3. Memorandum from the Disability Rights
Commission
1. Introduction
1.1 The Disability Rights Commission was created
by the Disability Rights Commission Act 1999. Section II of the
DRCA imposes the following duties on the Commission:
To work towards the elimination of discrimination
against disabled persons;
To promote the equalisation of opportunities for
disabled persons;
To take such steps as is considered appropriate with
a view to encouraging good practice in the treatment of disabled
persons;
To keep under review the workings of the Disability
Discrimination Act (DDA) 1995 and this Act.
1.2 The Commission's goal is a society in which all
disabled people can participate fully as equal citizens.
1.3 We are pleased to submit evidence on the differences
between the proposals of the Government's White Paper "Fairness
for All: A New Commission for Equality and Human Rights"
and the Committee's own report on the structure, functions and
powers of a future CEHR. We also wish to highlight key issues
from our initial analysis of the White Paper proposals.
2. Governance—the need for specific arrangements
for disability
2.1 The DRC has welcomed the proposals in the White
Paper for distinctive governance arrangements in respect of disability
(but see annex for an outline of our outstanding concerns). We
would take issue with the Committee's own recommendations in this
area which we feel do not go far enough towards meeting the goal
of ending disability discrimination.
2.2 We reiterate that new equality arrangements must
retain a major emphasis on disability discrimination. It is essential
that: disabled people are able to exercise direct influence and
control on matters which are directly concerned with disability;
expertise and knowledge of disability are retained; the structures
include a sizeable unit devoted exclusively to disability issues;
and there are sufficient budget and dedicated resources over a
sustained number of years to ensure successful preparation for
and implementation of the major programme of legislative expansion
and reform that lies ahead on disability rights.
2.3 The White Paper makes a number of welcome proposals
towards these objectives including:
a statutory requirement on the Secretary of State
to ensure that at least one person who has, or has had, a disability
is appointed to the Board of the CEHR;
provision in the CEHR legislation for the establishment
of a dedicated disability committee—at least 50 per cent
of whom will be made up of people who have or have had a disability
with decision-making powers on the key areas of work for disability
rights (subject to review after five years).
2.4 We share the Government's view that it is possible
to combine distinctive disability arrangements with a coherent,
over-arching strategy for the CEHR as a whole and would urge the
Committee to review its recommendations in this area.
3. Harmonization and 'leveling-up' of Legislation
and a Positive Duty to promote Human Rights
3.1 The DRC finds itself in agreement with the Committee
on the need for a future CEHR to promote human rights in the broadest
and most inclusive sense, on the need for a positive duty on the
public sector to promote human rights and on the need for enactment
of harmonized equality legislation 'with all deliberate speed'.
3.2 We have strongly advocated the harmonization
of equality legislation and do not in principle see any objection
to that process of harmonization extending to human rights insofar
as such extension is practicable. Since the public sector duty
on race is shortly to be accompanied by similar duties on gender
and disability, a similar extension to human rights is in principle
attractive. No doubt the Government will reasonably expect clarification
of precisely how such a duty would extend the benefits already
afforded by the Human Rights Act in its current form. In addition,
the DRC agrees with the Committee that the upward harmonization
of equality legislation should be a priority for Government.
4. Alternative Dispute Resolution/Conciliation
Services
4.1 The Committee's recent recommendations for "a
general power to support alternative dispute resolution approaches
to allegations of breaches of human rights by public authorities"
goes beyond the more limited proposals in the White Paper which
envisages that conciliation services should be limited to discrimination
cases with a human rights dimension.
4.2 The DRC's own experience of facilitating conciliation
of disability rights disputes is generally encouraging. The extension
of such a service to human rights disputes is in principle desirable,
subject to the necessary safeguard of ensuring that any such service
is towards the rights-based end of the ADR spectrum and not merely
administrative or facilitative (i.e. conciliation needs to be
conducted in the context of the legal framework and be informed
by the expectations and standards thereby created).
5. Human Rights Enforcement
5.1 Neither the Committee nor the Government in its
White Paper support a power to support free-standing human rights
cases. The DRC has since its early days in 2000 proposed that
its case-funding remit be extended beyond the DDA to include stand-alone
human rights cases that depend upon matters relating to the applicant's
disability. The absence of such a power remains a concern for
us.
5.2 The White Paper proposes that the CEHR has powers
to conduct general inquiries on human rights and to seek leave
to intervene in human rights cases. We have welcomed this. The
proposed express power to fund combined human rights and discrimination
cases and the linked ability to continue with the human rights
element even if the discrimination element falls away would go
some small way towards filling the gap.
5.3 The Committee's additional proposal that the
CEHR should be able 'to seek judicial review of the policies or
actions or omissions of a public authority where it has reason
to believe that such policies or actions or omissions have resulted,
or are likely to result, in a violation of the Convention rights'
would also help close the gap and is something we indicated support
for in our previous submission. In previous submissions to the
Committee we have also argued that the CEHR should also have the
power to take cases in its own name, although we note that your
recent report rejects such a power.
6. Accountability and Independence
6.1 The DRC agrees with the Committee that independence
and accountability are essential, especially given the human rights
remit of the CEHR. The Committee has considered this in far greater
depth and produced far more specific proposals than the White
Paper.
6.2 We would expect the Paris Principles in regards
to the establishment of a national human rights body and its relationship
with government to be honoured. As stated in our previous submissions
the DRC believes that the body should report directly to Parliament
by way of a parliamentary committee—this could include extending
the current remit of the JCHR to become a Joint Committee on Human
Rights and Equality. Further, it is the DRC's view that the CEHR
should have it's budget set by parliament and that the process
for public appointments be made through conforming to the 'Nolan
Principles of Public Life'.
7. DRC provisional position paper on the CEHR
7.1 In addition to the specific points highlighted
above, we would like to refer you to the DRC's provisional position
paper on the CEHR (annex) which we are currently consulting on.
This paper highlights both the elements we welcome as well as
issues of ongoing concern in regards to the CEHR and the White
Paper itself.
28 June 2004
Annex: PROVISIONAL POSITION ON THE CEHR WHITE PAPER
GENERAL
The DRC welcomes the White Paper and its broad aspiration
to promote equality and human rights in Britain. The proposals
on disability are an encouraging step in the right direction,
reflecting the Government's recognition of the importance of the
legislative agenda on disability; and the proposed extension of
a public sector duty to gender equality is a significant move
towards the harmonisation of existing equality legislation.
The proposals on disability are especially welcome
in that they indicate an understanding of the distinctiveness
of disability rights:
The unique requirement under the DDA to make 'reasonable
adjustments'
The current very heavy legislative and policy agenda
on disability discrimination (including significant changes to
the employment and services provisions of the DDA in October 2004,
extension of the education provisions in September 2005, new regulations
on vocational training in 2006, and the enactment of a new Disability
Bill before the end of 2006 which will introduce a long-awaited
disability equality duty for the public sector, as well as extending
cover to important gaps on transport, premises and public authority
functions)
The need for a collaborative relationship with employers
and service providers on the particular obstacles to integration
The complex nature of disability discrimination,
which is often the result of an interplay between impairment and
environment
The diversity of disability itself, covering a wide
range of different impairments and experiences of social exclusion
The particular need for understanding of technical
matters relating to specific impairments.
A number of concerns remain, which will need to be
addressed if the CEHR is to be effective on disability and the
other strands. These include the need for dedicated resources
to underpin a disability unit, the continuing desirability of
harmonised equality legislation, the importance of a firm commitment
to enforcement, not just on equality but on human rights, and
the danger that the very broad remit described in the White Paper
will lead to a loss of focus and impact.
THINGS TO WELCOME
The following aspects outlined in the WP deserve
particular welcome:
The recognition, through a number of concrete proposals
on governance, of the distinctive arrangements that will be necessary
on disability to secure the future legislative and policy agenda,
including:
a guaranteed place on the CEHR board for disabled
person
a dedicated disability committee with decision-making
powers on the key areas of work for disability rights (including
those covered by the main provisions of the DDA), a provision
that 50% of committee members must be disabled, and a secure lifetime
of five years until an open review
the appointment of 'transition commissioners' from
the existing Commissions (including the DRC) to oversee the transition
process.
A public sector duty on gender, which represents
an important step towards the harmonisation of equality legislation
A commitment to the maintenance of the legal powers
and functions of the existing Commissions, including a number
of powers available only to the DRC (e.g. arranging conciliation
on education and services cases; entering into binding agreements
in lieu of enforcement action)
A recognition of the need to support individual cases
on a strategic basis, with case-selection criteria prioritised
accordingly in favour of cases that raise points of principle
and offer opportunities for impact and clarification
The commitment to promote a human rights culture
in Britain, with that promotional remit explicitly configured
to include the conduct of general enquiries and third-party intervention
in human rights cases
AREAS OF CONTINUING CONCERN
Harmonised Legislation
The DRC believes a CEHR cannot be fully effective
without new legislation to level up the current provisions for
the various equality strands. It is disappointing that the White
Paper offers no real prospect of harmonised legislation in the
near future, although the 'concrete steps' towards a public sector
duty on gender are to be welcomed as a step in the right direction.
The role of the Disability Commissioner
No doubt an effective Disability Commissioner will
take into account the interests of the CEHR as a whole and to
that extent will not act as a 'representative' pure and simple
of disabled people. However, the purpose of such a dedicated role
on the Board will be defeated if that Disability Commissioner
did not regard it as part of his/her function to have particular
regard to salient disability issues. The disability commissioner
should therefore be able to promote disability issues where appropriate
and as identified by the Disability Committee.
The role of the Disability Committee
The Disability Committee should have oversight not
just of the areas of work expressly mentioned in the White Paper
but of disability-specific employment matters (e.g. those areas
of employment work generated by the 'reasonable adjustment' and
justification provisions of the DDA) and of the public sector
duty on disability
Human Rights
The inclusion of general enquiries and third-party
interventions among the promotional powers on human rights is
welcome. The DRC has since its early days in 2000 proposed that
its case-funding remit be extended beyond the DDA to include stand-alone
human rights cases that depend upon matters relating to the applicant's
disability. This remains an important concern, and the absence
of any express commitment to such a power for the CEHR is to be
regretted. The proposed express power to fund combined human rights
and discrimination cases and the linked ability to continue with
the human rights element even if the discrimination element falls
away goes some small way towards filling the gap.
Strategic Enforcement Powers
Although the CEHR will need to achieve an effective
balance between promotion and enforcement, the desire for a 'light
touch' approach should not diminish the firm commitment to strategic
use of distinctive legal powers, and, especially in respect of
the new strands, the application of funds to the support of key
strategic legal cases.
Wales and Scotland
The provisions for the CEHR in the devolved nations,
and the enhanced level of autonomy that they entail, are welcome
Particular detail still awaits clarification (notwithstanding
the proposals put forward in Chapter 9), for example, precisely
how the CEHR in Scotland will divide its responsibilities with
those of the planned Scottish Human Rights Commission, and whether
the disability-specific work of the CEHR will fall under the primary
supervision of the devolved Committees or the Disability Committee.
Resources and Staffing
It will be essential that the CEHR has adequate resources
to meet its ambitious remit, including its wide-ranging functions
on the promotion of human rights and achievement of social cohesion,
whilst maintaining current levels of strand-specific expertise
across six equality strands, as well as through a presence in
Scotland and Wales and the nine English regions
The present lack of clarity about the commitment
to match the governance arrangements on disability with an appropriately
resourced and dedicated disability unit to deliver the Disability
Committee's programme of work leaves uncertainty about the capacity
of the CEHR to maintain focus, especially when the general remit
of the CEHR (including its social cohesion and human rights ambition)
is so vast
The present lack of clarity on matters of most concern
to existing staff (e.g. location, number of posts, precise degree
of continuity for staff) creates the risk of 'planning blight'
and the lowering of staff morale at the existing Commissions
Regional Arrangements and transfer of expertise
The commitment in the White Paper to capacity-building
voluntary and advice sector organisations to work in partnership
with the CEHR is no doubt a necessary counter-balance to the focused
and strategic approach proposed for other aspects of the CEHR's
work, the achievement of workable and cost-effective arrangements
in the regions will not be easy either to establish or maintain,
especially in those geographical areas (for example, Wales, the
Scottish Highlands, rural regions of England) where there is little
existing infrastructure of service delivery.
Timescale and Transitional Arrangements
Early clarity and more detailed information on timescale
and transitional arrangements for the CEHR shadow body will be
essential if the work of the existing Commissions is to be maintained.
The temptation to rush through legislation, perhaps
even by regulations, should be resisted in favour of a more deliberative
process, certainly to include at least a paving bill and subsequent
primary legislation
The commitments of the existing Commissions to live
work programmes, such as campaigns, litigation and formal investigations,
including the continuing financial liabilities for such work,
should be factored into any transitional arrangements both to
secure continuity and to inform future planning.
May 2004
| 
