25. Memorandum from RADAR
RADAR was one of the primary campaigners in
the introduction of anti discrimination legislation for disabled
people. The Disability Discrimination Act and the establishment
of the Disability Rights Commission have been key milestones in
RADAR's campaign achievements. For many disabled people and disability
organisations these two achievements have been important in the
recognition of disability as an "equality issue" comparable
to race and gender.
1. INTRODUCTION
1.1 RADAR is a national disability non-government
organisation working on behalf of disabled people, from the broadest
range of cultural, racial and social backgrounds, irrespective
of their impairment.
1.2 RADAR's vision is of a society where
human difference is routinely anticipated, expertly accommodated
and positively celebrated:
— where the dignity of the individual
is paramount;
— where people are valued as individuals;
— where their different needs, ambitions,
choices and abilities are recognised and encouraged (not assumed).
1.3 RADAR's mission is to promote change
by empowering disabled people to achieve their rights and expectations
and by influencing the way that disabled people are viewed as
members of society.
The organisation's primary functions are:
— To provide high-quality campaigning
tools and services to organisations of and for disabled people;
RADAR has over 450 autonomous disability organisations as members
whose interests we seek to represent in all aspects of our work.
— To comment on all major social policy
areas affecting disabled people: anti-discrimination legislation,
health, education, employment, social security, community care,
independent living, mobility, transport and access to the build
environment.
— To provide support, training and
development to networks of disability organisations eg we co-ordinate
a network of over 400 Access Groups throughout the country. These
are voluntary organisations, largely comprising of disabled people,
who come together to work to improve access to the built environment
locally.
1.4 Although RADAR works with organisations
of all types (of and for disabled people) RADAR itself is an organisation
of disabled people. Constitutionally the majority of our governing
board of trustees must be disabled people. Currently, 70% of our
trustees are disabled.
1.5 This submission is based on continued
dialogue with our members and reflects the views of a broad spectrum
of disability organisations covering most impairment groups.
2.1 However, now over seven years after
the introduction of the DDA and three years after the establishment
of the DRC, the New Spirit member consultation where 40% of RADAR's
membership participated, highlighted that disabled people continue
to remain isolated and excluded from society. It is not for nothing
that RADAR's new campaigning manifesto is called The Seven Year
Itch. [161]
2.2 During the consultation, members were
asked to comment on the effectiveness of the DRC in so far as
it had achieved its four statutory duties, relating to disabled
people's participation in society. In most cases, respondents
commented that though the DRC has yet to fulfill its remit it
needed more time to do so. The questionnaire also asked respondents
to identify the barriers faced by disabled people which remained
unaffected by the DDA and the DRC. The areas of discriminatory
and prejudicial attitudes to disabled people and gaining employment
were highlighted prominently.
2.3 The results highlighted the fact that
our members had key concerns around the delivery of anti-discrimination
protection for disabled people. Whilst members accepted the beneficial
affects of legislation were appropriate, clearly they were not
convinced of the overall effectiveness of the anti discrimination
mechanisms as they exist.
2.4 That it not to say that the DDA and
DRC have had no effect on the lives of disabled people but rather
to emphasise that for disabled people to get to a level playing
field, much more needs to be done in terms of achieving equality.
For many disabled people the existing legislation and structures
need to be strengthened and improved in order for disabled people
to fully participate in society.
SINGLE COMMISSION
AND DISABILITY
3. OBSERVING
THE VIEWS
OF DISABLED
PEOPLE, TESTING
THE VIEWS,
DRAWING ON
RESEARCH AND
ENSURING BALANCE
3.1 Since the government announced its intentions
to look at the possibility of introducing a single commission
RADAR has been exposed to many views of disabled people through
the organisations that make up our membership. Over the last year
RADAR has observed some of the anecdotal comments from members
[organisations] who feel the challenge of securing a balanced
message regarding the views of their members [disabled people]
regarding the government's proposals. Many have expressed that:
(i) There is a perception that the "voice"
of grass-roots representative non-government organisations (disability
organisations) has been weakened in the wake of the establishment
of the DRC (UK society has seen that in the case of NGO's representing
women and the black and minority ethnic community following the
establishment of the Equal Opportunities Commission and the Commission
for Racial Equality); partly as a direct result of the misconceptions
amongst disabled people themselves about how far legislation can
go to ensure the full social inclusion of a people.
(ii) It is still early days in determining
the effectiveness of the DRC.
(iii) There is a lack of time, resources
and mechanisms for strand specific non-government organisations
to network and share best practice on this issue.
(iv) There is continued frustration at the
lack of implementation of the Disability Rights Task Force recommendations.
(v) There is a mis-match in the expectations
about what commissions can realistically expect to achieve and
the resource and other limitations [the EOC struggles to address
the significant pay gaps that exist between men and women. The
CRE has been in-equipped to head off the accumulation of factors
that led to the unrest in Oldham]. Organisations of and for disabled
people predict a similar trend while are mindful of the absolute
need and desirability of the need for enforcement agencies.
3.2 Despite these challenges RADAR wanted
to ensure that its response was not a knee-jerk reaction, nor
the "best guess" as to what disabled people would want.
RADAR did not want to pre-suppose the fact that disabled people
would instinctively resist a Single Equalities Body. Nor did the
organisation want to fall into the trap of peddling the language
of inevitability.
3.3 Given the significant New Spirit[162]
consultation which demonstrated that members were open and ambitious
for next generation thinking in the furtherance of human rights
issues it seemed sensible to enter the debate positively and with
an open mind.
3.4 In addition to discussing the issue
with members in regional forums in 2002 RADAR brought together
members and non-members in a series of briefing meetings in February
2002 to elicit initial views. The summary of views were that:
While there were mixed feelings about the advantages
and disadvantages for a single body, there was unanimous consensus
that disabled people must be fully engaged in the debate.
— Opinions ranged from seeing the proposals
as an opportunity to unite the equality movement to guarded caution
that any move towards a CEHR could dissipate the effectiveness
and current remit of the Disability Rights Commission and the
Disability Discrimination Act 1995.
— There was real desire to enter into
the debate robustly and positively.
— There was a strong call to ensure
that disability organisations of and for disabled people are provided
with the opportunity to engage their respective constituencies
with debate in a real way and to see their expectations reflected
in the eventual outcome.
3.5 As another way of testing the water
in this area a number of organisations (RADAR, MIND, SCOPE, RNID,
RNIB and DRC) funded some research to investigate the effectiveness
of single equality bodies in protecting the rights of disabled
people in Northern Ireland and the Republic of Ireland. The Executive
Summary is attached. [163]Also
enclosed with this response paper is the full findings together
with a paper that indicates initial work to identify the Ideal
Conditions for the establishment and running of a single commission
(CEHR). [164]
3.6 The most notable findings show that:
(i) There is considerable support for the
concept of a single authority overseeing all aspects of equality;
(ii) There are still some concerns about
the powers and functions of the commissions;
(iii) To enable disabled people to obtain
the rights they seek more needs to be done than just changing
institutions;
(iv) Disability can be accommodated within
a single body, though it is essential that expertise already built
up is not lost;
(v) Attention to structure and resources
is of crucial importance.
3.7 In addition, advantages such as the
mainstreaming of disability issues and concerns and an increased
awareness and understanding of disability related matters from
employers and service providers were highlighted by participants.
3.8 There was some concern across the board
that without sufficient enforcement of powers and tools relating
to issues such as personal advocacy and needs assessments any
institution overseeing equality would struggle to meet the needs
of disabled people. However, in respect of making disability a
"special case" the disability lobby in Northern Ireland
stated that they would lose credibility with employers and service
providers if disability was not part of a single equality body.
3.9 The research highlighted the fact that
disabled people sought legislative change under a single equalities
body that would affect them directly and that structural change
alone would not be enough. The structure of any commission must
protect and enhance disability expertise in addition to offering
clear points of reference to all stakeholders.
4. DISABILITY
AND HUMAN
RIGHTS
4.1 Until recently, disabled people have
constituted a minority in obscurity. Unlike some other minority
groups that fall victim to discrimination, disabled people do
not comprise a self-contained, close-knit social community. Instead,
they populate every social sector, every class, every age group,
every ethnic and religious community. And at every level, society
has tended to ignore people, believing them incapable of participating
in the community, or avoiding them as unpleasant reminders of
the fragility of our existence.
4.2 The disability rights debate is not
about the enjoyment of specific rights. Rather, it is about ensuring
the equal effective enjoyment of all human rights, without discrimination,
by people with disabilities. The non-discrimination principle
helps make human rights relevant in the specific context of disability,
just as it does in the contexts of age, sex and children. Non-discrimination,
and the equal effective enjoyment of all human rights by people
with disabilities are therefore the dominant theme of the long-overdue
reform in the way disability and persons with disabilities are
viewed throughout the world.
4.3 In the last two decades, the approach
towards persons with disabilities has changed, and they have started
to be viewed as holders of rights. The shift to a rights-based
approach has been authoritatively endorsed by the United Nations,
and is reflected in several developments which have taken place
at the international and national level since the proclamation
by the General Assembly of the year 1981 as the "International
Year of the Disabled" under the slogan "Full Participation
and Equality".
4.4 RADAR welcomes the establishment of
the CEHR and specifically its remit to develop and enhance human
rights.
5. NATURE AND
EXTENT OF
THE CEHR'S—
HUMAN RIGHTS
REMIT
5.1 Lessons from the existing commission
and in particular the DRC suggests that defining the nature, extent
and powers of any commission at the outset is the key to the success
of the commission
5.2 A considerable range of human rights
involve issues of equality and non-discrimination, the nature
and extent of a joint human rights and equality commission must
allow for a comprehensive approach to both equality and human
rights.
5.3 A joint human rights and equality commission
must have the scope of action to protect individuals and groups
against discrimination in areas such as due process and bioethics,
where equality commissions frequently have lacked the expertise
and authority to intervene effectively. The commissions remit
should also extend to promoting and encouraging the mainstreaming
of human rights and equality.
6. HUMAN RIGHTS
AND EQUALITY
FUNCTIONS
6.1 Lessons from other jurisdictions suggest
that there is no sense in separating equality and human rights.
A holistic approach is required to both that recognises their
common concerns. Principle of respect for the autonomy and diversity
of each individual underlies all human rights, including equality.
6.2 The new department of constitutional
affairs has made it clear that it will not set up a separate human
rights commission. It is therefore essential that the any new
broad single equality commission has wide-ranging powers and functions
that enable it to address human rights issues.
6.3 The approach and values of a single
equality commission with human rights functions, in the absence
of a human rights commission, has to be infused with human rights
values.
6.4 There is however potential danger that
by putting all equality work under one commission and then adding
on top human rights would leave that body overstretched. This
could result in a dilution of focus and a potential loss of effectiveness
in respect of the equality functions.
7. HUMAN RIGHTS
POWERS OF
THE CEHR
7.1 Any new commission must have the power
to enforce and promote the core principle of respect for the autonomy
and diversity of each individual which underlies all basic human
rights.
7.2 Disabled people in particular face significant
challenges in protecting their human rights. The Disability Discrimination
Act has significant flaws and the notion of reasonableness, which
is unique to disability discrimination, allows for significant
abuses of rights within the law. In relation to the Human Rights
Act there is lack of protection for, or understanding of, disabled
people's Article 8 rights to respect their private and family
rights, including the concept of bodily integrity.
7.3 The inability of the DRC to take cases
on human rights issues has caused considerable problems for disabled
people to enforce their rights. This is particularly so in relation
to decisions and policies of care providers. It is essential therefore
that the CEHR has the power to take cases on human rights.
7.4 To ensure that CEHR serves the interests
of disabled stakeholders it must have the power enforce and promote
the following core principles of human rights:
7.5 The CEHR must have the power and duty
to promote and human rights. This must include promotional work
with public authorities and with relevant parts of the private
sector.
7.6 An effective CEHR must have the following
functions, powers and duties relating to human rights:
— Power to carry out named investigations
into alleged breaches of human rights.
— Power to carry out general enquiries
to explore issues of public interest.
— Review legislation and explore avenues
for change.
— Power to take on, and continue discrimination
cases with a human rights element.
8. ACCOUNTABILITY
AND INDEPENDENCE
8.1 A single equality commission will require
considerable safeguards against political interference which may
impact upon its size, amount and sphere of influence and its ability
to promote equality in an effective manner.
8.2 Challenges to independence in comparative
experience tend to come in two forms in particular: drastic funding
cuts; and interference in the appointment of commissioners.
8.3 The link between the commission and
government needs to be clearly defined. It should be clear that
the commission has the ability to publicly challenge government
and departmental policy, while maintaining constructive engagement
with public authorities in general.
8.4 Consideration also needs to be given
to enhancing the relationship between Parliament and the CEHR,
by opening up the reporting powers of the commission and enhancing
the link between it and the relevant select committees.
9. CONCLUSION
AND KEY
MESSAGES
9.1 RADAR's view is that the concept of
diversity (as a useful social construct that recognises that all
people are different) must incorporate all strands of equality,
including disability. We equally believe that it is of no co-incidence
that it has taken far longer for disability issues [as well as
age, sexual orientation and religion], as opposed to race and
gender issues to get anything like the same degree of focus and
investment in the protection of rights and freedoms.
9.2 The implication is that, as the government
reflects on the advantages and disadvantages of a CEHR [and the
absolute need to ensure that other groups of people are protected
from discrimination], existing structures for equality for race,
gender and disability must be overhauled. However this must be
done from a place of vision, stretch in ambition and conviction
that there is real and imaginative added value in joining up groups
of people who continue to be face discrimination. This would be
the pre-cursor to the subsequent shift in the structural acknowledgement
of diversity as a founding principle of equality.
9.3 When all strands of equality are mainstreamed
so too would our vision that human difference is routinely accepted
come to fruition. However, this would not be achieved were there
to be any "dumbing down" regarding the particular challenges
that disabled people face. A possible move to a CEHR might be
part of the shift, however every effort must be made by the government
to ensure that transition processes and existing rights are strengthened
and not eroded.
9.4 Key messages
9.4.1 Any new institution must serve the
interests of disabled people at least as well as the existing
regime.
9.4.2 A single equality body encompassing
all aspects of equality has the potential to benefit disabled
people by mainstreaming disability within an inclusive society
and addressing multiple discrimination.
9.4.3 Consultation with our members shows
that their priority concerns are in relation to access to education,
employment, transport, built environment, housing, independent
living, economic independence, politics and legislation, information
and health.
9.4.4 In the furtherance of 9.3.1 above
the structure of any single body must ensure that adequate specialist
resources are devoted to the priority concerns of disabled people
(9.3.3) and that related priorities and policies are determined
by people with personal experience of disability.
9.4.5 Legislation (current and planned)
is the beginning, not the end, of the process of liberating disabled
people; it takes many years of sustained effort to secure its
benefits. Specialist resources referred to in 9.3.4 above must
not be compromised in the short to medium term.
March 2004
161 The Seven Year Itch is RADAR's new campaign manifesto
that highlights the seven years since the passing of the DDA and
the many areas of life for disabled people that the DDA does not
address. Back
162
New Spirit is a deliberate over-arching campaign quest to be helpful
in injecting new optimism and energy into the disabled persons'
movement. It also captures the need for disabled people to consciously
work to the spirit of any legislation of the day; observing the
learning from other NGOs that legislation and enforcement agencies
cannot alone bring full human rights to bear. Back
163
Single Equality Body (SEB) research-Executive Summary: as agreed
by the SEB research steering group (Changing Faces, Disability
Law Service, Disability Rights Commission, Leonard Cheshire, MENCAP,
MIND, RADAR, RNIB, RNID and SCOPE) meeting on 11 February 2003. Back
164
SEB research-The ideal conditions for the establishment and running
of a Single Equality Body: as agreed by the SEB research steering
group (Changing Faces, Disability Law Service, Disability Rights
Commission, Leonard Cheshire, MENCAP, MIND, RADAR, RNIB, RNID
and SCOPE) meeting on 11 February 2003. Back
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