Framework in Response to the UNCRPD

report initially within two years of ratifying the Convention and, following on from that, every four years.

One of the Committee’s most noteworthy reviews in recent years was in 2017, where the UK’s submission resulted in criticism from the Committee due to the UK government’s cuts to social security and other support for persons with disabilities.120 The Committee informed them to make more than 80 improvements to the ways its laws and policies affect the rights of persons with disabilities, in light of a number of the CRPD’s Articles.

121

. Furthermore, there is a sideagreement to the Convention called the Optional Protocol to the Convention on the Rights of Persons with Disabilities which grants signatory States the powers to recognise the competence of the Committee to consider complaints.

122 It entered into force with the Convention and has

94 signatories.

The acceptance and fulfilment of Convention obligations has varied worldwide with, for example, El Salvador accepting the Convention to the extent that it is compatible with its Constitution and France considering the Convention not to be legally binding at all

123

. State parties to the CRPD have pursued different legal and policy reactions thereto, and the development of Ireland’s legal and policy framework in response to the CRPD will be examined in Part III.

III. A Critical Commentary on the Evolution of Ireland’s Legal and Policy Framework in Response to the UNCRPD

Ireland’s legal and policy framework has significantly evolved in response to the CRPD, which was ratified by the State in March 2018.

124

This evolution has resulted in both legislative implementations, including the Assisted Decision Making Act, 2015 and the Irish Sign

120 John Pring, ‘Disabled people urged to provide evidence for UN on government’s record on rights’ (2021) <https://www.disabilitynewsservice.com/disabled-people-urged-to-provide-evidence-for-un-on-governmentsrecord-on-rights/> accessed on 13th November 2021. 121 Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of the United Kingdom of Great Britain and Northern Ireland (2017). 122 Optional Protocol to the Convention on the Rights of Persons with Disabilities, Article 1. 123 United Nations Treaty Collection Chapter IV, Convention on the Rights of Persons with Disabilities <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en> accessed on 13th November 2021. 124 The Union of Students in Ireland, Written Submission on Public Consultation on the Draft Initial State Report under the United Nations Convention on the Rights of Persons with Disabilities (2021) <https://usi.ie/wp-content/uploads/2021/06/USI-SUBM-Draft-Initial-State-Report-under-the-UNCRPD.docx> accessed 6 November 2021.

Language Act, 2017 and the introduction of two strategies to coordinate government policy, namely the Comprehensive Employment Strategy for People with Disabilities 2015-2024 and the National Disability Inclusion Strategy 2017-2021.

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The Assisted Decision Making (Capacity) Act, 2015

The introduction of the Assisted Decision Making (Capacity) Act (ADMC), 2015 represents a significant evolution of Ireland’s national policy framework in response to the UNCRPD. Its provisions represent an evolution of Irish policy which encourages compliance with several articles of the UNCRPD, including Article 12 (Equal Recognition before the Law), Article 17 (Protecting the Integrity of the Person), and Article 23 (Respect for the Home and the Family).

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In relation to Article 12, the ADMC provides for the appointment of legally recognised decision-making supporters to support persons with capacity issues, allowing them to maximise their decision-making powers.

127

The ADMC protects and promotes individual autonomy by taking a time- and issue-specific approach which allows for fluctuations in decision-making capacity and attempts to reflect the person’s will and preferences where possible.

128

The ADMC also provides a framework based on the legal principle that a person has a right to consent to and refuse medical treatment. The ADMC presumes that this generally applies, including when a person has a reduced decision-making capacity.

129

By protecting the integrity of persons with disabilities, the enactment of these provisions indicates that Ireland’s national policy is moving towards a fulfilment of Article 17.

The existence of Ireland’s “ward of court” system, based on the Lunacy Regulation’s (Ireland) Act 1871 and the Marriage of Lunatic Acts 1811 had been identified as a major barrier to

125 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020). 126 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020). 127 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) (145). 128 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) (146). 129 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) (215).

Ireland’s compliance with the UNCRPD.130

The ADMC represents a significant evolution of policy in this area: it provides for the abolishment of wardship and institutes a phased transition from adult wardship to new decision-making support arrangements,

131

and repeals the Marriage of Lunatic Acts 1811, which had declared any marriage entered into by a ward of the court automatically invalid.

132 This moves towards a fulfilment of Article 12 and Article 23 of the

UNCRPD.

The provisions of the ADMC represent an evolution of Ireland’s national policy towards a policy framework that is compliant with the UNCRPD. However, the provisions of the ADMC, at time of writing, have not substantially commenced.133 This is extremely problematic, as due to this failure, for example, adults continue to be made wards of the Court.

134

A full commencement of the ADMC is essential for Ireland’s policy framework to evolve to become fully compliant with the UNCRPD.

135 The ADMC is explored further in subsequent sections

of this research project.

Irish Sign Language Act, 2017

Similarly, the Irish Sign Language Act (ISLA), 2017 represents an evolution of Irish national policy by allowing the State to increase its compliance with Articles 13 (Access to Justice) and 21 (Freedom of Expression and Opinion, and Access to Information) in particular.

Under the ISLA, the courts have a duty to ensure that any person who cannot understand spoken English or Irish but is competent in Irish Sign Language (ISL) is accommodated in appearing or giving evidence in court. By placing a duty on the courts to accommodate persons with

130 Suzanne Doyle and Eilionoir Flynn, 'Ireland's Ratification Of The UN Convention On The Rights Of Persons With Disabilities: Challenges And Opportunities' (2013) 41 British Journal of Learning Disabilities. 131 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) 147. 132 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) (273). 133 National Women’s Council, Submission to the Initial State Report under the United Nations Convention on the Rights of Persons with Disabilities (2021) <https://www.nwci.ie/images/uploads/NWC_Initial_State_Report_under_the_UN_CRPD_2021.pdf> accessed 6 November 2021. 134 Law Society of Ireland, Submission on the Draft Initial State Report under the United Nations Convention on the Rights of Persons with Disabilities (2021) <https://www.lawsociety.ie/globalassets/documents/submissions/2021-submission-uncrpd-report.pdf> accessed 6 November 2021. 135 National Women’s Council, Submission to the Initial State Report under the United Nations Convention on the Rights of Persons with Disabilities (2021) <https://www.nwci.ie/images/uploads/NWC_Initial_State_Report_under_the_UN_CRPD_2021.pdf> accessed 6 November 2021.

disabilities, access to justice for persons with disabilities is increased – for example, the first deaf juror served on a jury in 2020, accompanied by an ISL translator.136

The ISLA recognises Irish Sign Language as an official language of Ireland. This requires public bodies to prepare and implement ISL Action Plans and to provide free ISL interpretation for those who require it to avail of the service offered by the body.

137

The ISLA is additionally further explored subsequently within this research project. This evolution of Irish national policy moves the State towards becoming compliant with Article 21 of the UNCRPD, by increasing the access that people with disabilities have to information.

Additional Legislative Implementations

Section 42 of the Irish Human Rights and Equality Commission Act, 2014 imposed a Public Sector Equality and Human Rights Duty on public bodies. This places a statutory obligation upon public bodies to promote equality and eliminate discrimination, through a three-step process: when doing strategic planning, the bodies must carry out an assessment of the relevant equality issues, they must subsequently develop policies and plans to address these issues, and finally, they must report annually on their progress in eliminating discrimination.

138

Under Section 42(27) of the Act, the Irish Human Rights and Equality Commission (IHREC) is invested with the power to hold public bodies accountable in relation to their progress on promoting equality and eliminating discrimination.

139

This legislative implementation represents an evolution of Ireland’s national policy and moves the State towards becoming compliant with Article 5 of the UNCRPD, which promotes equality and non-discrimination.

Failure to Evolve

However, there are also areas where Ireland’s legal and policy frameworks have failed to evolve in response to the State’s obligations under the UNCRPD.

136 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) 262. 137 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) 263. 138 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) 27. 139 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) 27.

For example, Article 16 of the UNCRPD requires the State to put in place measures to protect women with disabilities from violence.140 Despite evidence that women with disabilities are at a higher risk of experiencing violence within relationships, Ireland has failed to put in place a framework for gathering systematic data based on the experience of disabled women in relation to gender based violence.

141

This, combined with the lack of publicly funded awareness campaigns on the issue of violence against disabled women, represents a failure of Irish policy in relation to the UNCRPD and prevents Ireland from becoming fully compliant with the UNCRPD.

142

Conclusion

Since ratification of the UNCRPD, Ireland’s legal and policy framework has evolved significantly, enabling the State to increase its compliance with many of the Articles included in the Convention. However, in other areas, including violence against women with disabilities, further evolution of policy is needed to ensure that Ireland fulfils its obligations under the UNCRPD.

140 National Women’s Council, Submission to the Initial State Report under the United Nations Convention on the Rights of Persons with Disabilities (2021) <https://www.nwci.ie/images/uploads/NWC_Initial_State_Report_under_the_UN_CRPD_2021.pdf> accessed 6 November 2021. 141 National Women’s Council, Submission to the Initial State Report under the United Nations Convention on the Rights of Persons with Disabilities (2021) <https://www.nwci.ie/images/uploads/NWC_Initial_State_Report_under_the_UN_CRPD_2021.pdf> accessed 6 November 2021. 142 National Women’s Council, Submission to the Initial State Report under the United Nations Convention on the Rights of Persons with Disabilities (2021) <https://www.nwci.ie/images/uploads/NWC_Initial_State_Report_under_the_UN_CRPD_2021.pdf> accessed 6 November 2021.