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;
– 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.”
“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.