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I'm sure that you know a lot more about the details of this than I do,
therefore I don't think I can add much to your general knowledge of the
specifics, so what I will propose to do since I have been asked to
introduce the seminar is to look at an overview, look at a framework
within which everything else might be placed.
And this is going to be essentially, if you like, a bird's eye view of
where we came from, why we're here, and what we are specifically doing,
so it's, so to speak, to bring us to the point of departure.
Montesquieu was a French philosopher and historian of the 18th century who
fell out of fashion in the 19th century, largely because his theories
were regarded as being unscientific. He came back into favour in the 20th
century largely because he actually saw the world as it was,
there can be far too much abstraction in relation to scientific entities,
the apple falls, whether Newton is there or not, it doesn't know about
the law of gravity it just happens and that Montesquieu saw the world in
that sense and that's the real sense in which the 20th century sees the world.
He also believed and was supported by Burke later on, that there are
certain fundamentals in human nature that in fact continually recur and
that while this is not any kind of preemption in relation to direction,
or preordination in relation to the human race, the human instincts
are such that they're tending in a direction and he believed those
directions could be be traced through the events of history.
He saw in fact history itself as being incidental, but he saw these
events as finding their way, a little like a captain steering a ship in a
storm, he knows what direction he wants to go, he is pushed and
buffeted by the waves and re-orientates himself all the time
back on to course.
Montesquieu and Burke held that theory, given credit again in the
20th century, and I think it forms a very useful basis.
Adding to that Montesquieu also said in order to understand what we
are and who we are, we must understand where we came from.
And the only way we can understand where we came from is to set what he
called an outer frame; you must set the outer frame as widely as
possible, the widest possible limit.
Now in that context, throughout the development of western society, there
have been two major perceptions, which form a dialectic, which in fact
the tension of which gives us our culture as we are today.
One was what is referred to as the classic theory in which human beings
are elements within an ordered society, they serve a society,
society is manmade and man regulated and continually perfected and can
achieve perfection and that the duty of every individual is to form a part
or element of that society.
That is the classic view.
The world is fixed on solid ground, and that it's an ordered place and
that man is comfortable in his world and God is comfortable in his heaven
and that was the classical theory.
Rousseau developed an alternative to that, that was referred to as the
romantic theory in which the only thing that is static in the world is
the individual and that there is a flux of events around him and that
flux of events is arbitrary, but the individual remains static and that
the individual perfects himself or herself on the basis of those
changes, so chance delivers you a hand, you are played a hand by
chance, and it's up to you to form yourself as an individual in relation
to that hand, that in fact any perception of the world being a
static and stable place is in fact walking on very thin ice, under which
there is fire and that occasionally that crevices open and
people disappear into it.
And that that can happen to anybody, and that that is the very nature of
the world we live in. That was the romantic theory.
And those two theories continually opposed each other throughout the
19th, mainly the 19th century, coming into the 20th century we have merged
these and we actually see that they are both correct.
Back to Montesquieu there are no separate abstractions, they are only
convenient ways of seeing the world, that the realities are there, whether
we abstract them or not and in reality we are a complicated version
of both of those two theories put together.
And that this is what leads to an interesting point that the Minister
made, when he said that the president has corrected him continually in
relation to calling customers, citizens.
He is absolutely right.
Because a citizen in fact represents the creature of society.
It is the creature which has rights and duties and that citizenship is a
privilege and that always was a privilege.
And this in a way within Montesquieu's frame is where I want
to start looking at how we come to the Disability Act.
It's a long journey and I'm going quickly through it, I'll only mark
the major stopping points as we go.
But there is a direct line, if you accept Montesquieu's principle that
there are certain fundamental instincts that the human race has
that will continually recur and revert, because the human race is the
Captain steering the ship, the ship will continually find its way back
on to certain courses.
And that one of these courses relates to citizenship.
And if we take the earliest starting point of our frame, it is actually
the foundation of Europe, the creation of Europe.
Europe was created in reality in the year 480 BC at the battle of Salamis
when a small group of Celts, who perched themselves on the edge of the
Persian Empire, broke free and challenged it, they took it on
militarily -- it was David and Goliath, they took on a tiny -- a
tiny group took on an enormous empire and defeated it and out of that came
what we refer to as Greece.
Now Greece was idealised in the 19th Century largely by the German
romantics, and our perception of it today, as this perfect place is
distorted, but is nonetheless a useful one.
And within that certain things did happen, and Aristotle did come to one
fundamental principle, which is the principle on which we are proceeding,
when he said every person is born to be a citizen.
That's an extraordinarily important concept and this is the one that
tracks itself through.
This is the one that Burke and Montesquieu would say are instinctive
within the human race and what does it mean?
If you take the romantic theory of the individual being tested by the
circumstances of the world, this is that everybody has a right to be an
individual, your birth right, that which comes with the process of being
born, is in fact to develop yourself to the greatest possible capacity and
to have access to all the opportunities to do so.
Once you have access to those opportunities it's up to you what you
do with them, you can sit back and do nothing, that's your choice.
But you must have that choice.
And Aristotle indicated that in his concept of society that every person
is born to be a citizen, that everybody has to have that right, and
from that we get the concept of Greek democracy and for a short time we
have this, what Winckelmann creates, as this ideal picture of a society,
which of course never existed.
What existed there was 5% of the population supported by 95% of the
population who were slaves, people of no right and people who were not even
treated as people.
So that there was a whole body and group outside, in fact the majority
didn't even get the status of being people, never mind citizens, so yes
the theory of citizenship was there, the principle of democracy, which
literally comes from the Greek word "Demos", meaning the people, ruled by
the people, that was there and in a place called the Pix on the side of
the Acropolis in Athens, a natural amphitheatre cut into the rock,
the people met, something like 2,000 of them, all of the other population
of Athens were slaves, they had no rights at all.
So it nonetheless provides us with a very useful concept and a useful
idea, it's great clarity on that idea, which was perfected later on
and it is an idea that probably fits more comfortably into the idea of the
romantics rather than the classical frame and to a large extent this is
why it was dismissed and Montesquieu was dismissed in the 18th century,
which of course was the post Renaissance period at the height of classesism.
If we take that whole development, it disappears, largely under the tyranny
of the Roman Empire and the barbarian invasions, all of this disappears and
the world becomes a disordered place, as far as the rights or identified
rights of citizens are relevant.
It's not -- we don't see it really emerging until the French Revolution
and that in the French Revolution, it's interesting that the banners
that the French armies carried across Europe had the word equality; it was
liberty, fraternity and equality.
Liberty and fraternity are embodied in the concept of equality, equality
was the key word and that's the word that will track us through.
If you come back to Aristotle's principle of every person born to be
a citizen, what does it mean, they are to be given equal opportunities,
now it's a mistake to say they are to be equal; they are to be treated as
equal, which is very different to being equal.
What they do with their equality is irrelevant, that's up to them.
If we track this idea through, we see, we start off by seeing a
relatively small Aristocratic group, who are the aristocrats, Aristos is
the Greek word for the best and Crasos to rule, those ruled by the
best, those who considered themselves to be the best.
These were hereditary princes and so forth and their larger families,
who in fact were tyrants in a controlled society.
Out of this then comes the French Revolution, which challenges this,
and which opens this idea that the people themselves have a right and
their method of achieving it was primitive and that nobody could
support what the French Revolution was and what it did, but the ideas
that underlay it, while they died quickly under Napoleon's
reinstatement of French empire, largely because it was an idea that
was before its time, the idea had been expressed and it was important
that it was expressed.
It appears again in England in the Reform Acts of 1832, by parliamentary
decision, remember that after the civil war in England, England decided
effectively never to have another war internally, everything would be done
by, in an ordered fashion, but Parliament was now in control and not the crown.
So in fact Parliament then being the ruling body in England, in 1832
extended the franchise to property owners of, holding property of a
certain value and what that did effectively was it brought a whole
group of people, not yet the people, but a group of people in, who now had
a say, they elected a government and that that government had to in fact
respond to their needs.
Progressively this widens, I won't go through the widening, but it widens
out until in 1918 you get the universal suffrage and you get for
the first time you get women admitted to being voters, they are actually
accepted as people, up to 1882 the Married Women's Property Act limited
the rights of women, who were married, to own property, they still
had the status as a chattel, that's as recently as my
grandmother's lifetime in 1882.
Now all of this changes of course radically with the First World War
and the First World War is the first big incidence, which converts
England, largely the world, into a real democracy.
Because after it, they are never going to trust dynasties again,
they are now democratic governments and the people are ruling.
Women proved their worth and their abilities during the First World War
when in fact the male population was largely destroyed or a large part of
it was destroyed or badly injured and as a result of that, they weren't
going back, the suffrage movement in 1918 then establishes, so the circle widens.
So we start with a small group of aristocrats, then the property
owners, the property owning franchise increases throughout the
19th century, 20th century we have women admitted to it.
Then we have the American Civil War in 1866, that ostensibly was fought
on the basis of the elimination of slavery, it didn't succeed for
political reasons, the southern states had to be excluded from the
constitutional rights of coloured people and that as a result this
didn't return to the agenda until the 1960s.
When under Martin Luther King a new resurgence came about and that at
this stage as a result the colour, the idea of being coloured was
admitted as equal with everybody else, and that equality extended now
to embrace the idea of race as well as gender.
So that you had gender and race moving outwards all the time.
So you see an ever-widening circle, each time what do they get?
The right to be a citizen, that's what a citizen does.
A citizen forms the government, a person according to Aristotle's
definition, a person who governs himself through a process of government.
And these are now people who have a right to appoint a government.
The right of franchise.
So this is moving out all the time.
So we now have a world that's becoming ever more inclusive in terms
of rights, and that those who represent it must themselves reflect
that representation in the laws that they pass.
If we come to laws themselves, we're a common law jurisdiction,
which means that we grow by precedent, we grow from custom and tradition.
The courts slowly back backwards all the time and make decisions on a new
point by looking at old points, that's the common law.
We introduce a statutory overlayer to that in which our elected Parliaments
can expressedly change the law, it's a little like saying you have a jar
of water, that's common law, you drop a stone into it, that's the statute,
the stone displaces the water and takes its place to the extent to
which it displaces the water, you get a combination of statutory and common
law together, that's what our system is.
Now all the time it's open to those whom we elect to introduce statutes,
the types of statutes that they introduce can be positive or negative.
Negative in the sense of saying thou shalt not do something, and we have
thou shalt not discriminate.
Positive is thou shalt do something and we'll do it.
All our legislation divides into either positive or negative.
It also divides into being rights based and duty based.
Rights based legislation is to give a citizen a right that they can pursue
and recover on foot of that right.
A duty based is that somebody is assigned to carry out a duty and that
there will be an overseeing power that will ensure they carry out the
duty, and that the penalty for failing to carry it out usually will
be of a public nature, a fine or imprisonment or whatever, which is
the public making a decision, as opposed to rights.
So statutes are rights and duty based.
If we go very quickly to the American position, after the Vietnam war, we
had two wars, First and Second World War, there was enormous devastation
and disability followed from these, there were generations blighted,
but there was no economic base to accommodate them, so they were
largely dismissed and in Russia I had seen the veterans from Afghanistan
with limbs missing, begging in the streets, they were still in that
primitive state in the 1990s when I was there.
They were still in the primitive state that in fact you found after
the First and Second World War, of economic disadvantaging of those
who had been injured in the process of fighting for their country.
There wasn't any thought or room for them.
So what we had after Vietnam however, at least they had the glory of
having, if you like patriotically been victors of their country, but
after Vietnam, Vietnam was a failure, Americans don't like failure and
Vietnam was a failure on every level, they had to withdraw and in
withdrawing when the veterans came back they weren't appreciated, they
were largely ignored on the basis that America does not celebrate
failure and as a result they became angry and in 1973 there was the first
Act introduced, the Rehabilitation Act introduced, when in fact
disability provisions had to be made to give equality of citizenship to
the Vietnam veterans on any projects funded from federal funds.
This is the first crack that one sees in relation to the disability.
The argument is going to be that disability becomes the next group
that are admitted, if you like, to the family of equality, I have gone
through how the different groups came into it.
This is about bringing the disability group within that cycle and giving
them the status of citizenship.
And that under the Americans with Disabilities Act, which came as a
result of the Vietnam generation, had now come up, filtered up through
society, because America in fact was; conscription was right across the
board in America, all classes were conscripted and all classes were
injured, all classes were rejected when they returned.
So as a result, in every area of society you had a filtering up into
the layers of society of people with experience of Vietnam, there was a
high level of disability in this and they formed a very strong disability lobby.
In 1990 the Americans took a sensible view of the whole thing, they simply
said we have a problem.
And Americans are very good at solving problems, they are not hugely
good at thinking things out in advance, but they are good at solving problems.
They said we have a problem, the problem is a revenue negative
group of people drawing down disability benefit, and the reason
they are is because they can't work and become revenue productive.
Why don't we actually make places of work accessible to them, so they can
go and work and we can tax them, instead of them deriving a benefit
from us, why don't we derive a benefit from them and in the process
give them equality by giving them access?
The Americans with Disability Act set about creating an infrastructure and
a society in which there was accessibility, primarily its
objectives were economic, but nonetheless it would achieve in the
process a social medium in which everybody could have equal access.
They then set about; first of all the State would pay the cost of the
public infrastructure, but the private sector would carry the cost
of the workplace and the Americans with Disability Act also recognised,
in its words, that there was a class of people called those disabled and
they were socially, educationally, and economically disadvantaged, and
that it would be the objective of the Act to change that policy within
society, and the Americans are very good at inventing words.
They invented language and the importance of the language they
invented is it's what we use today in our own circumstances.
They brought this idea of mainstreaming, this concept of people
being washed up on the banks, get them back into the mainstream,
when they are in the mainstream they become revenue productive and this
American practicality underlying it, they also become people with a same
degree of equality as everybody else.
How do we do that?
Disability must relate to a thing they called essential function,
another group of words they invented.
Essential function is what you have to be able do to do a particular job,
whatever actions are necessary.
And they said then if you make -- accommodate that by going for what
they called reasonable accommodation, add reasonable accommodation to
disability and you get ability.
So it was a very simple equation that they created.
That equation has run through all legislation, it came into the
European directive 2078EC, which is the directive in relation to
employment, which applies throughout Europe, on which our legislation,
particularly the 1998 to 2004 Employment Equality Acts are based.
And within those Acts then you must, an employer must provide reasonable
accommodation, but the problem with the 1998 Act was that it could only
be at nominal expense, if it didn't cost anything.
When the directive, and the reason for that was the Supreme Court held
it was contrary to the Constitution, it attacked the rights of employers
to require them to fund this.
However when it came in under the European directive that it was to be
without disproportionate burden to the employer, which is a much higher
level of requirement, then that could be brought in, the 2004 Employment
Equality Act brought in those words, changed it to bring in those words,
so it places a burden on the employer to provide reasonable accommodation.
Now that brought us then to 1998, 1999, the National Disability Act was
established, which in fact establishes the National Disability
Authority and gives it, as Siobhan said earlier, the two primary
functions, one is to advise the government and assist the government
in the formulation of policy, and the second is to create standards and to
inform the public, in other words to promote the process.
Now statutes can act as a catalyst in this, once an idea is ready to happen
a statute can be brought in, as I outlined earlier, positive and
negative statutes can be brought in order to make something happen.
In the year 2000 we brought in the Equality Act, that under that there
was a requirement for all employers, in fact all persons providing
services to the public, whether for benefit or not, to make their
premises accessible and to provide, if you like, a level of access to
their premises that would make the service accessible -- I should have
said service, not premises.
One must remember that throughout all the legislation here in all
nationalities it is the service that must be accessible.
An illustration of that have is a solicitor in England who was sued
under the UK 1995 Act because his premises was inaccessible,
showed that written on his notepaper he had a provision that he
was available for consultation anywhere, at anytime, and that was
deemed to make his service accessible.
So the premises doesn't have to be, in some cases of course it does have
to be, in the case of 2005 Act, as you will see, public buildings must
be made accessible where they can be, that's a different requirement,
but the general requirement is carried under the Equal Status Act.
This is a negative piece of legislation, it doesn't allow you
discriminate, but says if you don't provide reasonable accommodation that
constitutes discrimination and you have offended against the Act by discriminating.
That's not a rights based Act as such, because if you have a complaint
under that the head of the government department must appoint an inquiry
officer and the inquiry officer can make recommendations and so forth --
sorry under the Equal Status Act the Equality Authority appoints an
inquiry officer and undertakes an investigation and makes a
recommendation and will take the matter to court itself, if it sees fit.
Whereas if we move on quickly to the 2005 Act, which is the one that
you're primarily here to consider today, that, what it does is it makes
all public -- it extends to all public buildings and all public
ventures, including in fact buildings which are within tax regimes, whereby
a benefit is derived, which is deemed to be an indirect benefit through the
State, such as the 482 schemes and so on, these are brought within the scope of it.
So any scheme funded from public revenue or derives a benefit from
public revenue comes within the scope of the 2005 Act.
The 2005 Act is a very interesting Act.
I should say before going into that, that the English 1995 Act is a
traditional English Act, what it does is creates a thing called a statutory
tort, which means any person who is disadvantaged as a result of not
being able to access a service, can take an action against the provider
of the service and can, as a result of infringement of dignity, which is
a statutory tort, can recover compensation up to a certain level
for that infringement of their dignity.
This is the way the English Act goes, so the individual who was offended
takes action against the person who offends.
Under the provisions of the Irish Act in 2005 we have a completely different structure.
First of all it's basically an enabling Act and that it operates
first of all under sectoral plans, there are six government departments
covered, education is covered separately and these departments must
prepare sectoral plans and sectoral plans must be prioritised, they are
laid before the government, the Minister for that particular
department reports on an annual basis to the Oireachtas,
it is actually policed by the Oireachtas, which is unusual,
not policed by any subordinate body, but the Oireachtas itself.
So the Minister has to stand up and show what he has and hasn't achieved
in terms of the priorities he set out for the sectoral plan for
that particular year.
And that in this process there is a slow progression whereby through that
Act, which is still basically a double-sided Act, both negative and
positive, on the negative side of the Act what's happened is that he has to
bring existing facilities into line.
The way he does this is to take Part M of the building regulations
and bring them up to Part M by 2015 or to any amendment after 1997 within
10 years of that amendment, so that keeps a flow in relation to a slow
progressive change within the physical structures of government
departments to make the services accessible.
By the same token, in relation to all new buildings, all new buildings of
course are to conform with the Building Control Act.
This is the positive side of the legislation, if we take the
discrimination as being the negative side, the positive side will be the
Building Control Act, which is going to require that all buildings
introduced or built after the introduction of the Act will be built
in accordance with the standards which are laid down under the Act.
This is a very important element of the 2000 Act, if we come back to it
for a moment, is the Centre of Excellence, the Centre of Excellence
is unusual, this is the first time this has ever appeared in statutory
form that I have been able to find, a centre of excellence.
Where a State, a State undertakes to provide a service, an ongoing or
rolling service in relation to a developing area of knowledge or
technology, where it continually feeds in and gives ministerial status
of approval to standards and codes and that the codes at the time,
whatever they are at the time will represent the obligation.
So the compliance is required to comply with the codes at the time of approval.
So that you have a continuous rolling process, the big disadvantage of the
Americans with Disability Act, there is the most magnificent
schedule attached, it's like a telephone directory, covering every
conceivable possibility in terms of design solutions, but it's a rigid
set of regulations that have to be followed and they were out of date
within a year of being introduced, so America has slipped back as a result of that.
England brought in the British Standard, as you know the British
Standards tend to be good, but not updated very often because the
British Standards Authority has too much to do.
So Ireland brought in this unique and extremely interesting mechanism,
which is done through the National Disability Authority, where the
Centre of Excellence will, on a rolling basis, taking into account
representatives of the disabled, taking into account the professional
bodies that are specialised in the matter and taking into account all
other interests and itself of course, will in fact generate and keep on a
rolling basis, it will do national and international research,
it will carry out projects and it will develop in a positive way.
This is an extraordinary development and is extraordinarily important.
Now if you look at going back to the idea of universal design, this will
underlie it all, I don't have time to do it now, but I'm close to having to finish.
But if you go back, one of the big problems we have as designers,
focus on this for one moment, is that if we go back to Leonardo Da Vinci
with his circles and squares and ratios and the man who stands like
that, produced the perfect man, and this was the module.
All design, post Renaissance design is based on that module,
that module doesn't exist and that's the problem.
You can't design to a single standard, universal design is in fact
the opposite, it's saying there is no such thing as a universal man,
there is -- there are a huge number, a range of people, and that they
range from disability to abilities of different descriptions and that
design can be widened, it's only a question of mindset.
Design can be widened to incorporate this.
The fact, for example; take a simple one, the width of a door, it doesn't
cost more to do it, it's a mindset in not doing it.
The grind of a stairs is a mindset, it's a designer's mindset.
And that what this is all about and these are all catalysts to achieve
it, it's about changing the mindset of designers, it's about changing the
prejudices of people, it's about moving this circle and I come back to
Montesquieu's circle, moving it out by another layer and saying these
people are welcomed into the human race of citizens, defined by
Aristotle as people who have, in fact, are born with a right to
express themselves and all this does is gives them the opportunity,
whether they take it or not is up to them, it gives them the opportunity to do it.
And that the Americans have influenced Europe, they have
influenced England, but we have certainly used their language,
but we have thought out a new scheme, we have a progressive scheme.
It's actually an extraordinarily interesting scheme and I haven't come
across anything like it.
It brings in a lot of unique ideas, within both the statutory mechanisms
and the principles that underlie it.
It's fundamentally romantic if you go back to the two great divisions of
the 19th century, on the basis that it recognises the individual and
gives primacy to the individual within the changing flux of events in
which we all live and recognise, we don't control the world outside.
By the same token, we have to acknowledge in relation to each
other, that if I have a right to something, you have an equal right.
The only thing that restricts my right to absolute freedom is your
right to the same thing.
Once we both recognise that and we have that standing between us then we
form a society, we form a modern civlised society.
That basically is where Ireland has got to in relation to disability.
Now I haven't time, I think I have to finish now, I've got the sign, I have to finish.
What I was going to talk about was just this whole issue of heritage
buildings and protected structures in relation to disability and I was
going to just merely say that this starts with America, America got it
right the first time around, they simply said if you protect a
structure, because it has some particular feature in relation to it
and if you change that feature to make it accessible, then you have
nothing left to protect.
That's the basic principle, it has come through in the first of the new
codes, I'm not sure the first, but certainly in the new code in relation
to heritage structures that has been approved by the Minister and now
reached the status under Section 30 of the Act as an approved code.
It's excellently presented on the basis it has little windows that give
you the principle, it then gives you an elaboration of that if you want to
see examples underneath it, you can read it in about three minutes from end to end.
It's very sensible and that it merely recognises that principle.
Which is the interesting one of saying, you are not allowed do
anything under this Act, which was not permissible under the law before it.
Since the planning authority don't allow modification of protected
structure where the significance is relevant, than this Act doesn't
change it by definition and that is recognised in that instrument,
which again is very succinctly and well put together.
So that's a good example of where the National Disability Authority is
going, in performing its function, it's an excellent starting point,
an excellent example and I think the design professionals in general look
forward to seeing a lot more of this and embedding it into their own
culture and their own subsense, and indeed since 2001 under the Council
of Europe, all the educational establishments have undertaken to
teach universal design and in relation to that, once universal
designers come on board, all of this will fade away.
It's a little like the Green Movement, once everybody embraces it
there is no longer any need for it, because it becomes part of us.
And that the admission of this category of people into the circle of
citizenry is what has been achieved through the Disability Act and that
really is what I would say our disability institutions and
obligations are all about.
Thank you very much.