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Gerard Quinn What could/should a support oriented law look like

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Prof Gerard Quinn What could/ should a support oriented law look like?

Prof Gerard Quinn What could/ should a support oriented law look like?


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  • 1. NextGenWhat Could/should a Support OrientedLaw Look Like?Gerard Quinn, Amnesty International Ireland & CDLPDublin, 29 April 2013.www.nuigalway.ie/cdlp 1
  • 2. ‘Pacta Sunt Servanda’States are Presumed to Enter Treaty Obligations in ‘Good Faith’Which means they are expected to take their obligations seriouslyAndThe Obligations in Article 12 go to the very ‘object & purpose’of the UN CRPD.Therefore – the Core Obligations are not ‘add-ons’ – they go to the heart of future legislation2
  • 3. The Support ParadigmDelicate dance between Independence and Inter-DependenceArticle 12 speaks of support to ‘enable a person exercise their legal capacity’This includes supported ‘decision-making’But also spans augmenting capacity where, e.g., people are transiting formInstitutions to community livingThis is about Expanding Civil Rights to make them effective – its is not aboutlimiting civil rights3
  • 4. What should the Act Contain?Task ♯ 1. Act should enshrine ‘Will & Preferences’ as its core.48 Core Tasks for the Act
  • 5. Task ♯ 2. Act should acknowledge an Evolving Spectrum of SupportsAssume supports are equally relevant across spectrum and intensity of disabilitySpecify/Acknowledge Supports that augment capacitySpecify/Acknowledge Supports to assist a person make choices/decisionsSpecify/Acknowledge Supports to help individuals express their will and preference(representation agreements)Specify/Acknowledge Co-decision – provided the centrality of ‘will & preferences’Emphasize that Supports are not mandatoryEmphasize that Supports are to be found mainly in the community5
  • 6. Task ♯ 3. Act should be clear on the legal implications of support3rd parties are to be bound by ‘will and preference’ that emanates directly or indirectly viathe supports.Conversely, individual is bound.No islands of non-application. Art 12 speaks of ‘all spheres of life’Can provide detailed legislation in these outlying fields – but in principle no sphere is left out.6
  • 7. Task ♯ 4. Act should provide for effective safeguards with respectto the support regime.The usual challenges need to be safeguarded against – e.g., conflictsof interestThe elusive line between ‘support’ and ‘supplanting’ the will and preferenceneeds particular attention – which will evolve as experienceevolvesSafeguards should not be used as a Trojan horse to re-introduce aProtective agenda that nearly always smothers the individual7
  • 8. Task ♯ 5. Act should set out an APPROPRIATE InstitutionalArchitecture to advance & safeguard the system.SYMBOLICALLY: Its Institutional Home has to be Appropriate – NOT from traditionalprotection oriented institutions [too much negative legacy] – this is about expandingcivil rights – not limiting them. Name it POSITIVELYPRACTIALLY: Its Tasks should include:Help grow the field by issuing Good Practice GuidelinesHelp develop safeguards through Good Practice GuidelinesRegister all representation and similar agreementsConnect with community development programmes to ensurethey extend to growingSupport regimesInteract/contribute/learn from international best practiceInteract/contribute/learn from bodies like Irish HumanRights & Equality Commission.Keep system under review – develop research – play a key role in reviewing the Act. 8
  • 9. Task ♯ 6. Act should ‘Look Outwards’ to Linkages and grow them.Act & new apparatus will not have all the capabilities. But other parts of the systemhas valuable assets to put at disposal of support philosophy.- acknowledge/develop link with advocacy system (NAS)- Acknowledge/develop link with community development apparatus- Acknowledge/develop link with general adult protection system to ensureprotection ‘on an equal basis with others9
  • 10. Task ♯ 7. Act should specify clear Transitional Arrangements & Timelines- if neededConceptual Challenge: How do you transition from one Protection system to anotherSupport System?You Need: Cut-offs, timelines, milestones. No new entries to wardship. Automatic reviewfor everyone on wardship to get support.What triggers are identified to graduate from one phase to another?Doctrine of ‘Progressive Achievement’ kicks in – with clear limiting principlesBut it Was Built………./
  • 11. Task ♯ 8. Act has to have a Clear & Purposeful Review MechanismBe Clear on What turns on the review?Reflect on what worked/what didn’t work – identify critical success factors as well as majorinhibiting factors?Identify new areas that can be innovated?5 Year trigger.Can there be an interim review?How/Who conducts it? How to ensure adequate civil society input. How to ensureindependence of the process11
  • 12. Act is Part of a Bigger project: Expunging the Ghosts of the PastHimmler: Some Persons are not persons – ‘human animals’ –‘untermenschen’Objects – not subjects.Subterranean impulse in all culturesSir William Blackstone: Upon Marriage woman suffers ‘civil death’Exclusion rooted in civil law – policy choicesLaw rendering people invisible - objectificationThe Irish Gulag – Implicitly lesser forms of personsConcentric circles of exclusion.No cognitive dissonance – no moral outrageSocial ordering on a theory of lesser humansLast Enclave: What about those with Intellectual disabilitiesAre they ‘lesser’ humans…does ‘ordinary’ law apply? 12
  • 13. Enact this Law not just because the UN requires itEnact it because it fits with the Republican Nature of the State“The Irish Republic fully realises the necessity of abolishing thepresent odious, degrading and foreign Poor LawSystem, substituting therefor a sympathetic native scheme forthe care of the Nations aged and infirm, who shall not beregarded as a burden, but rather entitled to the Nationsgratitude and consideration.”Programme for Democratic Action, First Dáil, 1919.13