Progress in lifting administrative and legal barriers in political participation for persons with disabilities Analysing the European Court of Human Rights Decisions in Strøbye v

recognises the right of persons with disabilities to benefit from measures that protect their independence, social and professional integration, and participation in community life.

35

Following the ratification of the CRPD by the EU and the majority of its Member States, their electoral legislation must comply with its provisions. Article 29 thereof sets out the framework for persons with disabilities’ participation in political and public life and stipulates that state parties shall ‘guarantee to persons with disabilities political rights and the opportunity to enjoy them on equal basis with others’.

36

Article 29 of the CRPD imposes on state parties both negative obligations, such as the obligation not to place legal limits on the right to vote, and positive obligations, including the duty to ensure reasonable accommodations for persons with disabilities.

37

When read in conjunction with the afore-discussed provisions, there is apparently ‘a solid legal backbone informing public authorities at EU as well at national level how the right to political participation of persons with disabilities should be guaranteed in municipal and European Parliament elections’.

38

II. Progress in lifting administrative and legal barriers in political participation for persons with disabilities.

The EU has continually acknowledged and sought to introduce a number of instruments fostering the realisation of political participation of persons with disabilities, The efficacy of these instruments and associated policies in practice ought to be considered, in guaranteeing the voting rights of persons with disabilities in the EU. Practices in this field are highly varied across Member States. Ireland will be illustratively considered in comparison to Italy and Denmark to demonstrate the varied progress that has been made in this field.

A. Ireland

35 Charter of Fundamental Rights of the European Union [2012] C 326/02. 36 Convention on the Rights of Persons with Disabilities. 37 European Union Agency for Fundamental Rights, ‘The right to political participation of persons with disabilities’ (FRA, 2014) <https://fra.europa.eu/sites/default/files/fra-2014-political-participation-personsdisabilities-summary-0_en.pdf> accessed 2 January 2021. 38 European Union Agency for Fundamental Rights, ‘The right to political participation of persons with disabilities’ (FRA, 2014) <https://fra.europa.eu/sites/default/files/fra-2014-political-participation-personsdisabilities-summary-0_en.pdf> accessed 2 January 2021.

Ireland does not restrict the right to vote on the basis of disability.

39

The National Disability Authority has noted that the following arrangements are in place to assist electors with certain disabilities in exercising their voting rights:

40

● voting at an alternative polling station if a person’s local station is inaccessible; ● postal voting by electors living at home who cannot go to the polling station due to a physical disability or illness; ● special voting facilities provided in hospitals, nursing homes or similar institutions for residents who cannot go to the polling station due to a physical disability or illness; ● assistance in voting at the polling station by a companion or by the presiding officer for people with a visual impairment, physical disability or literacy difficulty; ● the use of photographs and party political emblems on ballot papers to assist visually impaired people and people with literacy difficulties; and ● the display of a large print copy of the ballot paper in polling stations to further assist visually impaired people and people with literacy difficulties.

41

However, in their submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020, the National Disability Authority noted a broad range of necessary improvements in order to realise the right to participate in public and political life for persons with disabilities.

42

In particular they noted that at present there are no measures to support persons with disabilities who wish to run as candidates for election,

43 and suggest that the costs of services such as Irish Sign

39 European Union Agency for Fundamental Rights ‘Who will (not) get to vote in the 2019 European Parliament elections? Developments in the right to vote of people deprived of legal capacity in EU Member States’ (Publications Office of the European Union, 26 February 2019). 40 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 < https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022. 41 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 < https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022. 42 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 < https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022. 43 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 <

Language interpretation or products such as assistive technology be funded by the state in the context of running for election.44

Furthermore, they push for the establishment of a dedicated Electoral Commission for progressing accessibility in electoral processes.

45

Against the pre-existing policy and legal framework, the primary activities which the Commission can address are:

● Provide accessible information on voting registration, procedure, and support of independent voter education initiatives; ● Develop strategies for supporting more persons with disabilities to become electoral candidates; ● Further explore a universally designed Electronically Assisted Voting system; ● Assist in extending the period for registering for a postal vote for persons with disabilities; ● Reform the existing criteria for those who are eligible to apply for a postal vote ● Ensure that the Electoral Register and the website of the Electoral Commission meets all standards for online accessibility in line with the EU Web Accessibility Directive; ● Engage with political parties to ensure that all election information produced by parties is accessible for persons with disabilities, particularly those with intellectual or cognitive disabilities; and ● Ensure that inaccessible polling stations are phased out.

46

https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022. 44 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 < https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022. 45 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 < https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022. 46 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 < https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022.

Additionally, the Assisted Decision-Making (Capacity) Act 2015 presumes that a voter presenting at a polling station has capacity to vote, however, the NDA advises that further exploration of this presumption in the context of exercising the right to vote may be helpful. While there is no specific code of practice for voting, the Code of Practice on Supporting Decision-Making and Assessing Capacity sets out the guiding principles of the legislation, including the presumption of capacity. Electoral officials need to be made aware of situations where an individual could be registering to vote, or voting, with decision-making supports. This Code of Practice is currently under review by the Decision Support Service and will be put out to public consultation in due course.

47

Therefore, while Ireland has made significant progress within this area, there are further reforms and accommodations which can be introduced to support the right to participation in public and political life for persons with disabilities.

Case-Study: Persons with Sight-Loss The traditional methods of voting for persons with sight loss required them to be reliant on others to exercise their voting rights. Complaints have been made to both the Ombudsman and the Irish Human Rights Commission about the inaccessibility of the voting procedure for persons with sight loss.

48

The traditional voting methods available for people with sight loss to vote include, • bringing trusted companion into the voting booth with them to mark their vote on the ballot paper • reviewing the large-print ballot paper available in each polling station to help them to mark their own ballot paper • availing of the Presiding Officer for assistance with marking their ballot paper. Current legislation provides for a companion or the Presiding Officer to mark the ballot paper of a voter who:

47 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 < https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022. 48 National Disability Authority, ‘Discussion Paper: Accessible Voting’ < https://nda.ie/nda-files/AccessibleVoting1.pdf> accessed 17 January 2021.

‘satisfies the presiding officer that his sight is so impaired or that he is otherwise so physically incapacitated or that he is unable to read or write to such an extent that he is unable to vote without assistance’.

49

However, as reported by Inclusion Ireland, this legislation offers discretion to presiding officers, who may have not training or awareness of how decision-making supports operate in practice, to potentially restrict the voting rights of an obstacle to the people with sight-loss. ‘A presiding officer may refuse a person with a disability access to vote if they require assistance to do so and arrive in the last two hours of voting. This is because the officer may feel it is obstructing other voters from voting. If a presiding officer considers that you do not have the capacity to vote s/he may refuse a person access to vote. There is no law to govern this and no test in place. It is therefore at the discretion of the presiding officer.’

50

Moreover, complaints had been made as to the strain and inconvenience of availing of a presiding officer to dictate one’s vote. It amounts to a complete surrender of a secret ballot and lack of privacy.

51

There has been discussion as to the lack of provision for a postal vote, as this would allow those with visual impairments to avail of their assistive technology to vote both secretly and efficiently.

52

However, there have been some recent improvements in supporting the right of persons with sight loss to vote independently, prompted by the recent case of Sinnott v Minister for the Environment.

53

In this case, Mr Sinnott, who has a visual impairment, sought a declaration that the first defendant should provide an arrangement to facilitate the blind to vote by secret ballot. O’Connor J granted this declaration.

54

This case led to the introduction of the tactile ballot paper template, which facilitates persons with sight- loss voting secretly and

49 Electoral Act 1992 s.103(1) 50 National Disability Authority, ‘Discussion Paper: Accessible Voting’ < https://nda.ie/nda-files/AccessibleVoting1.pdf> accessed 17 January 2021. 51 Honor Ó Brolcháin, ‘Visually impaired people and voting’ The Irish Times (Dublin, 20 January 2016). 52 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 < https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022. 53 [2017] IEHC 214. 54 [2017] IEHC 214.

independently.

55

While this represents a major development in policy, several technical and administrative problems concerning the tactile ballot paper templates were reported subsequent to their introduction.

56

It is imperative that these issues are resolved to fully protect the independent voting rights of persons with sight loss.

B. Denmark At the time of this research, there are no national strategies or action plans concerning disability in Denmark.

57

Denmark has enacted a series of repeals and amendments to their electoral legislation in recent years, largely removing prior restrictions on the right to vote of persons with disabilities.

58

Within their Local and Regional Government Elections Act (2013) there are provisions for advance voting from home for “voters who on account of disability, poor health or similar are unable to walk into a polling station or voting booth or in any other way are unable to vote in the prescribed way”.

59

Ireland’s system of postal voting and accommodations for persons with disabilities at polling stations appears comparatively more expansive. Following amendments in 2017 to this Act, voters in need of support to cast their vote can demand to be assisted only by a person of their choice, including the physical crossing off of the ballet provided the voter has indicated directly and unambiguously their desired candidates.

60

Ireland’s Assisted Decision-Making Capacity Act (2017) provides for similar structures, but has yet to be commenced and as such its comparative efficacy is difficult to assess. Furthermore, the introduction of assistive technology and voting aids in the voting booths in Denmark have enabled some voters to cast their vote without assistance by another person.

61

Ireland has comparatively less progress in implanting assistive technologies within their voting processes and procedures.

55 Sorcha Pollak, ‘Tactile ballot templates to facilitate visually impaired in voting’ The Irish times (Dublin, 16 March 2018). 56 Conor Pope, ‘Voting when blind: You’d have to be a Mensa member to figure out how to vote’ The Irish Times (Dublin, 24 May 2019). 57 ‘Denmark’s Disability Inclusiveness Highlights’ (European Disability Forum, 2020) <https://www.edffeph.org/mappinginclusivenessdenmark/> accessed 10 November 2021. 58 János Fiala-Butora, Matthew S. Smith and Michael Ashley Stein, ‘Strobye and Rosenlind v Denmark: a surprising departure from the European Court of Human Rights' disability voting rights jurisprudence’ [2021] 2 European Human Rights Law Review 201. 59 European Economic and Social Committee, ‘Real rights of persons with disabilities to vote in the European Parliament elections’ < https://www.eesc.europa.eu/sites/default/files/files/qe-02-19-153-en-n.pdf> accessed 8 January 2022. 60 European Economic and Social Committee, ‘Real rights of persons with disabilities to vote in the European Parliament elections’ < https://www.eesc.europa.eu/sites/default/files/files/qe-02-19-153-en-n.pdf> accessed 8 January 2022. 61 European Economic and Social Committee, ‘Real rights of persons with disabilities to vote in the European Parliament elections’ < https://www.eesc.europa.eu/sites/default/files/files/qe-02-19-153-en-n.pdf> accessed 8 January 2022.

C. Italy In Italy, like Ireland, under no circumstances may an individual be deprived of the right to vote.

62

Persons with disabilities are entitled to change their polling station location in Italy, even on the day of the election, and the local authorities provide transport for persons with limited mobility to take them to a polling station tailored to their needs.

63

Ireland does not have a comparatively successful system of accommodating persons with disabilities at voting stations. Italy provides closed polling stations, for those in care institutions or hospitals, similar to Ireland. Italian legislation ensures that voters who are "physically impaired” or "blind, hand amputee” or with “another impairment of comparable seriousness" can exercise their right to vote with the help of a member of their family or of another voter they can voluntarily choose, provided he/she is registered in an electoral roll of any Italian city.

64

The position is comparatively less clear for persons with intellectual disabilities, although it is presumed they can benefit from the certification procedure detailed in the afore-mentioned Italian legislation. The Irish position will be clearer and preferable following the commencement of the Assisted Decision-Making Capacity Act (2015).

D. The European Union

Each of the afore-considered countries are Member States of the European Union, with their varied policies and levels of progress reflecting a relatively fragmented realisation of the right to political participation for persons with disabilities within the EU. The ratification of the CRPD, alongside subsequent alignment national law and practice therewith will further the progressive realisation of this right in a more unified fashion across the EU. The forthcoming EU guide of good electoral practice addressing participation of citizens with disabilities in the electoral process is a welcome development in this regard,

65 but to further accelerate this

process, the following suggestions for reform are made.

62 European Union Agency for Fundamental Rights ‘Who will (not) get to vote in the 2019 European Parliament elections? Developments in the right to vote of people deprived of legal capacity in EU Member States’ (Publications Office of the European Union, 26 February 2019). 63 European Economic and Social Committee, ‘Real rights of persons with disabilities to vote in the European Parliament elections’ < https://www.eesc.europa.eu/sites/default/files/files/qe-02-19-153-en-n.pdf> accessed 8 January 2022. 64 Academic Network of European Disability Experts, ‘Indicators on the right to political participation of people with disabilities (Italy)’ (2014). 65 European Union, Union of Equality: Strategy for the rights of Persons with Disabilities 2021 – 2030 (3 March 2021).