11. Further memorandum from the Disability
Rights Commission
Joint Committee on Human Rights—call for
evidence in relation to:
— the nature and extent of the new
body's human rights remit and its relationship to the equality
functions;
— the human rights-related powers of
the proposed new body;
— and the arrangements to guarantee
its accountability and independence.
The Disability Rights Commission was set up
in April 2000, as an independent statutory agency, following the
passing of the Disability Rights Commission Act 1999, with the
objectives of:
— Working to eliminate discrimination
against disabled people
— Promoting equality of opportunity
for disabled people
— Encouraging good practice in the
treatment of disabled people
— Advising the government on the working
of legislation
From its inception the DRC has recognised that
human rights are of enormous interest to disabled people. In September
2000 we published a guide to the Impact of the Human Rights Act
on Disabled People, to encourage understanding of and awareness
of the importance of the HRA. The fact that the original print
run of 6,000 had been distributed within six months is testimony
to the great resonance that human rights have for disabled people.
This documents supplements the written and oral
presentations made to the JCHR and responds specifically to the
questions posed by the Committee.
GENERAL COMMENTS
1. Structure of the CEHR
1.1 The Commission has already submitted
details to the JCHR of its views on the structure of the CEHR:
in particular, the Commission has proposed a "federal"
arrangement, which should be established in primary legislation,
comprising an "umbrella" body for common issues, including
strategic enforcement, and public sector duty, and units and appointed
committees with executive powers for each strand. In this model,
the "federal" body would deal with cross cutting human
rights and discrimination issues, whilst the strand specific units
would deal with human rights breaches in relation to strand specific
issues.
SPECIFIC ISSUES
RAISED BY
THE JCHR
2. The nature and extent of the new body's
human rights remit and its relationship to the equality functions
2.1 Although it has been the Commission's
position that there should be a separate Commission for Human
Rights, with the CEHR being able to pursue human rights issues
where intrinsically linked with equalities issues, in the absence
of a such a separate commission, the DRC believes that the CEHR
can and should take on the broad range of human rights issues.
2.2 Not only do human rights pervade equality
issues but they are of particular importance to disabled people
and indeed to the Commission. The DRC has intervened in a number
of cases which raise human rights issues for disabled people.
The case of R (ex parte A, B X and Y) v East Sussex County Council
saw the DRC intervening as an interested party, in a case involving
two severely disabled women, affected by the introduction by East
Sussex County Council of a blanket ban on care workers manually
lifting any disabled or older person. Following the intervention
of the DRC, the court emphasised the need for a balanced approach
to the rights of the disabled person and the rights of workers
to be protected by health and safety regulations and stated that
the imposing of a blanket ban on manual lifts represented a "no
risk" regime rather than seeking to offer independence and
dignity to disabled people and minimising any risk to workers.
2.3 The DRC is also awaiting the result
of two other cases in which it has intervened, both involving
the right to life. In one case, that of Burke v General Medical
Council, the DRC has made detailed submissions relating to the
GMC's Guidelines on withholding and withdrawing life prolonging
treatment, guidelines which we believe must be changed to reflect
the rights of disabled people to life. The DRC has drawn up four
`principles' which the DRC believes will ensure disabled people
are not discriminated against when decisions are made about life
saving treatment. Intervention was particularly useful in this
case because the DRC does not agree with the plaintiff's case
that all decisions regarding withholding or withdrawing artificial
nutrition and hydration (ANH) should be decided by a court.
3. The human rights-related powers of the
proposed new body
3.1 The Commission had previously indicated
its agreement with the JCHR that the functions and powers of the
commission should include:
— Promote understanding and awareness
of HR
— Conduct research and fund educational
activities
— Conduct inquiries into public policy
and practice
— Give guidance and promote best practice
in public authorities
— Give guidance and advice to Ministers
and Parliament
— Provide advice and assistance to
the public on finding help to protect their rights
— Promote access to alternatives to
litigation in disputes
— Act as Amicus Curiae in the courts
— Intervene as third party in legal
proceedings on questions of principle
3.2 However, the Commission also believes
that it is essential that the Body should be able to provide help,
including financial, to individuals to take test cases: the Commission
believes that this ability would provide a useful tool for the
CEHR to clarify the law in strategic cases. It would be used sparingly—we
would not envisage an overly litigious commission—but would
be crucial to the litigation strategy. We understand that this
is not currently "on the table" but it is nevertheless
a power which we feel it important for the CEHR to have in relation
to human rights, and we are not convinced by the arguments so
far advanced in favour of the government's position. The DRC has
requested that the power in the DRC Act to enable the commission
to support proceedings in cases other than those involving the
Disability Discrimination Act but in which an applicant relies
upon a matter relating to their disability (s.7(1)(b)) be activated
so as to enable it to bring Human Rights Act claims, but this
has so far been denied.
3.3 As part of its strategic legal strategy,
the Human Rights Body should also have the power to take cases
in its own name where an individual cannot be identified and to
apply for judicial review proceedings in its own name: the former
would enable legitimate issues to be pursued by the commission
but not without tying rulings to the protection of a given individual's
or set of individual's circumstances; whilst the latter would
enable the commission to, where necessary, tackle Convention rights
breaches by public bodies without having to have been itself a
victim of those breaches. These powers would undoubtedly be used
sparingly and would, in any event, form part of a legal strategy
aimed at having recourse to the courts in a minimum of cases for
maximum impact—of furthering the human rights agenda and
ensuring its mainstreaming in society.
3.4 With regard to some of the powers listed
above, we would wish to make the following specific comments:
Formal investigations: it is the Commission's
view that the promotion of human rights should inevitably include
formal investigations and we understand the focus of these to
be primarily upon general investigations. However, it is our view
(supported by leading academics) that the powers contained in
the Disability Rights Commission Act permit the conducting of
general named party investigations and thus we would wish to ensure
that this was captured in the CEHR legislation. In particular,
we would welcome this power being made explicit in the legislation,
for the sake of clarity.
Interventions: we would wish to ensure
that the power to intervene be framed in a manner which enables
it to be flexible and reactive. This is because, as indicated
above, the DRC views interventions as a key instrument in education
in and promotion of human rights concepts. The Commission has
found, however, that intervention is not something which can always
be predicted and in fact the key interventions with which the
Commission has been involved have been largely opportunistic—arising,
for example from contact made by the parties with the commission.
Regardless of how they arise, such interventions can have strategic
and far reaching effects, as evidenced by the case examples cited
above.
3.5 Cases involving both discrimination
and human rights issues: there may well be claims which are
brought on the basis of contraventions of both the DDA and the
HRA. These might include, for example, cases relating to the medical
treatment of disabled people (the extent to which the DDA applies
in these situations has not been determined). Where such a case,
having been taken on by the CEHR, were found by the court not
to engage the DDA, but there remained a Human Rights Act issue,
we would wish the CEHR to be able to continue to represent the
claimant in pursuit of the HRA claim: to do otherwise would leave
a claimant without representation in what would already have been
determined—by virtue of its being taken on—to be an
important case, at what might be a key stage of their complaint.
4. Arrangements to guarantee the accountability
and independence of the CEHR
The Disability Rights Commission has already
said in evidence to the Committee that it believes that the Commission
should be accountable to Parliament rather than the Government.
In particular, in view of the fact that human rights issues are
currently already dealt with by the Joint Committee on Human Rights,
it would seem appropriate to expand the remit of this committee
to encompass equality issues and for the CEHR to report to it
on a regular basis.
In addition, the Commission supports the application
of the Paris Principles in ensuring its independence.
15 March 2004
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