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Overview of the Act........................................................................................120 Changes implemented by the Act....................................................................121 Scope and limitations of the Act.....................................................................124

FOREWORD

This report confirms the pressing need for further action to enhance the rights of persons with disabilities in Ireland. Its comprehensive review of different dimensions of social, economic, cultural, and political life reminds us that, in many areas, people with disabilities continue to encounter significant barriers to participating in the life of the community on an equal basis with others. As the report indicates, people with disabilities are at a greater risk of living in poverty and have significantly lower rates of employment than those without disabilities. Children with disabilities face considerable hurdles to receiving appropriate and inclusive education. There are barriers to participating in political life. The experience of the criminal justice system of people with disabilities is not the same as that of persons without disabilities, whether as a victim of crime or as a person accused or convicted of an offence. While these are long-standing concerns, the experience of the pandemic exacerbated some forms of disadvantage, in particular during periods when schools and other support services were closed.

During recent decades, people with disabilities successfully advocated for law reform as a means of bringing about change. This report provides critical insight into the major legislative reforms in Ireland, as well as those stemming from the EU and international organisations. It identifies areas where there has been progress, but it also notes a pattern of shortcomings and delays in implementation. For the global disability movement, the adoption of the UN Convention on the Rights of Persons with Disabilities (CRPD) in 2006 was a watershed moment. Ireland was, regrettably, the last EU Member State to ratify this Convention in 2018 and, as this report makes clear, there are still many areas where the State needs to complete the task of bringing Irish law into compliance with the requirements of the Convention.

One area where CRPD requires change is Ireland’s equality legislation. As this report explains, important strides have been made through the Employment Equality Acts, Equal Status Acts, and the Irish Human Rights and Equality Commission Act. At the same time, there are aspects of these laws that should be revised in the light of the CRPD and the avenues for their enforcement need to be strengthened. In 2021, the government launched a wide-ranging consultation on Ireland’s equality legislation. This is a welcome opportunity to look again at legislation first adopted over 20 years ago. The consultation indicated that it would address the substantive content of the law, such as the definition of disability, and the practical experience of seeking to enforce the rights found in the law. This report provides a valuable and timely contribution to the ongoing debate on the future reform of this legislation.

Mark Bell Regius Professor of Laws Trinity College Dublin.

INTRODUCTION

Following Ireland’s ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in March of 2018, the Programme for Government stated: “Ever since Ireland ratified the UN CRPD, we have signalled to those with a disability that we are now serious about making a difference – a difference that will make things better. The ratification raised awareness of the lived experience of people with disabilities, but we have much more to do.” Therefore this research project proposed to consider the positive developments and shortcomings within current approaches towards the rights of persons with disabilities.

This research is inextricably shaped by the influence of the CRPD, with regards the substantive legal and policy changes which have occurred following its ratification but perhaps more fundamentally in regarding persons with disabilities as rights holders rather than objects of charity, medical treatment and social protection. This is aligned with the broad paradigm shift in attitudes and approaches to persons with disabilities, and has focused our researchers on critically evaluating the failures of society to accommodate individuals which impede the full enjoyment of their rights and active participation in all aspects of society. The core aim of this research was analysis of the present state of law and policy as they affected persons with disabilities, and the identification of future avenues for reform to ensure that their rights were fully realised in the spirit of the Convention.

Chapter 1 examines the primary models for defining disability, and considers is definition as a matter under Irish law. Chapter 2 investigates the right to participation in public and political life for persons with disabilities, focusing on the legal and policy barriers currently impacting the effective exercise of this

right. Chapter 3 analyses the rights of persons with disabilities under the European Convention of Human Rights, the CRPD and Ireland’s progress in fulfilling its CRPD obligations. Chapter 4 provides an overview of the European Accessibility Act and the Employment Equality Directive supplemented by critical commentary. Chapter 5 focuses on the criminal justice system’s interactions with persons with disabilities, highlighting current inadequacies across all levels from the trial process to the probation service. Chapter 6 centres on the right to an ‘appropriate’ education and the broader legal and policy frameworks relating to the education of children with special educational needs. Chapter 7 examines the major legislative and policy devices supporting persons with disabilities in the context of employment. Chapter 8considers the Irish social welfare system and its role in protecting the rights of persons with disabilities. Chapter 9 analyses the Assisted Decision-Making (‘Capacity’) Act, with its forthcoming abolition of wardship and introduction of an alternate decisionmaking support system. Chapter 10 focuses on the Irish Sign Language Act, outlining its key provisions while critically assessing its efficacy in meeting the needs of persons whose primary mode of communication is ISL.

I would like to thank all those who were involved in the publication of this report. We are honoured to have our project foreword written by Professor Mark Bell, who threads together a number of the abstract patterns emerging from this research and provides his own insight into the area of disability rights. I am incredibly grateful to Janelle Veitch and Susan Kennefick for their assistance in the early stages of this project, particularly their kind words surrounding the importance of research in policy change and their insight into the area of disability rights in Ireland. I would extend my sincere thanks to my Deputy Legal Research Officers, Patricia O’Reilly and Rebecca Cleere, for their continued support and dedication to the research efforts of Trinity FLAC. I would like to highlight their

extensive work in the editing stages of this project, both in their attention to detail and constructive approach to our researchers’ submissions. I would like to thank Síofra Carlin, Chairperson of Trinity FLAC, for her guidance during all stages of the project. I would like to thank Lucy Shu Yao Lu, Public Relations Officer of Trinity FLAC, for her continued work promoting this project and its associated events. Additionally, I would like to thank Georgia Dillon, Secretary of Trinity FLAC, for her kind support and assistance throughout this project. Finally, this report would not have been possible without our outstanding research team. It has been a pleasure to work alongside each and every one of you. The fruits of your efforts are evident within this research publication, and your submissions were an accurate reflection of your time and work. A sincere congratulations to all!

Hugh Gallagher Legal Research Officer, Trinity FLAC

CONCLUSIONS

• The definition of disability under Irish law should be clarified and expanded to encompass the experiences of persons who experience disability due to impairments; • The social model of disability is the preferable model to be adopted in reforming the definition of disability under Irish law. • To secure the political agency and autonomy of persons with disabilities, it is necessary that their right to participation in public and political life is strongly protected in law, with the approach of the CRPD being preferred to that of the ECHR. • Core barriers to the full and effective political participation of persons with disabilities primarily relate to the communication of voting information and procedure, the accessibility of voting procedures and facilities themselves, and the provision of appropriate and specific supports those seeking to vote or stand for election. • The ECHR offers a relatively weak framework for the protection of disability rights, primarily due to the ECtHR piece-meal approach to this issue area and high deference to Member States. • The UNCRPD was an overwhelmingly positive development for the rights of persons with disabilitie, but has produced inconsistent legal and policy changes across it’s the states party to it. • Ireland’s legal and policy framework has evolved significantly since its ratification of the CRPD in compliance with their obligations, however there remains significant deficiencies in Ireland’s frameworks affecting persons with disabilities. • The current European legal framework is insufficient to enable persons with disabilities to fully participate in all aspects of society, including economic and social. • Within the criminal justice system, there is a pressing need for effective research and data collection, the adoption of inclusive practices within current services and the introduction of effective and appropriate support mechanisms across all its facets. • Despite judgements defining an “appropriate education” as one which allows a child to reach their full potential and capacities, it is seriously questionable whether this standard of “appropriate education” is being upheld for children with disabilities in Ireland. • Whilst the Education for Persons with Special Educational Needs (EPSEN) Act 2004 represented a step forward for special needs education in Ireland, further work is

necessary by Government and the National Council for Special Education in realising the goals of this legislation. • In order to better deliver education to classes of children with mixed ability, Universal Design for Learning (UDL) should be adopted. • The restrictions imposed during the Covid-19 pandemic had a particularly adverse effect on school children with disabilities evidence the importance of ensuring all children with special educational needs receive an effective and inclusive education. • There is a need for policy schemes focusing on the transition from secondary school to further education for persons with disabilities, the commencement of proposed employment support systems, the implantation of universal design across workplaces and introducing flexible work arrangements more broadly across the employment sector. • The Irish social welfare system could further support persons with disabilities by responding to the rising costs of disability, mitigating against the disincentivising of participation in employment due to a loss of welfare benefits and an overhaul of the application and appeals process for those seeking to avail of social welfare supports. • The Assisted Decision-Making (‘Capacity’) Act 2015 it provides for a significantly more nuanced and compassionate treatment of those who may struggle exercising their decision-making capacity, than the antiquated system of wardship. • The Irish Sign Language Act 2017 ought to be more ambitious in future reforms to meet the needs of persons who utilise Irish Sign Language as their primary means of communication, such as expanding entitlements under the Act beyond public bodies. • In order for the aims of the Irish Sign Language Act 2017 to be realised, further investment in interpreter services and training is crucial.