Tag Archives: human rights

We’re all human

I read Emily Thornberry’s blog for Huff Post for Human Rights Day with the usual sense of disappointment as she explained what the Human Rights Act has done for victims of crime. Because victims are naturally considered more worthy recipients of rights. Compared to the Tories’ sabre rattling over withdrawal from the European Convention of Human Rights completely, as well as repealing the Human Rights Act, it’s something I suppose but…. The blog feeds into the idea that there are deserving and undeserving people when it comes to human rights. This is the kind of attitude that makes me grind my teeth. Anyone whose rights are infringed becomes a victim in that moment. That’s the point: human rights conventions impose a moral standard which grants rights to all. The UN’s use of the word “universal” isn’t a coincidence for crying out loud. We protect everyone because if we don’t we’re accepting some people have a lower value. We have rights like those related to fair trial to ensure the innocent person and the guilty one both get equal treatment under the law because it’s the right thing to do. Because collectively we have agreed on a high standard of justice, even though individually we might have personal feelings about a case which make us question them a little (and for some people a lot).

Human rights are for all humanity. To me, protecting the rights of even a convicted murderer, terrorist, or rapist does protect me. It protects me simply by saying that everyone, absolutely everyone, is equal under the law and that the State is accountable for it’s actions. That doesn’t just protect my rights. It enables me to live with my society’s values. I look at a country like America with a certain amount of bafflement because I just don’t understand a society that continues to use the death penalty. Ours is a far from perfect society but a commitment to human rights gives people very real rights and remedies and makes us all better for it. Everyone is entitled to human rights such as life, dignity and justice. The fact that it’s not politically convenient to say so in the present climate doesn’t change that fact.

Labour Conference: Please sir, will you save Legal Aid?

The reason I’m on the fence between Labour and the Greens at the moment can largely be summed up in one word: justice. Labour left me feeling pretty bitter about it during its 13 years in office. The Labour government was hardly filled with paragons of virtue in this arena and its centre leaning (and beyond) policies were there from day one. You might not have seen me share my Criminology lecturer’s anecdote, which he told us shortly after the 1997 election. He saw Jack Straw at a function and Straw said ‘the trouble with “you lefties” is’, without irony. My lecturer was one of the most respected criminologists in the world but he was written off as a lefty by the newly minted Labour Home Secretary. If their criminal justice policies were bad, things were to get worse once they got onto anti-terror legislation. The various Home Secretaries and Lord Chancellors/Justice Ministers who had held office under New Labour have been swept away since then but I’m still left wondering how far Labour’s really moved from the centre ground over the past three years. Labour isn’t under pressure to talk about some of the issues which worry me at the moment though so Yvette Cooper was able to focus primarily on three areas which have been in the limelight and could be expected to resonate with the public in her speech :-
– police numbers;
– it’s just one fuck up after another on Theresa May’s watch; and
– immigration.
As with Social Security, there were good points in Cooper’s speech (eg. improving sex education in schools, which is important for numerous reasons). I was also far more thrilled than anyone ought to be at her mentioning the connection between rising shoplifting and rising poverty. Even though many issues weren’t mentioned at all in Cooper’s speech, I had the gut feeling reading it that criminal policy remains an area where playing on people’s fears and prejudices remains the easiest course for politicians seeking office though. The tone of her speech felt familiar and that sentiment came across in Sadiq Khan’s speech too. Khan’s speech wasn’t without some serious high points. It demonstrated a willingness to consider hard solutions instead of tough ones, searching for the root causes of crime in poverty and recognising that many mentally ill people who commit crimes are being let down by the State:-
“We need a Justice Secretary who’ll persuade the Education Secretary that cutting Sure Start or family intervention projects is a false economy. One who’ll work with health colleagues to end the scandal of those with mental health problems languishing in our prisons.”
Still, the language of fear was there. I know there’s no room in a Conference speech for nuanced explanations of policy but the words which are chosen speak volumes. A phrase like “reckless gambles with public safety” to describe the proposed privatisation of the Probation Service makes me slightly queasy because it points to a party which still feels the politics of fear are good enough, or that they have no alternative way of reaching the public. Yvette Cooper ended her speech saying we need hope. I agree but hope doesn’t spring from the language of fear. Similarly, it may be popular to do so but I don’t believe it’s necessary to use the language of retribution to oppose the idea of plea bargaining (as Khan did).

Khan defended the European Convention of Human Rights in his speech but that’s hardly a bravo moment. The fact that things have got so bad that the Tories think they can get away with withdrawing from the European Convention of Human Rights just goes to show how screwed up our country’s attitudes to human rights have become. It’s also hard to ignore the fact that earlier this year Labour abstained on the retrospective amendment to the workfare scheme on the basis that the country couldn’t afford to compensate people who’d lost out under the procedurally flawed scheme. Another instance of Labour delivering the message we can have all the human rights we like as long as they don’t inconvenience the Government of the day?

Moving on: Legal Aid. If you want to know more about Legal Aid under New Labour, I put a long series of links covering most of their time in office together in Legal Aid: the New Labour years after a more general brief history of Legal Aid in Call me a cynic but. You don’t need to read all of the links to see why lawyers might be suspicious of One Nation Labour. Willie Bach led a heartening, bitterly long fight against LASPO in the House of Lords and remains committed to Legal Aid but when he tried to get a vote of delegates on the protection of Legal Aid at the Conference he lost, despite Labour Commons mps having mouthed the right words on LASPO and proposals for further “reforms” in the arenas of public and criminal law this year. There was no blanket defence of Legal Aid at the Conference. It didn’t rate a mention in Miliband’s speech at all. Sadiq Khan only mentioned Legal Aid in relation to judicial review proceedings and cases involving domestic violence. We desperately need it to be preserved in those cases but it’s very much the thin edge of the wedge. It’s entirely possible, when you look at the specific examples he chose that he was just sticking to examples which he knew would elicit public sympathy but it feels like a door closing on LASPO.

The trouble with looking at a Conference is that I’m only ever going to be able to skim the surface of what’s been said because of all the fringe events. I didn’t even try in relation to social security but I did look at the coverage of a panel organised by the Legal Aid Practitioners Group on Monday, where Shadow Attorney General Emily Thornberry emphasised the importance of Legal Aid but also said:
“‘there won’t be a lot of money around’ and so the party would ‘have to be careful about what we spend our money on.'”
This was after the ballot on opposing the Government’s reforms was defeated at the weekend. So it’s business as usual for Labour then. It’s laughable that she complained that constituents were going to their mps for legal advice but couldn’t always get it because not all mps are former lawyers. Many are and, given the likelihood of many practising lawyers losing their jobs between now and 2015, I’m sure she could find some more than willing to stand in the election in return for tripling their salary and having the opportunity to provide free legal advice to their constituents.

I suppose I can at least take heart that there are former lawyers in the shadow cabinet speaking out against reforms. It’s a huge step up from people like Jack Straw muttering about opticians. Anyway, enough. Labour will do (or to a greater extent I suspect, not do) what they will do when it comes to these issues. I only hope that people like Lord Bach keep speaking out because public opinion won’t change if they don’t and only public opinion is likely to change Labour’s position on this. I’m also pretty proud of the way my profession’s handling the crisis. Not at the top: frankly the Law Society seems to have abysmal pr skills and the Bar Council had the advantage of an excellent president last year but probably isn’t any more reliable than the Law Society. We need people to see that we’re human and have strong values – too often all the public sees are the deeply embarrassing instances of individual lawyers demonstrating they’re utterly out of touch. Remember Jerry Hayes’ appearance on Question Time earlier this year? The one where he argued that rape didn’t happen if there’s no resulting conviction, dismissing the trauma of the thousands of women who’ve chosen not to report being raped. I can’t remember who the other embarrassment was that day or why but I remember tweeting that the Bar Council must be in need of a stiff drink because someone else had been shown up in the papers on the same day. And then in August we had the barrister who portrayed a child victim of a sex offence as a Lolita. I’m proud of all the individual lawyers writing blogs, responding to consultations, writing to mps, attending demonstrations and tweeting who counter negative images like these and the image of uncaring city fat cats living the high life. I’m proud that people outside the legal profession are getting to see that a lot of us truly care. It’s passionate lawyers who got over 100,000 signatures for the Save UK Justice petition. By the way, the petition closes on 10 October. If you haven’t already signed it, please do. We desperately need to demonstrate to all parties that Legal Aid has the backing of non-lawyers. It’s the only way we’ll be able to convince anyone to push back against the reforms. They haven’t and won’t just take lawyers’ livelihoods. They have and will take away your rights.

WOW, impact assessments and consultation

When I reviewed the provisions of the UN Convention on the Rights of People with Disabilities, by reference to a Report from a Joint Committee on Human Rights published in March 2012, I suggested that the Government’s failure to perform a cumulative impact assessment of it’s reforms, its response to the WOW Petition and its refusal to engage even with an mp (Michael Meacher) who supports the call for a CIA (all of which prompted that post) could breach the Convention. Last week, during a Commons debate on the need for a CIA Employment Minister Mark Hoban repeated the DWP’s line that it’s just too difficult to carry out a CIA and was mocked by Liam Byrne who suggested that if the UK can host the Olympics, participate in space programmes and have military operations abroad its government ought to be able to carry out a CIA. I’ve finally started to go through the rest of the Committee’s Report on the UK’s implementation of the Treaty and the Committee had this to say on the then Welfare Reform Bill (it received Royal Assent a week after the Committee’s Report was published):

“In our legislative scrutiny Report on the Welfare Reform Bill we noted criticisms of the impact assessment process for that Bill. Equality impact assessments were not published by the Government until the Bill was in Committee in the Commons, and, while equality impact assessments have now been published for distinct parts of the Bill, these do not attempt to assess the cumulative impacts of multiple provisions in the Bill on particular groups with protected characteristics. This is of concern, since at least some individuals will experience these changes cumulatively, and their impact needs to be understood in this way. For example, a disabled person may find that they lose their lower rate DLA, and therefore become subject to a cap on their housing benefit such that they cannot afford to remain in their home. Moving may disrupt informal patterns of care and support at the same time as they have increased reliance on these supports.”

And

“We are concerned that the UNCRPD, and Article 19 in particular, does not appear to have played a central role in the development of policy. Inadequate attention has been paid to the impact of relevant policy on the implementation of the UNCRPD, in contravention of Article 4(1) and 4(3). We recommend that the Government make a clear and unequivocal commitment to Parliament, equivalent to that which it has already given in relation to the UN Convention on the Rights of the Child, that they will give due consideration to the articles in the UN Disabilities Convention when making new policy and legislation, and in doing so will always consider relevant recommendations of the UN treaty monitoring bodies.

“However, if properly carried out, equality impact assessments provide an important mechanism through which to ensure policy achieves desired goals and avoids unintended consequences, and help to demonstrate transparency and accountability. We recommend that they should be produced early in the policy-making process with the full involvement of those likely to be affected by the policy.

“Given the breadth of the current reforms, the Government should publish a unified assessment of the likely cumulative impact of the proposals on independent living, and set out any relevant mitigations through the Disability Strategy. The relevant strategies in the devolved administrations should also include such mitigation plans.

“We regret the exclusion from the English specific duties under the new Public Sector Equality Duty of the requirement to conduct equality impact assessments. The Government should either revise the duties accordingly, or promote equality impact assessments as a matter of good practice, with the assistance of other expert bodies such as the Equality and Human Rights Commission, Scottish Human Rights Commission, Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission. We welcome the willingness of the Secretary of State for Justice to consider the impact assessment methodology being developed by the Scottish Human Rights Commission and we look forward to the outcome of that consideration.

“Our evidence suggests that equality impact assessments have not played an important part in assessing the impact of recent policy on disabled people in the context of the UNCRPD, because of poor quality, or untimely, EIAs. There also appears to be some confusion over the requirement to conduct EIAs, which the Government should clarify.” 

So, the Committee said that in March 2012. You’d think we wouldn’t need the WOW Petition. You’d think the Government would take these conclusions on board and act on them. Instead, in November 2012 David Cameron announced at a CBI Conference:

“Let me be very clear. I care about making sure that government policy never marginalises or discriminates. I care about making sure we treat people equally.

“But let’s have the courage to say it: caring about these things does not have to mean churning out reams of bureaucratic nonsense.

“We have smart people in Whitehall who consider equalities issues while they’re making the policy. We don’t need all this extra tick-box stuff.”

“So I can tell you today we are calling time on equality impact assessments.”

Apparently the “smart people in Whitehall” conveniently forgot about the Committee’s Report. Even before that speech, in May 2012 the Government had launched a review of the Public Sector Equality Duty. It called for evidence but, crucially, said it wouldn’t be opening the subject up to consultation. Why’s that crucial? The obvious reason is because it would meet with opposition but the other reason for the purposes of this post is that the Committee’s Report on the Disabilities Convention also considered the issue of consultation. It seems obvious to me that the Report’s conclusions on both consultation and EIAs would also apply to Cameron’s plan to drastically scale back the use of EIAs where disabled people may be affected by proposed policies. The Committee concluded:

“The UNCRPD specifically requires disabled people to be involved in the implementation of the Convention, and the Government have acknowledged the importance of such involvement. We recommend that the Government aim to involve disabled people in the development of policy, rather than simply consult them, and to ensure that timescales and methods are used which enable a full range of disabled people and their representative organisations to be involved.

We are disappointed that the English specific duties under Section 149 of the Equality Act no longer encourage the involvement of disabled people. This is a retrogressive step. The Government should actively promote involvement to public authorities as a means of meeting their Equality Duty and in order to comply with the UNCRPD.”

The Report noted that consultation does happen on various levels but also that some people felt that consultation tended to be with “the usual suspects” ie household name charities. Then Disabilities Minister Maria Miller’s defence of the Government’s record included the boast that they’d had over 5,000 responses to the Consultation on the replacement of DLA with PIP. I’ve checked. The DWP received 5,500 reponses, nearly 2,500 of which came from individuals. Protests at the reforms were met with the response from Miller at the time that they were symptomatic of problems with the existing system, demonstrating that one key to effective consultation with disabled people is whether policy makers are actually willing to listen and engage with them – Miller wasn’t and I’ve seen no evidence since that any DWP minister is.

The Report didn’t specifically address the issue of activists like WOW, Sparticus and Pat’s Petition. Disabled people are grouping together, carrying out research, professionally writing reports like this one (pdf) and taking to the streets in protest. Disabled people are stakeholders and clearly don’t feel the various relevant charities are contributing enough to the policy making process. Rather than being treated as stakeholders, activists are ignored at best. At worst they’re subjected to scorn and derision, facing the accusation that you can’t be that disabled if you’re able to give a detailed professional response to a consultation, organise opposition through social media or attend any relevant meeting or protest. Paul Maynard mp went even further in the House of Commons on 10 July, accusing disability activists of being “extremists”. From where I sit, if you have a vocal group of disabled people and their carers who want to engage you over your reforms, it’s shameful to ignore them and disgusting to try to undermine them with language usually attached to religious fundamentalists and terrorists. In fairness to Maynard, Pat’s Petition has reported he regrets his use of the word, following communications between Pat’s Petition and him.

This is a long enough post already so I won’t say anything more about Maynard but the fact is that nearly 50,000 people have signed the WOW Petition. I’m one of them and, if you aren’t yet I’d urge you to become one. The WOW Petition is necessary because the Government refuses to listen. It refuses to engage with disabled people. It refuses to acknowledge that the arguments for a cumulative impact assessment have merit. As I said in my earlier post on the Convention, individuals can’t bring claims against the Government solely on the basis of a failure to comply with the Convention but that doesn’t mean it’s not binding on the Government or that the UK courts and the European Court of Human Rights can’t rule that breaches have occurred in appropriate cases (see my earlier post for more on this). Apparently, the UN has also been made aware of the situation.

The UK should’ve been leading the way, setting an example for the countries it encouraged to sign the Convention. Instead this Government been guilty of wilful ignorance over the most basic of issues (namely whether the Convention is binding on the UK at all), has deliberately introduced reforms which take the rights and living standards of disabled people backwards and has done so without appropriate consideration of the consequences of its actions. The result has already been a reduction in the independence of disabled people and an increase in poverty among disabled people. Yesterday David Cameron launched the hashtag #DisabilityConfident. I’m confident of this: many more disabled people will suffer as a result of his Government’s policies if it doesn’t change course.

UN Convention on the Rights of Persons with Disabilities

In 2009 the UK ratified the UN Convention on the Rights of Persons with Disabilities, not just to protect disabled people but to actively promote the rights of disabled people to participate fully in society and to live with dignity. A fundamental aspect of this is the right to independent living. These principles had cross party support, although it was a Labour government which actually ratified the Convention. On 1 March 2012 the Joint Select Committee on Human Rights reported on the implementation of the right to independent living. I’ll come back to the detail of that report another time but for now I want to emphasise what the Convention actually says. The Committee explained that its purpose is to:

“promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”

The Convention doesn’t just reaffirm the existing human rights of disabled people but:

“sets out the practical action that is required to remove barriers and put in place the support to make the human rights of persons with disabilities an everyday reality.”

Because the emphasis of the Convention goes beyond protection of rights to actively promoting them, it goes further than human rights treaties normally do by requiring States to actively:

“establish a domestic framework to promote and monitor implementation of the Convention including designated leadership within the Government, an independent framework to promote, protect and monitor implementation, and the active involvement of civil society—and disabled people’s organisations in particular—in both implementation and monitoring.”

A quick reminder. Our Government has just published a response to the WOW Petition saying it can’t be expected to conduct a full impact assessment of its social security reforms on disabled people. Michael Meacher MP has also reported that he found it impossible to arrange a meeting between interested parties and Iain Duncan Smith or Mark Hoban.

The Convention includes (Article 3) general principles and governments’ interpretation of the rest of the Convention should have regard to these principles:

– “Respect for the inherent dignity, individual autonomy (including the freedom to make one’s own choices), and independence of persons;
– Non-discrimination;
– Full and effective participation and inclusion in society;
– Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity.”

Next, Article 4 lays out the obligations member States agree to abide by. These general obligations “explicitly recognise that States are under an obligation to take positive actions in order to comply with the Convention” and include obligations:

– “To ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability;
– To adopt all appropriate legislative, administrative and other measures for the implementation of the rights in the Convention;
– To take all appropriate measures (including legislation) to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;
– To take into account the protection and promotion of human rights of persons with disabilities in all policies and programmes;
– To ensure that public authorities and institutions act in conformity with the Convention;
– To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organisation or private enterprise;
– To take measures to the maximum of its available resources with a view to achieving progressively the full realisation of the economic, social and cultural rights in the Convention;
– To consult closely with and actively involve persons with disabilities, through their representative organisations, in the development and implementation of legislation and policies to implement the Convention, and in other decision-making processes concerning issues relating to persons with disabilities.

Are you finding it hard to believe that not only did the UK sign this Convention but it actively campaigned for its signature by other countries, let alone that it was a cross-party effort?

Article 19 is more specific:
“States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:
a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;
c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.”

The Committee says:
“Of particular importance is the elimination of living arrangements that segregate and isolate people with disabilities (e.g. institutionalisation), unless that choice is made by the disabled person. Article 19 thus requires States Parties to ensure that people with disabilities are able to live in the community with accommodation options equal to others, and that these options support the inclusion and participation of people with disabilities in the life of the community. Article 19 requires that States ensure that disabled people have the opportunity to choose with whom they live on an equal basis with others.”
and
“In order to realise these freedoms, States Parties are obliged to ensure that disabled people have access to a range of support services that they may require in order to live freely in the community, and to avoid isolation and segregation from the community. The Convention also requires that steps are taken to ensure that mainstream community services and facilities must be available to disabled people on an equal basis with others and responsive to their needs.”

The UK Government itself has defined independent living as
“all disabled people having the same choice, control and freedom as any other citizen—at home, at work, and as members of the community. This does not necessarily mean disabled people ‘doing everything for themselves’, but it does mean that any practical assistance people need should be based on their own choices and aspirations”.

The Committee discovered that the Government didn’t understand the legal status of the Convention. I’m going to indulge myself by going into this issue a bit further. The then Disabilities Minister (Maria Miller) said that she thought that the Convention was “soft law” in oral evidence. Her reply to the question “Is it hard law or soft law?” was

“the UN Convention is soft law—if one uses those terms—because it is a Convention that does not have legal standing, but it is very much a Convention which every Department is signed up to […] it does drive at the heart of our approach although technically […] it is a soft law approach.”

That’s absolutely incorrect and the Committee took the step of taking legal advice on the question. It summarised its advice and conclusions following that advice. I won’t quote it because I’m not so self-indulgent as all that. To sum it up:
– The Convention is binding international law—i.e. “hard” law.
– It is an international treaty willingly entered into by State Parties and is subject to the law of treaties and the principle that States enter into international agreements and implement those obligations in good faith.
– Since Parliament ratified the Convention on 8 June 2009, the UK has had “hard” international law obligations under it.
– The European Court of Human Rights has begun to take note of the Convention when it interprets the European Convention on Human Rights.
– The UK Courts are required by the Human Rights Act 1998 to take account of ECtHR case law and the Government is bound by its judgments in cases against the UK.
– The Convention wasn’t just ratified by individual states. The EU ratified it as a separate body and is therefore required to interpret EU law and regulation compatibly with the Convention.

Very much hard law. In a generous move, the Committee suggested that perhaps Maria Miller’s mis-step arose out of her not understanding what the terms “hard law” and “soft law” actually mean. The Committee suggests that her confusion over whether the treaty is “hard law” which must be complied with lies in her department’s failure to grasp that the lack of an individual right to bring a claim under it is an entirely different thing to “soft law”. It’s true that it’s not possible to just sue the Government for non-compliance with the Convention. If you bring another claim (say for judicial review of a particular policy like the Bedroom Tax) the UK Courts are required to have regard to the provisions of the Convention in deciding the claim though. It’s the fact that the Government is required to comply with the Convention that makes it “hard law”. The status of the Convention and the way in which is can be enforced are the same as the status of the European Convention of Human Rights and the method of its enforcement before the introduction of the Human Rights Act 1998. Since the Human Rights Act was introduced, it has been possible for individuals to bring direct claims in the UK Courts for breach of the European Convention of Human Rights but that doesn’t mean the Government wasn’t required to comply with the ECHR before 1998 or that UK Courts didn’t take it into account when deciding cases which rose human rights issues before 1998. My inner lawyer finds it hard to believe a Disabilities Minister could make such an obvious mistake when we have decades of international treaties in the human rights sphere to look back on. In practice though, I’m beyond being surprised by the utter stupidity of statements coming out of Government. Anyway, the bottom line is that the Government does have to comply with the Convention and UK Courts are required to have regard to the Convention in any cases involving human rights which fall within its remit.

The Committee went on to consider the obligations of “progressive realisation and non-retrogression”. These are extremely important issues due to the nature of the “reforms” the Government is making:

“As we pointed out in our recent Report on the Welfare Reform Bill, where international human rights treaties protect social, economic and cultural rights, the State is under a particular type of legal obligation: it must take deliberate, concrete and targeted steps towards the realisation of those rights ‘to the maximum extent of their available resources.'”

So, the UK is required to keep up forward motion and not slip backwards in its treatment of disabled people. In the era of austerity, the issue of available resources is vitally important and the Committee wasn’t about to simply assume that the argument that the UK needs to save money justifies departure from the Convention. I couldn’t put this any better than the Committee so I’m just going to quote the whole explanation:

“the duty of progressive realisation entails a strong presumption against retrogressive measures. In its General Comment on the scope of the UN Committee on Economic Social and Cultural Rights right to an adequate standard of living and to social security, the ICESCR explained:
‘There is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under the Covenant. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant, in the context of the full use of the maximum available resources of the State party. The [ICESCR] will look carefully at whether:
(a) there was reasonable justification for the action;
(b) alternatives were comprehensively examined;
(c) there was genuine participation of affected groups in examining the proposed measures and alternatives;
(d) the measures were directly or indirectly discriminatory;
(e) the measures will have a sustained impact on the realization of the right to social security, an unreasonable impact on acquired social security rights or whether an individual or group is deprived of access to the minimum essential level of social security; and
(f) whether there was an independent review of the measures at the national level.’
So, while the principle of progressive realisation within available resources affords States a degree of flexibility in achieving the objectives of the Convention, it does not absolve States of the responsibility to take active steps to protect and fulfil those rights. “Retrogressive” measures, that is, measures which represent a backwards step in terms of the realisation of the rights concerned, require strict justification and even then are not permissible if they are incompatible with the “core obligations”. Although States are free to secure their minimum obligations through a variety of means, those obligations have a “minimum core”, and any failure to meet the minimum standards envisaged will be in violation of the international standards which the United Kingdom has accepted.”

Both the Joint Select Committee and the ICESCR have considered the extent to which social security is an element in achieving the aims of the Convention and the Committee quoted the ICESCR again:
“The right to social security is of central importance in guaranteeing human dignity for all persons when they are faced with circumstances that deprive them of their capacity to fully realise their Covenant rights. To demonstrate compliance with their general and specific obligations, States parties must show that they have taken the necessary steps towards the realisation of the right to social security within their maximum resources, and have guaranteed that the right is enjoyed without discrimination and equally by men and women”.

Violations of this principle would include, for example:
“the adoption of deliberately retrogressive measures incompatible with the core obligations […] the formal repeal or suspension of legislation necessary for the continued enjoyment of the right to social security; […] active denial of the rights of women or particular individuals or groups. Violations through acts of omission can occur when the State party fails to take sufficient and appropriate action to realise the right to social security. In the context of social security, examples of such violations include the failure to take appropriate steps towards the full realisation of everyone’s right to social security; the failure to enforce relevant laws or put into effect policies designed to implement the right to social security […]”

The Committee also noted that the ICESCR had made a statement on the right to housing:
“a general decline in living and housing conditions, directly attributable to policy and legislative decisions by the States parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations under the Covenant”.

Finally, the Committee reported that the ICESCR:
“has also emphasised the particular responsibility on states to ensure that the most vulnerable do not bear a disproportionate burden at times of public spending cuts:
‘The [ICESCR] wishes to emphasize, however, that even where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances. Moreover, the obligations to monitor the extent of the realization, or more especially of the non-realization, of economic, social and cultural rights, and to devise strategies and programmes for their promotion, are not in any way eliminated as a result of resource constraints […] Similarly, the [ICESCR] underlines the fact that even in times of severe resources constraints whether caused by a process of adjustment, of economic recession, or by other factors the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes.'”

I can’t speak for all disabled people (and I’m fortunate not to be affected by the cuts themselves at the moment, although I’m conscious they could form part of my future) but I don’t think we expect fairytale lives. What disabled people are losing now are some of their most basic rights and there is no way it could be said that many disabled people will be able to live independent, fulfilling lives as all of the “reforms” take effect. On 1 March 2012, this was the reported reality for disabled people in the UK:
“The most recent evidence, from the ODI’s Life Opportunities Survey, confirms that… 16% of adults with impairments experienced barriers to education and training, 57% experienced barriers to employment (compared with 26% of those without impairments), 75% experienced barriers to using transport (compared with 60%), 44% of households with at least one person with an impairment experienced barriers to economic life and living standards (compared with 29%) and 82% experienced barriers in leisure, social and cultural activities (compared with 78%).We note the significant disadvantage to disabled people which persists in relation to choice and control and levels of participation in economic and social life and the impact this has on their economic and social well-being, and on what many of our witnesses considered to be their enjoyment of basic human rights. We therefore welcome the Government’s recognition that more progress is required to promote disabled people’s right to independent living.”

Nearly exactly a year later Zoe Williams drew a stark picture of what life is becoming for the most severely disabled people in the UK today. It seems to me that the Government’s continued failure to engage with disability rights activists and even interested mps and to take measures to assess the impact of its reforms on disabled people can’t be justified in the context of the Convention. If you’re wondering why I haven’t said that the reforms themselves breach the Convention, I believe that some or all of them probably do but the proper first step is engagement with disabled people and a full impact assessment to prove it. That’s the bare minimum the Government should be doing right now, today, and it should suspend all further reforms until it has done so. I believe that if the Government took that step, it would have to change course.