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
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| Legal base | Articles 13, 26, 47(2), 55, 71(1), 80(2), 93, 95, 285, 300(2) and 300(3) EC; consultation; unanimity
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| Document originated | 29 August 2008
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| Deposited in Parliament | 11 November 2008
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| Department | Work and Pensions
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| Basis of consideration | EMs of 24 November 2008
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information awaited
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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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