UN Convention on the Rights of Persons with Disabilities: Reservations and Interpretative Declaration

UN Convention on the Rights of Persons with Disabilities: Reservations and Interpretative Declaration - Human Rights Joint Committee Contents

Written Evidence

Letter to Jonathan Shaw MP, Minister for Disabled People, dated 10 March 2009

We were grateful to receive your letter of 3 March, enclosing the Government response to our report on the UN Disabled Rights Convention and the explanatory memorandum to the Convention. We note that the process for ratification of the Convention has now commenced and that ratification may occur any time after 24 March, once the period for parliamentary scrutiny under the Ponsonby Rule has elapsed.

My Committee discussed this issue at its meeting last week, when it also agreed to publish the Government response to our report. We intend to publish a short report on the Convention, focusing on the reservations and interpretative declarations which have now been published. We do not at this stage anticipate seeking any more information from you about the proposed reservations and declarations. I would be helpful, however, if you could keep us up to date with your plans for ratification and could send us the Order in Council necessary for designating the Convention as a Community treaty once it is available.

We aim to be in a position to conclude our scrutiny of the Convention around Easter. I would be grateful if you could delay ratification of the treaty until that time, to enable us to conclude our work.

Letter from Jonathan Shaw MP, dated 23 March 2009

Thank you for your letter of 10 March concerning the UN Convention. I note that the Committee intends to produce a short report focusing on the proposals for reservations and a declaration to be entered on ratification of the Convention.

As you requested, I am enclosing a copy of the draft European Communities (Definition of Treaties) (United Nations Convention on the Rights of Persons with Disabilities) Order 2009, which has now been laid before Parliament.

Memorandum submitted by Anita Bennett, dated 23 March 2009

I wish to make a submission to the Joint Committee on Human Rights in respect of the UN Convention on the Rights of Persons with Disabilities (the UN Disability Convention).

I understand that your Committee is to examine the Government's response and the proposal for ratification of the UN Disability Convention but only with interpretive declarations and / or reservations (opt-outs) particularly in respect of the Convention's Article 24: Education.

I fully support the Government's proposal to ratify the Convention with certain reservations / interpretive declarations to Article 24: Education, as it is essential that the right of children and young people with special needs, learning disabilities, autism and other complex needs; and their parents / family carers; to choose a special school education is preserved and upheld.

Where a local area does not have a range of appropriate mainstream and special school provision of different kinds to meet different needs available, it is especially important that parents and family carers retain the right to be able to choose appropriate special school and other specialist provision outside their own area. Inclusion is not achieved by closing or blocking access to the special school or other specialist provision that families need.

Where I mention the right to access special schools, this should also be taken to include the right to access special college provision.

Similarly, for adults with special needs, learning disabilities, autism and other complex and multiple conditions, they and their parents / family carers must be allowed to access a range of housing and care provision of different types to meet different needs. I note that the UN Convention also seeks to promote independent living for adults with disabilities.

My daughter with Downs Syndrome has benefitted enormously from special schools with a emphasis on adapted Rudolf Steiner approaches, especially as she got older and was simply bringing up the bottom in mainstream primary school.

Memorandum submitted by Disability Action, dated 23 March 2009

Introduction

Disability Action is a pioneering Northern Ireland charity working with and for people with disabilities. We work with our members to provide information, training, transport, awareness programmes and representation for people regardless of their disability; whether that is physical, mental, sensory, hidden or learning disability.

In Northern Ireland, more than one in five of the population has a disability and over one quarter of all families here are directly affected by disability issues.

As a campaigning body, we work to bring about positive change to the social, economic and cultural life of people with disabilities and consequently our entire community. In pursuit of our aims we serve 45,000 people each year.

Disability Action has recently established a Centre on Human Rights for People with Disabilities. The Centre aims to secure the human rights of people with disabilities across Northern Ireland and to foster a culture of human rights for people with disabilities through education and capacity building within the sector, and the use of lobbying, influencing and legal challenge.

The Centre on Human Rights for People with Disabilities welcomes the opportunity to submit a response to the Joint Committee on Human Rights.

Specific Commentary

Liberty of Movement

The Centre on Human Rights is deeply concerned at the decision of the UK Government to enter a 'general reservation' to article 18 of the UNCRPD. The need for such a reservation is not supported by any concrete evidence. The proposed reservation comes six months following the UK Government's decision to withdraw its reservation to article 22 of the UNCRC relating to immigration and citizenship, indicating yet another reversal of Government policy in this regard. Indeed, the wording of the reservation being withdrawn from UNCRC is highly similar to that being proposed to article 18 of the UNCRPD:

"The United Kingdom reserves the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, and to the acquisition and possession of citizenship, as it may deem necessary from time to time." (Original reservation to Article 22 of the UNCRC)

This proposed reservation is disproportionate and without basis. The need to 'retain the right to introduce wider health screening for applicants' should not, as it appears in this instance, be directed at or associated solely with people with disabilities. This will serve only to perpetuate the misconception that Government can 'pick and choose' who should be allowed to enter and remain in the UK based on the perceived severity of a person's disability - a course of action which would be clearly discriminatory. Discrimination on the basis of disability is clearly outlawed by the UNCRPD and any reservation which attempts to allow such discrimination clearly defeats the object and purpose of the Convention and is severable from the Convention.

Education

The Centre on Human Rights is extremely disappointed at the reservation and so-called 'interpretative declaration' that is being proposed to article 24 of the UNCRPD. The UK's proposal to enter a reservation to article 24 of the UNCRPD serves only to actively maintain, and entrench, the educational disadvantages and obstacles experienced by disabled pupils in the education system, preventing them from enjoying their right to education under this Convention.

We believe that the proposed interpretative declaration is in fact a reservation since it seeks to modify the obligations of the UK under article 24. The relevant part of article 24 reads as follows:

'2. In realizing this right [to education], States Parties shall ensure that: (a) Persons with disabilities are not excluded from the a general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability; ….' (Article 24(2) UNCRPD)

The wording of article 24 is perfectly clear in our view. The phrase 'general education system' is clearly used in opposition to education settings which are provided 'on the basis of disability'. This, in a UK context, clearly means special schools. To look at it another way, if someone is sent to a particular school 'on the basis of disability', then they are clearly not being educated within the 'general education system' as that phrase is used in article 24. Indeed, the system that excludes cannot be the same system that includes or promises to include. The proposed reservation is thus not sustainable in legal terms, as an interpretation of article 24, as it defeats the object and purpose of the Convention which is inclusive in nature (or at least leaves the decision to the person with a disability).

Entering these reservations, however named, to article 24 of the UNCRPD would have the effect of retaining separate special schools for some disabled children permanently in UK. This is clearly in direct conflict with the goal of achieving a more inclusive education system for disabled children and young people. Indeed the requirement to progressively realise the right to education as specified under article 4(2) of the UNCRPD renders such a reservation unnecessary.

Equal Recognition Before the Law - Benefit Appointees

The Centre on Human Rights believes that insofar as the obligation contained in article 12 (4) applies to benefit appointees, it is in fact subject to progressive realization as specified under Article 4 (2) of the UNCRPD. The proposed reservation wrongly anticipates immediate effect against current arrangements and is thus completely unnecessary since it is effectively a statement of the UK Government's intention to progressively realise this right. We are not convinced that the proposed wording actually constitutes a reservation.

Work and Employment - Armed Forces

The reservation relating to the employment of disabled people in the Armed Forces is unnecessary given that people with disabilities are already being recruited to the Armed Forces and that people who become disabled are retained in the Armed Forces where possible.

Article 27(1) of the UNCRPD obliges States Parties to recognise the right of people with disabilities to work, on an equal basis with others. It does not require employers to amend existing methods of recruitment where a set of objective, reasonable and justifiable criteria exist. The wording is clear in intent and the reasoning is also clear. However, the implications of the reservation being subject to discussion with the European Commission are not clear and we believe that absence of such a reservation on the part of other EU member states demonstrates that it is unnecessary and disproportionate.

Conclusion

The Centre on Human Rights for People with Disabilities has welcomed the opportunity to make a submission. The Centre on Human Rights looks forward to continued dialogue on this and other issues of major significance to people with disabilities throughout Northern Ireland.

Memorandum submitted by Evan Davies, dated 23 March 2009

I wish to make a submission to the Joint Committee on Human Rights in respect of the UN Convention on the Rights of Persons with Disabilities (the UN Disability Convention).

I fully support the government's proposed reservation on special schools and colleges. My own daughter went to both special and mainstream schools so that I can speak with some personal experience. She was much, much happier and did much better educationally in her special school which was the excellent Maes Dyfan School in Barry, Vale of Glamorgan. She also went on to a special residential college which was a most wonderful experience for her. I know many other parents who support my views, including some who have transferred from mainstream to special school and colleges and vice versa. I feel strongly that pupils and students with learning disabilities and their families should have the human right of choice in this respect.

Memorandum submitted by Mrs Kim Wood, dated 24 March 2009

I wish to make a submission to the Joint Committee on Human Rights in respect of the UN Convention on the Rights of Persons with Disabilities (the UN Disability Convention).

It does not matter how inclusive and accessible mainstream schools are made, a substantial proportion of children need the dignity and expertise of a special school environment whether provided by the State (local authority), independent, voluntary or charitable sector according to need. Where a local area does not have a range of appropriate mainstream and special school provision of different kinds to meet different needs available, it is especially important that parents and family carers retain the right to be able to choose appropriate special school and other specialist provision outside their own area. Inclusion is not achieved by closing or blocking access to the special school or other specialist provision that families need.

Where I mention the right to access special schools, this should also be taken to include the right to access special college provision.

It is essential that a range of different types of provision is made available in every area, including independent living, supported living, village / intentional communities and residential care of different types to fit different needs. It is important that people with disabilities and other special needs and their families are able to choose such specialist provision outside their own local area, especially where a full range of different types of housing and care is not available locally.

I believe that the reservations / interpretive declarations are essential and should be drafted so as to ensure all the choices outlined above.

Memorandum submitted by Leonard Cheshire Disability, dated 23 March 2009

Leonard Cheshire Disability (www.LCDisability.org) exists to change attitudes to disability and to serve disabled people around the world. It has been supporting disabled people for 60 years and is active in 52 countries. The charity directly supports over 21,000 disabled people in the UK.

Campaigning for the civil and human rights of disabled people is also a key activity for us. Our breadth of experience, knowledge and constituency of disabled people gives us a unique platform from which to engage in public debate and to campaign on the social policy and civil rights issues that have an impact on disabled people.

As such, we have been following developments on the ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD) very closely. LCD is part of the UN Convention Campaign Coalition (UNCCC), an alliance of 33 disability organisations, the aim of which is to ensure that the UK ratifies the CRPD without reservations. As well as this response, we would therefore endorse the submission sent to the Committee from the UNCCC.

We are delighted to be able to submit further evidence to the Committee on this issue. This note updates our previous submission to the Committee and whilst we are pleased that further progress has been made, we believe that there are still significant issues to be resolved with regard to the UK's intended reservations and interpretative declarations.

Summary of key points:

Leonard Cheshire Disability commends the UK government on its commitment to disabled people's human rights, as evidenced by its steps towards ratifying the Convention.

We are particularly pleased at the decision to sign the optional protocol.

We are very disappointed, however, at the intention to include reservations, and do not believe that any of the intended reservations or interpretative declarations are necessary or desirable.

1. Leonard Cheshire Disability commends the UK government on its commitment to disabled people's human rights, as evidenced by its steps towards ratifying the Convention

The Convention is a vitally important document. It is the international community's response to the long history of discrimination, exclusion and dehumanisation of disabled people. The CRPD ensures that the world's 650 million disabled people enjoy the same rights and opportunities as everyone else. It covers the many areas where they have been discriminated against, including access to justice, participation in political and public life, education, employment, health, habilitation and rehabilitation as well as freedom of movement.

The Convention is the first human rights treaty of the 21st century. The UK was one of the states which recognised the need for a disability-specific human rights treaty, and played a leading role in its negotiation. The CRPD was adopted by the United Nations in December 2006, and the UK indicated its strong commitment to ratification by signing it at the first opportunity on 30th March 2007.

Leonard Cheshire Disability is delighted that the UK has now signed the optional protocol and that the decision to ratify the convention has now been taken. This is a major step forward in ensuring disabled people's rights in the UK.

2. We are particularly pleased that the UK has now signed the optional protocol

The optional protocol, giving disabled people additional rights to secure their rights under the CRPD, and to challenge discrimination when they face it, is a hugely important part of the Convention.

We are of course aware that the UK Government has not always chosen to sign up to option protocols, and are therefore delighted that the decision to do so has been taken in this case.

It is critical not only that disabled people's rights are clearly stated in the CRPD, but also that they are enforceable - the optional protocol helps ensure that this is the case. We therefore urge the government to ratify the protocol at the same time as the Convention.

3. We are very disappointed, however, at the intention to include reservations, and do not believe that any of the intended reservations or interpretative declarations are necessary or desirable.

Whilst we appreciate the UK Government's determination to ensure that it is in a position to fully implement and comply with the Convention's provisions, we have been disappointed at the length of time taken to decide to ratify. This prevented the UK from taking part in the election of experts to the UN Committee on the Rights of Persons with Disabilities, the monitoring body for the Convention.

Given the length of time taken to decide to ratify, we are very disappointed that reservations and interpretative declarations are still being proposed, particularly give that article 4.2 that allows for the progressive realisation of economic, social and cultural rights.

Our main reasons for taking this position are the following:

a) As a matter of equality, the UK should not argue that in some areas disabled citizens do not have the same rights as non-disabled ones.

b) The CRPD provides international standards; the UK should not guarantee anything less than the standards agreed by many other countries worldwide.

c) Indivisibility and interdependence of human rights mean that the full realisation of one set of rights depends on the realisation of the others; reserving thus jeopardises the realisation of the government's commitment to equality by 2025 and of its human rights agenda for all British citizens.

d) Reservations send the wrong signal that the UK anticipates that there will be violations of rights in those areas where it has reservations, and send a signal that the UK is further back than other countries in supporting disabled people's rights.

e) Withdrawing reservations is a lengthy process.

f) The elaboration of the Convention was unique in the degree of involvement of disabled persons; reserving on the areas that they identified as requiring to be addressed indicates disregard for the expertise of disabled people.

The Government has proposed reservations or interpretative declarations in the following areas:

a) Article 27: reservation in respect of service in the armed forces. The Government has proposed entering a reservation around employment within the armed forces. In principle this is to maintain the current exemption for the Armed Forces from Part 2 of the Disability Discrimination Act (DDA). Leonard Cheshire Disability does not believe, however, that this reservation is necessary. There is no legal requirement in the Convention to hire personnel unable to do the job they are recruited for; the obligation is to ensure a non-discriminatory and accessible working environment when it is reasonable to do so. As such the reservation is unnecessary and sends an unhelpful negative message about the support that those who acquire an impairment during their service can expect to receive.

b) Article 24: interpretative declaration to the effect that the UK general education system includes both mainstream and special schools. Inclusion is a general principle and a fundamental freedom, and should be aimed at in all areas of life, including education. It is clear that at present some schools are not as accessible to disabled people as they could be, either in terms of physical accessibility or indeed in terms of staff training or attitudes. This means that many parents continue to see the need for specialist education provision. Leonard Cheshire Disability would argue however that the 'progressive realisation' envisaged in the CRPD provides a golden opportunity to set a clear ambition for enhancing and improving all aspects of the accessibility and effectiveness of the mainstream education system to ensure that disabled children genuinely enjoy equal rights and access to a high quality education. Reservations in this area will send out an inappropriate message to schools that they need not actively pursue all possible steps to increase accessibility and choice for disabled pupils.

c) Article 24: reservation to the effect that disabled children's needs may best be met by educational provisions outside of their community. Leonard Cheshire Disability supports parents' right to choose where their children are educated - but at present such choice can be limited for parents of disabled children by continuing inaccessibility in mainstream schooling. We believe that the key policy direction should be to ensure that all mainstream schools are able to offer the support and accessibility that any disabled pupil would need, progressively reducing the demand for specialist provision. We are concerned that the reservation and declaration send a message that the current status quo is set in stone, undermining the drive to ensure that mainstream schooling provides the right opportunities for all disabled pupils, whatever their impairment.

d) Article 18: reservation to retain flexibility in changing immigration rules. This sends the wrong signal that the government intends to introduce legislation that could violate disabled people's human rights. This is particularly unfortunate when the government has recently dropped similar reservations to the UNCRC. Whilst the Government has argued that the reservation is necessary for very specific circumstances with regards to health screening, Leonard Cheshire Disability is concerned at the potential for this to lead to wider interpretation and potential discrimination towards disabled people within the immigration system. We welcome the proposal to keep the reservation under review, but would argue that the Government has enough powers already to ensure that the reservation is not necessary.

e) Article 12.4: reservation on benefits and capacity. The reservation relates to the safeguards required in the convention for people who require advocates or substitutes, with particular reference to the benefits system. Leonard Cheshire Disability welcomes the suggestion that the Government will work towards implementation of a system to fill this gap. We believe, however, that ratification without reservations and a commitment to progressive realisation on this particular issue would be preferable. We would argue that entering, and subsequently having to remove, a reservation is unnecessary and overcomplicated, although we commend the Government for the determination to resolve this issue.

I hope this submission is helpful. We would be very happy to discuss in more detail any of the points raised in this submission.

Memorandum submitted by Northern Ireland Human Rights Commission, dated 23 March 2009

The Northern Ireland Human Rights Commission (NIHRC) was created by Parliament to exercise the functions of a national human rights institution, which include advising on measures which ought to be taken to protect human rights, and engaging with the UN and regional human rights systems. In that context it is responding to the JCHR's call for evidence on the text of the reservations and interpretative declaration proposed in the Explanatory Memorandum issued by Government to begin the parliamentary process for ratification of the Convention on the Rights of Persons with Disabilities.[68]

The Commission welcomes the reduction in the proposed number of reservations, but regards three of the remaining four, and the proposed interpretative declaration, as undesirable. They have the potential to undermine the international consensus achieved at the time of drafting the Convention.[69] The impact of such a range of reservations will be felt well beyond the UK, principally by disabled people; they could encourage other states to restrict access to rights guaranteed by the Convention, and inhibit the interpretation of those rights by the treaty body, the UN Committee on the Rights of Persons with Disabilities.

Education (Article 24)

Under Article 24, the UK is proposing both a reservation and an interpretative declaration.[70] To deal first with the interpretative declaration, it appears to the Commission to be quite unnecessary. The Article sets out a progressively realisable right, not an immediate entitlement. The interpretative declaration has the potential to be incompatible with the Convention's object and purpose,[71] if the intention or effect is to dilute the requirement on the state to strive progressively to ensure an inclusive education system.[72] The interpretative declaration appears to have the opposite effect to the UK's stated aim in the Explanatory Memorandum:

Since the aim stated in the Explanatory Memorandum appears to accord with the requirements of Article 24 in respect of the progressively realisable right to inclusive education, the interpretative declaration is not needed in order to uphold the principle of parental choice in respect of the education of the child. Without the continued development of an inclusive mainstream sector, to which the state is apparently already committed, the parents of a disabled child are likely to find their 'choice' to be more, rather than less, limited.

The Explanatory Memorandum states that the Convention "covers some matters which, under the UK's devolution settlements, are devolved, and the Devolved Administrations have an interest…".[74] Education is one of these devolved matters. In addition the Equality Impact Assessment accompanying the Explanatory Memorandum states:

The Commission understands from discussions with the Minister for Education for Northern Ireland that she did not consider any such interpretative declaration necessary in Northern Ireland and that the Minister did not endorse its application here. This calls into question the extent to which appropriate weight has been given to the outcome of consultation with the devolved administrations in respect of such devolved matters.[76] The JCHR will wish to satisfy itself as to whether the Explanatory Memorandum properly reflects the views of the devolved administrations.

The interpretative declaration is likely to result in considerable criticism of the UK when its first report is examined by the UN Committee on the Rights of Persons with Disabilities two years after ratification. The need for inclusion of disabled children is already the subject of recommendations to the UK from another treaty body. The Committee on the Rights of the Child recommended in September 2008 that the UK

The proposed reservation is equally unnecessary.[78] Article 24(c) makes it clear that only "reasonable accommodation of the individual's requirements" must be provided, and therefore this does not give rise to an absolute right to specific provision at the local level for every individual irrespective of cost. Nevertheless, there is an onus on the state to demonstrate the steps it is taking to work towards full compliance with this progressively realisable right.

There are specific Northern Ireland concerns with regard to this reservation. The relatively small, and relatively dispersed, population in the region makes it less likely that the incidence of certain specific disabilities will be sufficient to result in specialist provision in close proximity to every child in need. This may, at times, mean that certain children currently have no option but to access specialist provision well outside of their locality, and that can mean greater difficulty and expense than would be the case in other parts of the UK. Local provision is the aim under the Convention, and there are human rights implications in distant provision (notably concerning ECHR Article 8 rights in relation to respect for family life); however, so long as reasonable adjustments are made for individual families to mitigate the impact, and so long as the overall momentum towards progressive realisation of local provision is maintained, these cases are not irreconcilable with the Convention right.

Armed forces (Article 27)

The Commission does not support a reservation in respect of employment in the armed forces,[79] and would like to see a review of the exemption in respect of the armed forces under the Disability Discrimination Act. Removal of the exemption would still permit the state to employ objective and necessary job criteria in respect of service in the armed forces, and to maintain its present practice of seeking where possible to recruit or retain people with disabilities by making reasonable adjustments.

Immigration (Article 18)

Government proposes to review this reservation twelve months after ratification to assess whether or not there is a continuing need for it in practice. Having had several years to develop its position as the Convention was in gestation, there is no need for Government to postpone the matter for a further year: it is already apparent that no reservation is required.[80]

The Explanatory Memorandum does not adequately explain the aim of this reservation.[81] It refers to the possible need to introduce wider health screening "particularly in the event of a global health emergency" if this is considered necessary for the protection of public health. That appears to confuse issues relating to health and those pertaining to disability, whereas it is obvious that global health emergencies affect people with and people without disabilities. The UK already has considerable powers under immigration rules to conduct health screening of those seeking to enter the UK in relation to communicable diseases and the protection of public health.

This proposed reservation appears to be out of step with the recent removal of the similar immigration reservation under the Convention on the Rights of the Child.[82]

No broader human rights impact assessment is provided in respect of this reservation, and its potential adverse impact in relation to ECHR Article 8 with regard to family members seeking to join those already in the UK.

Equal recognition before the law (Article 12.4)

The Commission is content for this reservation to be maintained, for the shortest possible period. It welcomes the fact that the compatibility exercise identified the absence of a review system for benefit appointees, and Government's commitment to establish such a review system in order to ensure compatibility with Article 12.4. The Commission looks forward to this reservation being lifted in the very near future.

Equality impact assessment

The Equality Impact Assessment which accompanies the Explanatory Memorandum states, in relation to the proposed reservations and interpretative declaration, that "the relevant Departments are responsible for carrying out their own equality impact assessments to support their policies".[83] The Commission considers that equality impact assessments ought to be conducted and published by the Departments and devolved administrations in respect of each of the four proposed reservations and the interpretative declaration.

Impact assessment and resources

The NIHRC is one of the organisations to be designated as an independent mechanism under Article 33 of the Convention. The Commission has made it clear in all of its discussions with Government that it cannot adequately discharge this additional role without additional resources. The Commission is therefore dismayed at the statement in the Explanatory Memorandum that any costs arising from ratification will be covered within existing funding.[84] This is repeated in the Impact Assessment: the expectation is "that any costs incurred will be met from their existing funding".[85]

The Commission's funding, resources and functions have not been subjected by Government to any audit or analysis to ascertain the feasibility of absorbing the extra workload. The Commission cannot meet this new task within existing resources without that impacting negatively on the rest of its work to protect human rights in Northern Ireland, especially given the requirement, which the Commission welcomes, to engage directly with disabled people in carrying out its Article 33 role. Obliging the Commission to set aside other priorities to fulfil this new role is an interference with its independence. The Commission would welcome a statement from the JCHR on the resourcing of the NIHRC to carry out its Article 33 role.[86]

Memorandum submitted by Rescare, dated 19 March 2009

We note your Committee's proposal to examine the Government's ratification on the UN Convention on Rights of Persons with Disabilities this Spring including its interpretive declarations and reservations particularly in respect of the Convention's Article 24: Education.

Run by families for families of children with learning disabilities and autism we fully support the Government's proposed ratification of the UN Convention with Reservations to its Article 24: Education, and, as requested, respond as follows:

The Department for Children, Schools and Families has quite rightly, we feel, indicated that there is a need to recognise that the general education system in the UK includes a range of provision, including mainstream and special schools which will require an interpretative declaration, and there will also need to be a reservation in respect of disabled children whose needs are best met through specialist provision, which may be some way from their home. We consider that the reservations are essential in meeting the needs of children and young people with learning disabilities, autism and other complex needs as an option for their parents We fully support the statement 6th May 2008 by the then Minister for the Disabled Anne McGuire on behalf of the Government as above.

Our National Petition "For Parents the Right to Choose a Special School" produced over 11,000 signatures and an Early Day Motion on our behalf by Ann Winterton MP No. 2383 "Special Schools and Parental Choice" was signed by 103 MPs.

Far from assuming a fall in the numbers of children requiring special schools recent forecasts expect increased numbers of children with learning disabilities and/or autism over the next few decades of some 3% to 5% who will surely require further developed properly resourced mainstream, special day and residential schools.

It should not be a case of one type of school versus another but a comprehensive educational service with each option having a part to play. Since when were Universities considered segregational?

The Report of the Schools Working Group 2003 said: "In the coming years we see special schools as being, along with others, at the leading edge of the government's wider education agenda. We see them participating in the full range of Government initiatives and at the forefront of the wider education agenda. We see all types of special school - maintained, non-maintained and independent - working as equal partners with LEAs, mainstream schools, and other individuals and providers within health and social services. We see more head teachers and teachers choosing to join the sector because of the opportunities that are on offer, and because the sector is one with a secure and long-term future. Special schools have much to offer the wider education, health and social services communities, and it is time for their unique contribution to be recognised and valued."

A letter received by a RESCARE supporter from David Congdon, Mencap confirmed its full support for the Government's decision to sign up to the UN Convention but with a reservation in respect of disabled children whose needs are best met through specialist provision and the right of parents to have the right to choose a special school. See Annex A.

We ask that your Committee takes an holistic approach beyond just the physical and considers positively the actual content of the Government's Reservations to Article 24: Education. It is this which opponents are apparently reluctant to give air space to in seeking carte blanche rejection of the reservations by omitting the operative information relevant to their inclusion.

Successive Government's have upheld Parental right to choose the school that they regard as most suited to serving the educational interests of their children who they know best including mainstream, special day and residential schools. We hope that your Committee will give a full and positive response to our submission and thank you for the opportunity to so present it.

Memorandum submitted by Simon Burdis, dated 19 March 2009

I wish to make a submission to the Joint Committee on Human Rights in respect of the UN Convention on the Rights of Persons with Disabilities (the UN Disability Convention).

Where I mention the right to access special schools, this should also be taken to include the right to access special college provision.

My younger brother who is deafblind and autistic, who also has learning disabilities, epilepsy, a heart condition and osteoporosis, and is also without speech or sign language; will never be able to live independently within the terms envisaged. He needs specialist, twenty-four hours a day, seven days a week care and will never be independent in the way that some extreme disability rights campaigners propose. Unfortunately, many of these extreme inclusionists simply do not understand the needs of people with complex, profound and multiple learning disabilities such as my brother.

I believe that the reservations / interpretive declarations are essential and should be drafted so as to ensure all the choices outlined above.

Memorandum submitted by the UN Convention Campaign Coalition, dated 20 March 2009

The UN Convention Campaign Coalition welcomes this further opportunity to submit written evidence to the Joint Committee on Human Rights, regarding the Government's ratification of the UN Convention on the Rights of Persons with Disabilities. We commend the Committee for investigating such an important issue, given recent debate over the intended reservations and interpretative declarations tabled by the Government. We are worried that at the time of writing the Government has made little progress in relation to the concerns we raised in our last written submission of November 2008 and hope that the Joint Committee will take this opportunity to highlight to negative effects that reservations will inevitable have on the everyday lives of disabled people and their families.

UN Convention Campaign Coalition

The UN Convention Campaign Coalition (UNCCC) was formed in December 2007 and is a coalition of thirty-three organisations who are united in their aim to ensure that the UN Convention on the Rights of Persons with Disabilities (UNCRP) is fully ratified.

Reserving on Disabled People's Rights

In our last correspondence with the JCHR in November 2008 we noted that the then Minister for Disabled People, Anne McGuire MP, was hoping that the UK would ratify the Convention by December 2008. However it seems that support for such an ambition was not shared by her colleagues in Whitehall and in the three months that followed much debate ensued over the Government's intention to table reservations on articles of the convention. The eventual task was left to her successor, Jonathan Shaw MP on 4th March 2009 to lay before parliament the Explanatory Memorandum and Command Paper for ratification of the UNCRPD. The Explanatory Memorandum contained four reservations and an interpretative declaration on articles in the convention.

The Explanatory Memorandum, in the Government's response (March 2009) to the JCHR writes that the 'Government agrees with the Committee that ratification will send a strong and positive message to all disabled people in the UK and abroad - and to those who are not disabled - that the Government takes equality and the protection of human rights for disabled people seriously.' In tabling the reservations and interpretative declaration the UNCCC believe that the Government has indeed made a strong statement about their position in relation to the equal rights, status and citizenship of disabled people. In tabling reservations the Government has failed in its commitment to ensure all disabled people enjoy the same human rights as any other citizens.

The Armed Forces (Article 27)

The Explanatory Memorandum has outlined that the Government will reserve on Article 27 of the convention as service in the armed forces is exempt from the employment provisions under the Disability Discrimination Act (DDA). The Government claims that it is reserving on this article because it needs to ensure that we have the military personnel 'to meet a worldwide liability to deploy' and to ensure that 'military health and fitness remain matters for Ministry of Defence Ministers based on military advice, not for the courts'.

The UNCCC notes that the armed forces have already publicly acknowledged that their main reservation with the convention is that they should not be obliged to recruit disabled people. However, the armed forces are already retaining service men and women who become disabled when on active service. Furthermore neither the DDA nor the UNCRPD places a duty on any employer to employ an unqualified disabled person. The obligation is to ensure a non-discriminatory and accessible working environment when it is reasonable so to do. We do not think that a war zone would be a reasonable environment for a blind or deaf person (for example). In this sense the reservation is unnecessary and as such stands as a symbolic statement on the rights of disabled people.

Immigration & Public Health (Article 18)

The Government has tabled a general reservation on article 18, which the Government argues is in order to retain the right to apply immigration rules and to retain the right to introduce wider health screening for applicants entering or seeking to remain in the UK. The reservation will allow the Government to further refuse entry to disabled persons on the grounds of infectious disease. They claim that this is necessary in order to retain the right to apply immigration rules and to retain the right to introduce wider health screening for applicants entering or seeking to remain in the UK, if this is considered necessary to protect public health. The Explanatory Memorandum for this reservation notes that it will be subject to review twelve months after the UK has ratified the convention in order to assess whether there is a continued need for it in practice.

The UNCCC believes that the Government are conflating the issues of disability and disease. We note that the Government already has the power to quarantine people and transportation if there is evidence of infectious disease. As such UNCCC believes that this reservation is unnecessary, confusing as it conflates disability and disease and recommends that the Government remove this tabled reservation, rather than reviewing it twelve months after ratification. Moreover the Government has previously indicated to the UNCCC that the reservation would be made on public health grounds, however we are concerned that the wording of the reservation will be interpreted as relating to all immigration and asylum procedures. The UNCCC furthermore notes that the wording of this reservation is similar to that the reservation the Government made to the UN Convention on the Rights of the Child (UNCRC). This reservation has recently been withdrawn by the Government in September 2008. To propose a similar reservation once again seems to be contradictory. Our main area of concern is that if the tabled reservation remains it may be used over and above measures non-disabled people are subjected to, to refuse entry to disabled people or reject disabled asylum seekers.

Benefits & Guardianship (Article 12.4)

The Government have tabled a proposed reservation in relation to article 12.4, which concerns safeguards for the exercise of substituted decision-making. The article includes a requirement for regular review by a competent, independent and impartial authority or judicial body, however the Government argues that there is currently no review system for Department for Work and Pensions (DWP) appointees. These appointees refer to people who are appointed to claim and collect benefits on behalf of another person due to that person's lack of physical or mental capacity on behalf of some half million claimants currently.

Previously UNCCC argued that the DWP should focus on changing its procedures to accommodate the independent review process, rather than propose this new reservation. We therefore welcome the Government's Explanatory mechanism, which notes that the DWP is 'actively working towards a proportionate system of review to address this issue'. UNCCC believes that this renders the reservation unnecessary and without meaning, as in our view as it is clearly a statement of the Government's intention to progressively realise this right. In light of this we believe that the reservation should be removed to avoid further confusion and to ensure disabled people will realise their rights under this article.

Inclusive Education (Article 24)

The Government has outlined that it is making an interpretative declaration on article 24 of the UNCRPD which relates to inclusive education for disabled children and young people. An interpretative declaration is proposed to make clear that the UK general education system includes both mainstream and special schools, thereby clarifying how the UK Government interpret the convention. This will make it clear that special schools are considered part of the UK's general education system and that parents have the right to express a preference for a special school. A reservation is proposed to allow for circumstances where disabled children's needs may be best met through specialist provision, which may be some way from their home; so they will need to be educated outside their local community. This also maintains parental choice for schools outside the local community.

The UNCCC believes that the Convention provides an opportunity to take proactive steps to improve access to mainstream education so parents have a genuine choice in schooling their child.

We are concerned that the government is not taking a balanced approach in its promotion of the principle of parental choice and is in danger of completely ignoring the interests of disabled children. Parental choice needs to be balanced with the potentially damaging effects of disabled children being educated away from their local communities and the rights of children to family life.

The Council for Disabled Children in their recent policy document on Inclusion make clear that the entire voluntary sector supports a move towards developing more inclusive provision. UNCCC do not regard segregation and separation in special settings inclusion. We believe that in interpreting inclusion in this way the Government is at risk of debasing the concept and further confusing authorities. It is clear that many more parents of disabled children would choose a mainstream school if they were confident that it could meet their child's needs. Whilst mainstream schools have only a poorly enforced duty to admit disabled pupils and have no clear financial (or other) incentive or encouragement to develop inclusive practice, the situation will not improve. UNCCC is aware of evidence that demonstrates that an increasing number of mainstream schools are including a widening diversity of disabled children when the ethos and leadership are there. The reservation acts as a significant disincentive for schools to pursue inclusion.

In this sense ratifying the Convention would help increase inclusive options and help rather than hinder the Government's ability to comply with its own policy on parental choice. This is supported by a 2006 Ofsted report looking at the impact on pupil attainment in different educational settings, which concluded that disabled children do better in resourced mainstream schools compared to any other setting, further evidencing the benefits of an inclusive approach.

Furthermore the UNCCC is concerned that by putting an interpretative declaration on article 24, the Government will be undermining its previous commitments towards inclusive education. Like most countries in the world the UK supports the Salamanca Statement. The statement, drawn up by a UNESCO world conference held in Salamanca in Spain in 1994, called upon all Governments to 'adopt as a matter of law or policy the principle of inclusive education, enrolling all children in regular schools, unless there are compelling reasons for doing otherwise'. Similarly, Section 316 of the Special Educational Needs and Disability Act (SENDA) 2001, the Statutory Guidance issued in 2001 on Inclusive Schooling and the SEN Strategy 2004 are all underpinned by a principle of inclusive education.

Other developed countries with similar education infrastructures to the UK have ratified Article 24 in full, including Australia, New Zealand, Austria, Germany Spain and Sweden. The UK has to date provided significant leadership on human rights on the international stage and the UNCCC believe that entering an interpretative declaration and reservation on article 24 risks undermining this leadership, reputation and will consequently have a negative impact on ability of disabled children and young people to enjoy other rights under the convention.

Regression Not Progression

The UNCCC are adamant that reserving or tabling an interpretative declaration on any part of the Convention is not compatible with the UK Government's commitment of achieving disability equality by 2025 and their longstanding commitments to the individual human rights of all their citizens. By ratifying the Convention with reservations the UK government are declaring its willingness to accept less than the agreed international standard for the protection of the human rights of disabled people in the UK. In tabling reservations and an interpretative declaration, the implementation of the Convention in protecting the human rights of disabled people will not apply in its entirety to the UK.

In its response to the first JCHR report, the Government writes that 'early ratification should take precedence over continuing to debate the small number of reservations and interpretative declarations which remain necessary.' This they say is a view which has been expressed by the Disability Committee of the Equality and Human Rights Commission. UNCCC believe that the way in which the Government has dismissed these 'small number of reservations and interpretative declarations' demonstrates a fundamental ignorance of the life chances of disabled people and worrying disregard for disabled people's equal citizenship in the UK. The elaboration of this Convention was unique in having disabled people from all over the world fully involved in the process. As a result, the Convention outlines precisely those areas that we know, from our direct experience, where we need protection from violations.

Reserving on any of these areas indicates a disregard of the rights, expertise and views of disabled people. Moreover the Government's insistence to press ahead with the ratification whilst upholding the aforementioned reservations and interpretative declaration demonstrates their intent to ignore the concerns raised previously by the Joint Committee on Human Rights in November 2008, the 50,000 UK residents who signed the UNCCC petition calling for ratification without reservation and advocacy from Disabled People's Organisations. Interestingly, the Equality & Human Rights Commission (EHRC) have put out a statement making a very similar argument about why these reservations are unnecessary and go against the aspirational spirit of the Convention.

Human Rights are universal and indivisible. Ratification of this convention, whilst demanding duties and obligations on Member States, does recognise the need for progressive implementation. In the UK we already have the DDA and the Human Rights Act to support our rights as well as obligations under all the other international human rights instruments. It is our belief that reservations are an indication in themselves that the UK is prepared to continue to violate disabled people's rights in certain areas of our lives. Whilst the Government asserts in its response that 'entering reservations and/or interpretative declarations does not of itself imply any fundamental lack of respect for human rights', UNCCC believes that it does represent a significant lack of ambition for improving the life chances of disabled people and meeting the disability equality target if 2025.

The UNCCC believes that the measures for progressive realisation as set out in the UNCRPD are sufficient for the Government to remove the proposed reservations and interpretative declaration. For those of us who are committed to the full enjoyment of human rights for disabled people, reservations break the universality and indivisibility of the Convention. As supporters of human rights, the UK should not be seeking to say that they only support certain rights and not others.

Delayed Ratification

As previously noted, the UNCCC are concerned about the delay in moving towards the full ratification of the UNCRPD. The UK Government had been very proactive in the elaboration of the Convention, had taken a leading role within the Europe delegation to ensure implementation and had at all times listened to and promoted the views and expertise of disabled people. UNCCC is particularly saddened that the UK has taken so long to table the ratification as the UK has now missed the opportunity to be part of the Committee on the Rights of Persons with Disabilities who will oversee implementation of the Convention at a Conference of State Parties.

For a state which was so well represented during the elaboration process, we are disheartened that the UK is missing out on a real opportunity to take a leading role in monitoring the implementation of the convention. Like all UN human rights instruments, the UNCRPD is not just a legal tool; it sets out an international cross-cultural moral standard for the treatment of disabled people. It effectively articulates a moral code of behaviour by which states, Governments, public bodies and all human beings should follow toward disabled people. In delaying the ratification of the Convention and tabling the proposed reservations and interpretative declaration the Government appears to the international community to be faltering at this important moment of equal human rights for disabled people.

Disabled People need this Convention

As we have noted previously, despite the implementation of the Disability Discrimination Act, the Human Rights Act and the Improving the Life Chances of Disabled People report, disabled people's rights are still routinely and systematically violated. This situation is set to become more critical given the changing demographics of Britain. Advances in medical science and technology mean that many more disabled children born with complex impairments are reaching adulthood. At the other end of the age spectrum people are living longer, often with age-associated impairments. The population projections for 2031 predict that 15.3 million of the population will be over 65 (compared with 11.4 million in 2006). As the proportion of the UK population living with an impairment or long-term health condition increases the need to secure a level playing field for this growing group of citizens becomes increasingly urgent.

The Convention is the first human rights instrument to be absolutely clear about disabled people's right to be treated as full and equal human beings. Although disabled people should be considered as fully human under the pre-existing conventions, we were not specifically mentioned (except in the Convention on the Rights of the Child) and therefore our rights have historically been ignored, marginalised and abused. The Convention can be used at all levels as further evidence that disabled people must be included in the rights agenda - and shows exactly what that means for local and national statutory authorities. Moreover it can be used for responses to local and national policies that affect disabled people. This is extremely pertinent given the UN Committee on the Rights of the Child's recent (2008) criticism in its concluding observation of the Government's lack of any 'comprehensive national strategy for the inclusion of children with disabilities (sic) into society'.

Local authorities, Government departments, NHS Trusts, and all public bodies can adopt it as part of their Disability Equality Schemes and as the basis of their Disability Equality duty. It can be used as evidence to prove a violation in any case taken in relation to either the DDA or the Human Rights Act - and, for instance, in arguments with the Crown Prosecution Service it they consider it impossible to take a case because of the level of someone's impairment. Because the Convention goes into the details of what makes effective human rights protection for disabled people, it is an excellent support to training both non-disabled and disabled people in our rights and equality. For the first time, an international document has clearly spelt out our humanity and recognises, officially, that disability is a social response not a personal fault. Furthermore it ensures that disabled people another avenue of redress if their rights are being breached in the UK. On this point UNCCC have welcomed the signing of the optional protocol and are encouraged by the Government's proposal to ratify it.

Given the relatively short time of the tabling of the proposal to ratify the convention and the ratification itself, UNCCC urge the JCHR to take immediate action by interrogating further the Government's proposed reservations and interpretative declarations with the intension to remove them.

Should the JCHR require any further information relating to the points raised by the UNCCC, we would be more than willing to provide either written or oral evidence.

This submission has been agreed by all members of the UNCCC.

68 The Explanatory Memorandum of 3 March 2009, and associated documents, are available at: http://www.officefordisability.gov.uk/working/theunconvention.asp. Back

69 The NIHRC regrets that despite a number of requests that it be consulted as to the plans in respect of ratification, not least because of its designated role under Article 33(2), its first opportunity to consider the content of the reservations was upon publication of the Explanatory Memorandum. Back

70 Interpretative Declaration: "The General Education System in the UK includes mainstream, and special schools, which the UK Government understands is allowed under the Convention." Reservation: "The United Kingdom reserves the right for disabled children to be educated outside of their local community where more appropriate education is available elsewhere. Nevertheless, parents of disabled children have the same opportunity as other parents to state a preference for the school at which they wish their child to be educated." Back

71 Article 46(1) of the Convention, restating the rule from Article 19 of the Vienna Convention on the Law of Treaties, states: "Reservations incompatible with the object and purpose of the present Convention shall not be permitted." In addition, "Where the effect of a declarative statement relating to a Convention is to exclude or modify the legal effect of the obligations in the Convention, it is considered to be a reservation, regardless of the label adopted by the state" (see JCHR Report on the UN Convention on the Rights of Persons with Disabilities, 4 January 2009, footnote 5). The Joint Committee earlier found that one of the UK reservations to the Convention on the Rights of the Child - the immigration reservation - "read literally would allow the Government to disapply the CRC rights so far as they relate to people who are subject to immigration control. In our view, that would be incompatible with the object and purposes of the CRC, and so would not constitute a valid reservation" (Seventeenth Report of the JCHR on the Nationality, Immigration and Asylum Bill at para.17, 21 June 2002). This reservation has now been removed, see note 15 below. Back

72 Article 24 of the Convention states: "In realising this right, states parties shall ensure that… [p]ersons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability; [p]ersons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live." Back

73 This policy commitment also has a legislative basis; see e.g. the Special Educational Needs and Disability (Northern Ireland) Order 2005 (SENDO). It increased the rights of children with special educational needs to attend mainstream schools and introduced disability discrimination laws for the whole education system in Northern Ireland for the first time. The SENDO presumption is for attendance at mainstream school subject to parental wishes and the efficient education of other pupils. The interpretative declaration tends to undermine that approach and calls into question the long-term policy commitment under SENDO. Back

74 See para 6 Back

75 See para 12, Equality Impact Statement. The Explanatory Memorandum also states: "In working towards ratification, Departments and the [devolved administrations] have examined their legislation, policies, practices and procedures, notwithstanding the fact that the UK already has robust anti-discrimination and human rights legislation, to ensure that the UK is compliant" (para 12). Back

76 The Minister for Disabled People told the JCHR on 18 November 2008: "It is for Departments to determine, just in the same way it is for devolved administrations to determine whether or not they have reservations"; see response to Q.38. Back

77 At para 67(b). The Committee also expressed concern that "there is no comprehensive national strategy for the inclusion of children with disabilities into society" (para 52(a)). Back

78 The terms of the reservation are unusual and the language is inappropriate: "The United Kingdom reserves the right for disabled children [emphasis added] to be educated outside of their local community where more appropriate education is available elsewhere. Nevertheless, parents of disabled children have the same opportunity as other parents to state a preference for the school at which they wish their child to be educated." The Government is here reserving a position to itself, not granting a right to disabled children. In addition, the opportunity for parents to state a preference in relation to the school they wish their child to attend already exists, independently of any treaty, and does not need to be affirmed least of all by way of a reservation. Back