Parliamentary Seminar – 21st March 2012

JOINT COMMITTEE ON HUMAN RIGHTS INQUIRY – IMPLEMENTATION OF DISABLED PEOPLE’S RIGHT TO INDEPENDENT LIVING

What we will address

An overview of the Inquiry Understanding UNCRPD & the

government’s obligations Key findings and recommendations Concluding remarks

Overview of the Inquiry

Terms of reference focused on: Effectiveness of existing strategy, policy

and legislation The impact of spending decisions Disabled people’s involvement in policy

development and decision-making Monitoring and implementation of the

Convention

Overview of the Inquiry

Over 100 pieces of written and oral evidence

Committee visited Essex Coalition of Disabled People

Session with Minister for Disabled People, Minister for Care Services and Minister for Local Government

UNDERSTANDING THE UNCRPD

Purpose of the Convention

Re-affirms the human rights of “persons with disabilities” as set out in ICCPR, ICESCR and other UN Treaties (e.g. UNCRC, UNCEDAW)

Situates these human rights in the context of disability e.g. right to live independently and to be included in the community

(officially) does not introduce new rights Based on social model of disability Sets out the steps States must take to protect,

promote and ensure the human rights of disabled people

Structure of the Convention

Articles 1-9 are considered to be ‘cross-cutting’ Articles of general application e.g. Purpose, general principles, general obligations, equality and non-discrimination, awareness raising, accessibility

Articles 10-30 are ‘substantive’ Articles e.g. Legal Capacity, Access to Justice, Education, Health, Political Participation

Articles 31-50 concern implementation and monitoring e.g. data collection, international cooperation, role of the CRPD Committee, national implementation and monitoring

Article 3 – General Principles

The principles of the present Convention shall be: Respect for 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; Equality of opportunity; Accessibility; Equality between men and women; Respect for the evolving capacities of ‘children with

disabilities’ and respect for the right of ‘children with disabilities’ to preserve their identities.

A human rights convention or a social development convention? UNCRPD blurs the distinction between civil

and political rights and economic and social rights

“Not enough just to open the door. Many disabled people require the material support to pass through it” Prof. Gerard Quinn

Articles co-mingle different classes of rights: Positive obligations underpinning civil and political rights, reasonable accommodation, civil and political rights contingent on economic and social rights e.g. Article 19

‘Substantive freedom’ – Amartya Sen

Article 4 - General obligations

States Parties undertake: a) To adopt all appropriate law, policy and

measures to implement the Convention b) To modify or abolish existing laws,

regulations, customs and practices that constitute discrimination

c) To take into account the protection and promotion of the human rights of ‘persons with disabilities’ in all policies and programmes;

d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention;

Article 4 – General Obligations

e) To take all appropriate measures to eliminate discrimination on ‘the basis of disability’

2 Take measures to progressively realise economic, social and cultural rights

3 Consult with actively involve disabled people in implementation

5. Ensure all parts of ‘federal States’ are covered

Article 19 - Living independently and being included in the community

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:

Article 19 continued

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.

Article 19 requires a variety of different actions and measures.

Article 19 (a) implies rights to self-determination in relation to matters affecting where and with whom a disabled person lives and the means by which disabled people are involved in decisions affecting them.

This suggests a need for legal and/or administrative mechanisms which protect and promote choice and control regarding where and with whom disabled people live.

Article 19 (b) appears to recognise social and economic rights of disabled people and as such obliges a contracting State to:

“take measures to the maximum of its available resources with a view to achieving progressively the full realization of these rights, without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law”.

Article 19 (c) is more in the nature of civil and political rights

Non-discrimination in relation to accessing goods and services, including the duty to make reasonable accommodations, legislative measures for which are required with immediate effect, and the promotion of accessibility

FINDINGS AND RECOMMENDATIONS

Status of the Convention in UK and EU law

Minister indicated government view that Convention was ‘soft law’

“Soft law” is the term generally used to describe standards which do not have the status of being legally binding on the State in international law. Treaties are legally binding on the state in international law and the obligations contained in treaties are always “hard law”.

The government should fulfil its obligations on this basis & counter public misperceptions

Status of the Convention in UK and EU law

Does not have direct effect in domestic Courts Legal effect via Human Rights Act 1998 and

European Communities Act 1972 ECtHR has begun to take note of UNCRPD – UK

government bound by its judgements and UK courts will be influenced by its jurisprudence

EU has ratified UNCRPD – required to interpret EU law and regulation compatibly with the Convention

UK has also ratified the ‘Optional Protocol’ , enabling individual petition to the UNCRPD Committee

Is government meeting is general obligations?

Witnesses unclear as to status of documents such as the Independent Living Strategy & 2020 Roadmap

JCHR recommended forthcoming Disability Strategy be basis for UK national implementation plan

Must be ‘robust, targeted and deliverable, co-produced with disabled people and cover all aspects of the Convention’

Should include clear milestones and be monitored by an independent body

Is government meeting is general obligations?

No evidence of UNCRPD playing a part in relevant policy development and decisions – seeks commitment from government to Parliament that it will give due consideration to UNCRPD when making new policy and legislation

Poor quality Equality Impact Assessments & confusion over duties of government and public authorities to conduct them

Regrets exclusion from English specific duties of explicit EIA requirement and calls for revision of promotion of EIA via statutory guidance

Recommends a unified assessment of cumulative impact of proposals affecting independent living, setting out relevant mitigations via the Disability Strategy

Is government meeting is general obligations?

Unclear what arrangements exist to ensure compliance by public authorities

Government should clarify how implementation is coordinated across Westminster, Holyrood, Cardiff and Belfast

Seeks assurances of disabled people’s involvement, not just their consultation, describes the lack of an explicit requirement to involve disabled people in the English specific duties as a ‘retrogressive step’ and recommends government actively promote such involvement in line with the General Obligations under Article 4 (2)

Notes low awareness of UNCRPD among disabled people and recommends government work with disabled people to rectify this

Is UK law and policy sufficient to implement Article 19?

Existing ‘matrix’ of human rights, equality and community care law insufficient

Right to control should be rolled out nationwide if pilots show positive results

Independent living should be an outcome in reformed community care law, contrary to the Law Commission’s conclusions

Right to advocacy in 1986 Disabled Persons Act should be modified and implemented

Is UK law and policy sufficient to implement Article 19?

But filling the gaps not enough…. Recommend an assessment of the need for and

feasibility of freestanding legislation to give more concrete effect in UK law to right to independent living

Chimes with comment by CoE Human Rights Commissioner (March 2012): “There is a need to define a level of support below which one’s dignity and ability to be included in the community is compromised. Any person should be empowered to enforce their entitlement to this level of support.”

Other policy recommendations

National and local government should monitor and promote innovative practices which employ personalisation to mitigate the impact of spending cuts

Government should measure the effectiveness of roll out of personal budgets in social care and health on choice and control

Government should consider what steps are required to ensure portability measures comply with Article 19

The Disability Strategy should address the rights of disabled people in residential settings

Disabled people in residential settings should not face financial disincentives to paid employment

The Government should, in partnership with disabled people’s organisations, monitor the extent to which regulation and inspection frameworks are promoting independent living in both domiciliary and institutional settings.

Other policy recommendations Government should legislate to clarify that home care

delivered by private and voluntary sector bodies falls within the scope of the Human Rights Act

Continue to support and develop the role of Disabled People’s User-Led Organisations to enable them to provide independent information, advice, and advocacy services

Government should refrain from contributing to representations of disabled people which cause negative public attitudes or hostility

The Government should monitor the extent to which access to redress and justice for disabled people is affected by the provisions of the Legal Aid, Sentencing and Punishment of Offenders Bill, and the effect this has on their right to independent living. The Disability Strategy should include action to be taken to ensure disabled people's access to redress and justice.

The impact of national and local spending decisions

Concern expressed to the Committee about the individual and cumulative impacts of reforms and spending decisions

Disability Living Allowance, Housing Benefit, the Independent Living Fund, Legal Aid and local authority funding of adult social care on the right to independent living

Do these reforms amount to breaches or ‘retrogression’ in relation to Article 19?

When might reform or spending decisions amount to retrogression?

“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.”

When might reform or spending decisions amount to retrogression?

General Comment 4 UN Committee on ESC rights “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”.

Paragraph 11:  “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.”

Concluding remarks

Inquiry has demonstrated implementation gap and risks of non compliance

UNCRPD is a powerful accountability mechanism in the domestic sphere, not just the international

JCHR Inquiry receiving world-wide interest

Report should be used as basis of a dialogue between disabled people, government, independent mechanisms and other actors to plan next steps