The God Squad

The Irish Times – Monday, October 4, 2010

The UN convention puts people with disabilities at the centre of decision-making concerning them, writes GERARD QUINN

IRELAND HAS yet to ratify the UN convention on the rights of persons with disabilities. It is somewhat surprising that we have not yet done so. The convention entered into force in May 2008 and now has 82 ratifications, something of a record.

About 16 EU member states have ratified it and the EU, as such, is set to ratify soon. Indeed, this will be the first UN human rights convention that the EU will ratify. The US has signed and ratification awaits senate approval. The convention is set to be a major driver of disability law reform throughout the world.

The fundamental premise of the convention is the need to move decisively away from charity and pity and toward respect for the dignity and autonomy of persons with disabilities. Its purpose is to secure their equal and full enjoyment of all human rights. The convention does not purport to create new rights – it only aims to make the full sweep of existing rights equally effective for all persons with disabilities.

Among those urging Ireland to ratify the convention is former EU commissioner Pádraig Flynn, who as commissioner for employment and social affairs pushed forward the rights of people with disabilities.

The overarching obligation on states in the convention is to secure all human rights for persons with disabilities without discrimination. It is this emphasis on non-discrimination that enables the EU as such to ratify since EU-level competence in the non-discrimination field is quite strong. The convention embodies one of the great innovations of Anglo-American legislation on disability discrimination – the obligation to engage in “reasonable accommodation” to adjust to the difference of disability.

The convention innovates by creating obligations to remove barriers and create favourable conditions for the equal enjoyment of rights. Most of the substantive articles tackle these obstacles by creating targeted obligations. For example, article 24 on the right to education effectively requires inclusive education.

Some of these steps require resources – many do not. The interesting thing about the convention is that it does not require everything to be achieved at once. Some deference is due to states with respect to the allocation of scarce resources. States are, nevertheless, expected to “progressively achieve” these rights.

The important point is that states must be able to point to a positive dynamic of change – one that places a floor of provision underneath persons with disabilities and that continues to move forward. This is of critical importance in recession where the temptation in many states might be to cut services indiscriminately.

Much of the convention, indeed its core objective, focuses on restoring voice and autonomy to persons with disabilities. Perhaps the most important article – and certainly the most difficult for states – is article 12. This insists on the right of people with disabilities to make decisions for themselves and on rolling back over-broad legal incapacity laws.

Over-broad incapacity laws are common throughout the world, not just in Ireland. They come from a time when people with disabilities were dealt with as “objects” to be managed rather than as “subjects” bearing equal rights. Article 12 – on one reading – insists on a plenary right to decide for oneself and a corollary right to supported decision-making when that capacity is reduced. This article – like all other provisions in the convention – makes no distinction between those with intellectual disabilities and others.

Many states are innovating with respect to article 12. Hungary, for example, recently abolished its guardianship laws. Ireland has reportedly delayed ratification of the convention until it can reform its outdated legal incapacity laws.

Whatever else Ireland does it will, at a minimum, have to make explicit provision for a right to supported decision-making in any new legislation. Practice in British Columbia shows that this need not be cost-intensive. Access to justice similarly requires a system of advocacy to be in place to help people vindicate their own rights.

Restoring voice and decision-making power is one thing. Respecting the wishes and preferences of the individual is another. That is why the convention contains a provision dealing with the right to live independently (article 19). This assures to persons with disabilities a right to choose where and with whom to live. Significantly, this provision also effectively calls for the reconfiguring of supports and services to respect the persons’ wishes and preferences.

This will have huge significance in Ireland with respect to the legitimacy of group homes and indeed adds to the calls for the individualisation of services and the introduction of personal budgets.

The development aid obligations in the convention will also require Irish aid to adopt a very explicit strategy with respect to the mainstreaming of disability in the projects it funds.

These challenges – and many others like them – led to the setting up of the Centre for Disability Law and Policy at NUI Galway in 2008. The centre takes the convention as its starting point. But it looks just as intensively at comparative law and policy for practical solutions that might be applied in Ireland.

It has just finished a large study for the European Commission mapping the UN convention onto EU law and policy and publishes an annual Yearbook of European Disability Law. The task of translating the generalities of the convention into practical benefits for our citizens is more vital now in times of recession than ever before.

Prof Gerard Quinn is director of the Centre of Disability Law and Policy at NUI Galway, which can be contacted at nuigalway.ie/cdlp”Among those urging Ireland to ratify the convention is Pádraig Flynn