Conclusions and recommendations
Introduction
1. We
welcome the Government's decision to sign the Optional Protocol
to the Convention and recommend that the Government confirm its
proposed timetable for ratification without delay. (Paragraph
3)
Progress towards ratification
2. We
remain of the view that the Government should have consulted on
both the justifications for and the precise terms of the reservations
and interpretative declaration it proposes to make to the Convention,
either before the Convention was laid before Parliament, or for
a specified period after the Convention was laid and before ratification.
It is not acceptable for the Government to claim that consultation
cannot take place now because of the need to ratify as soon as
possible, when the Government delayed its own timetable for ratification
in order for departments to agree their positions. Nor can inviting
disabled people and organisations to write to the Minister or
other parliamentarians be a substitute for a proper consultation
on the terms on which the UK will ratify the Convention (Paragraph
13)
3. We
again draw attention to the limited extent to which Parliament
can scrutinise Government proposals to ratify treaties. We call
on the Government to bring forward its proposals for enhancing
parliamentary scrutiny of treaties as soon as possible, whether
in the Constitutional Renewal Bill, or otherwise. (Paragraph
18)
4. While
we welcome the fact that there will be debates in both Houses
on the Convention, this will only happen because the Convention
is to be ratified by the EU and the Commons debate is likely to
take place in a Delegated Legislation Committee. This is a further
illustration of the lack of parliamentary control over treaties
entered into by the UK. We recommend that the Government make
time for a full debate on the Convention in both Houses. (Paragraph
19)
5. The
Government should clarify whether specifying the Convention as
a Community Treaty is a necessary step to UK ratification and
how this will affect the UK's timetable for ratification, particularly
if the scrutiny reserves of Parliament's EU Committees are engaged.
(Paragraph 20)
Reservations: general
6. We
are satisfied that the Explanatory Memorandum sets out the Government's
view (that its proposals for reservation are necessary), subject
to a notable exception which we consider below. While we may
disagree with them, the Government's views are clearly discernible
from the contents of the Explanatory Memorandum. We regret,
however, that the Explanatory Memorandum provides no explanation
of the Government's view that its proposals for reservations and
an interpretative declaration are compatible with the object and
purpose of the Convention. (Paragraph 22)
7. We
welcome the Government's view that the UK should not accede to
any treaty unless domestic law and practice are capable of complying
with its obligations. (Paragraph 26)
8.
Signature of any new international human rights instrument should
provide an opportunity for an audit of national law and policy
with a view to removing any incompatibilities with the rights
guaranteed before ratification, in so far as possible. (Paragraph
26)
9. Acceptance
of new international human rights standards should not trigger
a "wish-list" approach to potential reservations from
departments seeking to protect existing policies and practices.
We note the Government's argument that the Office of Disability
Issues has been involved in scrutinising, discussing and challenging
individual proposals for reservations but regret that the majority
of the reservations outlined to us last year have survived that
scrutiny process apparently unscathed, despite the existence of
serious concerns in relation to many of them, as we discuss below.
(Paragraph 28)
10. Our
experience in scrutinising the United Kingdom implementation of
the UNCRC is that reservations, once in place tend to persist
even where UN monitoring bodies, parliamentary committees and
civil society organisations are united in the view that they are
unnecessary and incompatible with the object and purpose of the
treaty. We start our scrutiny of the reservation and interpretative
declaration proposed for this Convention from the standpoint that
there should be as few such statements as possible, preferably
none, and that where such statements are necessary, the Government
should be committed to making the legislative and other changes
necessary to enable them to be withdrawn as soon as practicable.
(Paragraph 31)
Education
11. We
[therefore] understand why the Government feels it necessary to
enter a reservation and an interpretative declaration to make
clear its understanding that a commitment to inclusive education
is not incompatible with the continued existence of special schools.
(Paragraph 44)
12. We
welcome the restatement in the Explanatory Memorandum of the Government's
commitment to inclusive education. We are concerned, however,
that the scope of the reservation and interpretative declaration
may send a confused message to people with disabilities about
the purpose and intention of the Government's position. We call
on the Government to confirm that nothing in its reservation and
interpretative declaration is intended to enable the Government
to dilute in any way the current strong statutory presumption
in favour of mainstream education for children with special educational
needs. We also ask the Government to confirm that the purpose
of its proposed reservation and interpretative declaration is
simply to clarify that nothing in the Convention requires the
Government to work towards the eventual elimination of special
schools in the UK. If this is the purpose of the Government's
reservation and interpretative declaration, we accept that a lack
of clarity in the Convention may necessitate a reservation and
an interpretative declaration which is compatible with the object
and purpose of the Convention. (Paragraph 46)
Armed forces
13. We
doubt whether the continuing exemption from the Disability Discrimination
Act (as amended) [for service in the armed forces] is necessary.
While this exemption remains in force, we acknowledge that the
reservation proposed by the Government is necessary to achieve
the Government's policy objective. In our view, the existing
exemption is inconsistent with the requirements of the Convention
and would be subject to challenge without a reservation. We reiterate
our recommendation that the existing exemption should be reconsidered
in the Equality Bill. (Paragraph 55)
14. Given
the breadth of the proposed reservation in respect of service
in the armed forces - seeking as it does to remove a major public
authority entirely from a basic provision on non-discrimination
in access to employment - we consider that it is open to challenge
as being incompatible with the object and purpose of the Convention.
(Paragraph 56)
15. If
the Government decides to lodge a reservation in the terms it
proposes, or any alternative based on the principle of combat
effectiveness, we recommend that the Government should commit
to keep the reservation under review and undertake to reconsider
the necessity for the reservation within 6 months of Royal Assent
being granted in respect of the forthcoming Equality Bill. (Paragraph
57)
Immigration
16. We
regret the lack of clarity in the Explanatory Memorandum in respect
of the implications of the proposed reservation on liberty of
movement for the requirements of the Convention. The breadth
of the proposed reservation and its purpose are entirely unclear.
We are disappointed that the elastic text of the proposed reservation
confirms our earlier concern that the Home Office is seeking "catch-all"
protection for any policy relating to immigration and nationality
against the full application of the rights recognised by the Convention.
(Paragraph 62)
17. We
are concerned that the Government is pursuing a broad, general
reservation related to immigration control. The Government has
not provided an adequate explanation of its view that the proposed
reservation is necessary. In any event, we consider that there
is nothing in the Convention or in domestic law which could justify
a reservation of the breadth proposed. (Paragraph 68)
18. Read
literally, this reservation could disapply the Convention in its
entirety in so far as its protection might relate to people subject
to immigration control. In our view, this is incompatible with
the object and purpose of the Convention and does not constitute
a valid reservation. (Paragraph 69)
19. We
recommend that the Government abandon this reservation. We consider
that it is both unnecessary and inconsistent with the object and
purpose of the Convention. (Paragraph 70)
Benefits appointees
20. If
the Government proceeds to lodge this reservation, we recommend
that the review, 12 months after ratification, should provide
a clear analysis of why the Government considers the reservation
is necessary and compatible with the object and purpose of the
Convention. This review must answer the concerns we have set
out above and should contain examples and evidence to support
the Government's views on the continuing need for the reservation.
(Paragraph 71)
21. We
welcome the recognition by the Government that the existing treatment
of benefits appointees is incompatible with the requirements of
the Convention. We agree with the Government's analysis and
consider that, without any change to the current provision, a
reservation is necessary. (Paragraph 78)
22. We
recommend that the Government publish details of its proposal
for a new review mechanism for benefits appointees, together with
any necessary legislative changes and the timetable for reform,
without delay. In keeping with the requirements of the Convention,
we recommend that the Government publish its plans for consultation
and that the Department for Work and Pensions should consult with
disabled people and their organisations. The Government's proposals
will be scrutinised for compatibility with the Convention and
should be designed to facilitate removal of the proposed reservation.
(Paragraph 79)
23. If
legislative changes are needed to implement the Government's plans
to create a system of review for benefits appointees, we recommend
that the Government consider making appropriate amendments to
the Welfare Reform Bill. (Paragraph 80)
Conclusion
24. If
the Government cannot be persuaded that reservations or interpretative
declarations are unnecessary, ratification [of the Convention]
should take priority over lengthy and futile discussions which
would only serve to delay the participation of the United Kingdom
in this important international agreement. (Paragraph 81)
25. We
are concerned that the Government's approach to some of its proposed
reservations has been unduly cautious and may detract from the
positive role which the United Kingdom has so far played in the
adoption and promotion of the Convention. (Paragraph 83)
26. We
will keep compliance with the Convention under review and will
continue to challenge the necessity and desirability of any reservations
and interpretative declarations lodged on ratification. We look
forward to the day when the reservations and interpretative declaration
can be withdrawn. (Paragraph 84)
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