would all be if she had a disability, especially if she had an intellectual disability.  Would she be leaving home at all at this stage of her life at all?  Probably not – Read Full Post »

An alliance of human rights groups has spoken out against the forced sterilisation of women with mental disabilities in France.  See here and here.     Last week the Center for Reproductive Rights, European Disability Forum, Interights, International Disability Alliance and Mental Disability Advocacy Center; submitted written comments to the European Court of Human Rights in the case of Gauer and Others v France (Application no 61521/08).  A copy of the written comments is available here.    Gauer and Others v France is a case involving five women with intellectual disabilities who were forcibly sterilised.  The decision of the European Court of Human Rights will be an important statement on the reproductive rights of persons with disabilities and the positive obligations on the States in safeguarding persons with disabilities against abuse.

The European Court of Human Rights has used the UN Convention on the Rights of Persons with Disabilities (CRPD) as an interpretive aid to the European Convention on Human Rights and it is clear that the ECHR has been edging closer to the philosophy of legal capacity as set out in Article 12 of the CRPD.  In Shtukaturov v Russia the ECtHR stated “…the existence of a mental disorder, even a serious one cannot be the sole reason to justify full incapacitation”.  This was an important statement by the ECtHR acknowledging that there was a lack of proportionality in the legal response to the person’s capacity in that case.  Moreover, the Shtukaturov decision is important in that ECtHR acknowledges that the deprivation of legal capacity constitutes a serious intrusion into a persons right to respect for their private and family life under Article 8 and domestic legislation has to provide “a tailored-made response” in this area.  So this case will provide an invaluable opportunity for the Court to engage with the CRPD and further develop its jurisprudence on the right to legal capacity.  Other human rights that will be engaged under the European Convention on Human Rights include:

• Article 3 (prohibition of torture)
• Article 8 (right to respect for private and family life)
• Article 13 (right to an effective remedy)
• Article 14 (Prohibition of discrimination)