Select Committee on European Scrutiny First Report


10 UN Convention on the Rights of Persons with Disabilities

(30110) 12892/2/08 REV 2 COM(08) 530/2 VOL I

+ ADD 1 REV 1 COM(08) 530/2 VOL II

Draft Decision on the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities

Draft Decision on the conclusion, by the European Community, of the Optional Protocol to the UN Convention on the Rights of People with Disabilities

Legal baseArticles 13, 26, 47(2), 55, 71(1), 80(2), 93, 95, 285, 300(2) and 300(3) EC; consultation; unanimity
Document originated29 August 2008
Deposited in Parliament11 November 2008
DepartmentWork and Pensions
Basis of considerationEMs of 24 November 2008
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information awaited

Summary

10.1 In 2004, the Council approved a mandate for the Commission to conduct negotiations, on behalf of the EC, on the proposal for a UN Convention on the Rights of People with Disabilities (the Convention). The UN General Assembly adopted the Convention in 2006. In 2007, the Council authorised the Commission to sign the Convention on behalf of the EC. The Convention came into effect in May 2008. The Community has not yet formally acceded to it.

10.2 There is an Optional Protocol to the Convention which:

  • authorises a Committee created by the Convention ("the Committee on the Rights of Persons with Disabilities") to consider claims by individuals or groups that their Convention rights have been violated by a State which is a party to the Optional Protocol; and
  • establishes a procedure for the Committee to conduct an inquiry if it receives reliable information indicating grave or systematic violations of the Convention and requiring the State concerned to respond to the Committee's inquiry.

The Community has not yet signed the Optional Protocol.

10.3 In the Commission's view, the Community should now formally conclude its accession to the Convention. It proposes a Council Decision for that purpose, which it describes as "VOL I". The Commission also believes that the EC should accede to the Optional Protocol and proposes another draft Decision for that purpose (described as "VOL II").

10.4 The Government is itself a signatory of the Convention and agrees with the Commission that the Community should accede to it. But the Government has reservations about some of the provisions of the "VOL I" Decision. For example, it has reservations about the proposed Declaration in an Annex to the draft Decision about the matters covered by the Convention for which the Community has competence. Moreover, in the Government's view, consideration of the Community's accession to the Optional Protocol should be deferred until the Council's discussions of the "VOL I" Decision have been completed and an agreement has been reached. The Government intends to keep us informed of the Council's negotiations on the drafts.

10.5 We shall await the further information the Government will be sending us and, meanwhile, we shall keep the draft Decisions under scrutiny.

The UN Convention

10.6 The text of the Convention is reproduced in Annex 1 of the draft of the "VOL I" Decision. The Convention's aim is to ensure that people with disabilities are able to enjoy to the full their human rights and fundamental freedoms. For example:

  • Article 4 sets out the action, such as eliminating discrimination on grounds of disability, that the States which are the parties to the Convention (States Parties) should take to achieve the Convention's aim.
  • Article 9 requires States Parties to ensure that people with disabilities have equal access to schools, housing, medical facilities, transport, ICT and other publicly available facilities.
  • Articles 16 requires States Parties to take action to protect people with disabilities from exploitation, violence and abuse.
  • Articles 17 to 30 are concerned with the rights of people with disabilities to respect for their physical and mental integrity and to independent living, social inclusion, personal mobility, freedom of expression, privacy, family life, education, health, rehabilitation services, work and employment and participation in public, political, cultural, recreational and sporting activities.
  • Article 33 requires States Parties to nominate one or more "focal points" on matters relating to the implementation of the Convention. It also requires them to establish one or more independent mechanisms to promote, protect and monitor implementation.
  • Article 34 establishes a Committee on the Rights of Persons with Disabilities with a maximum membership of 18 experts, elected by the States Parties.
  • Article 35 requires each of the States Parties to send the Committee a report on the action they have taken to implement the Convention after two years and further reports every four years.
  • Article 36 provides for the Committee to consider the national reports and, if they think fit, make suggestions and recommendations to the State Party concerned.
  • Article 42 declares that the Convention is open to signature by all states and by "regional integration organisations" (such as the EC).
  • Regional integration organisations are required by Article 44(1) to set out, in their accession documents, the extent of their competence for the matters governed by the Convention.

The draft of the "VOL I" Decision

10.7 Article 1 of the draft VOL 1 Decision approves the Convention on behalf of the Community, subject to the reservation in section 2 of Annex 2. The reservation states that the provision in Article 27(1) of the Convention about the right to equal treatment in work and employment is without prejudice to the provision in an EC Directive adopted by the Council in 2000 which gives Member States discretion to exclude the armed services from the scope of that Directive's provisions on the prohibition of discrimination on grounds of disability.[35]

10.8 The draft Decision also:

  • authorises the President of the Council to designate the person to deposit with the UN Secretary-General the formal instrument of the Community's accession to the Convention and the reservation in section 2 of Annex 2;
  • makes the Commission a focal point for matters relating to the implementation of the Convention;
  • requires the Council, on a proposal by the Commission, to designate or establish one or more independent mechanisms to promote, protect and monitor the implementation of the matters which are within the Community's competence;
  • authorises the Commission to choose and nominate an expert for membership of the Committee on the Rights of Persons with Disabilities;
  • requires Member States to send the Commission reports on the implementation of matters within the Community's competence for the Commision to transmit to the Committee on the Rights of Persons with Disabilities;
  • makes the Commission the Community's representative at meetings of the bodies created by the Convention when matters within the Community's competence are to be discussed; and
  • authorises the Council, on the basis of a proposal by the Commission, to submit to the UN an amendment to the Convention or to denounce the Convention.

The Government's view on the draft of the "VOL I" Decision

10.9 In his Explanatory Memorandum of 24 November on this proposal, the Parliamentary Under-Secretary of State at the Department of Work and Pensions (Jonathan Shaw) tells us that the Government supported the adoption of the UN Convention and agrees that the Community's accession to it should be concluded.

10.10 However, the Government:

  • considers that the Declaration in section 1 of Annex 2 of the draft Decision needs to be reviewed and revised to ensure that it does not declare a degree of competence beyond the competences the Member States have in fact transferred to the Community;
  • questions whether the proposed allocation to the Commission of responsibilities for implementation, monitoring and reporting are appropriate and properly respect the Member States' competence for certain matters;
  • questions whether it is appropriate to include the allocation of those responsibilities in a Decision about the Community's formal accession; and
  • for the same reason, questions the inclusion in the draft Decision of the proposed provisions on amendments to the Convention or denunciation of it.

10.11 The Minister also tells us that the Government is still considering whether the reservation in section 2 of Annex 2 of the draft Decision fully meets the UK's requirements on service in the armed forces.

10.12 Finally, the Minister promises us a further Explanatory Memorandum in due course on the outcome of the discussions on the draft Decision between Member States and the Commission.

The draft of the "VOL II" Decision

10.13 The Optional Protocol to the Convention authorises the Committee on the Rights of Persons with Disabilities, established by Article 34 of the Convention, to consider claims by individuals or groups that their Convention rights have been violated by a State which is a party to the Optional Protocol. The Protocol also authorises the Committee to conduct an inquiry if it receives reliable information indicating grave or systematic violations of the Convention and requires the State concerned to respond to the Committee's inquiry.

10.14 The main purpose of the proposed "VOL II" Decision is to approve the Community's accession to the Optional Protocol. It also:

  • authorises the President of the Council to designate a person to deposit with the UN Secretary-General the instrument of accession;
  • requires the Commission to inform and consult the Member State concerned whenever the Committee on the Rights of Persons with Disabilities draws to the Commission's attention a communication which involves that Member State; and places a reciprocal obligation on Member States to inform and consult the Commission; and
  • authorises the Council, on the basis of a proposal by the Commission, to submit to the UN an amendment to the Protocol or denounce the Protocol.

The Government's view on the draft of the "VOL II" Decision

10.15 The Minister tells us that the Government will press for consideration of the "VOL II" proposal to be deferred until after the discussions about the draft of the "VOL I" Decision have been completed and an agreement has been reached.

Conclusion

10.16 We share the Government's view that the Declaration in section 1 of Annex 2 of the draft of the "VOL I" Decision should be reviewed to ensure that it correctly defines the Community's competence for matters covered by the UN Convention and fully respects the competences of the Member States.

10.17 The successful implementation of the Convention for the benefit of people with disabilities depends crucially on what the Member States do. In our view, this needs to be reflected in the allocation of responsibilities between the Commission and Member States for monitoring and reporting on implementation. We are glad, therefore, that the Government will be examining the draft of the VOL I Decision with that in mind.

10.18 The Minister does not explain why, in the Government's view, consideration of the draft of the VOL II Decision should be deferred. We can see, however, that it might be logical to settle the more pressing issue of Community's accession to the Convention itself before turning to the lesser question of whether the Community should accede the Protocol.

10.19 We are grateful for the Minister's promise to provide us with a further Explanatory Memorandum about the progress of the negotiations. We shall await that information and, meanwhile, we shall keep both of the draft Decisions under scrutiny.





35   Article 3(4), Council Directive 2000/78/EC: OJ No. L 303, 2.12.2000, p. 16. Back


 
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Prepared 18 December 2008