Examination of Witnesses (Questions 1-19)
JONATHAN SHAW,
MR RICHARD
TIMM AND
MS SIMMY
VIINIKKA
18 NOVEMBER 2008
Q1 Chairman: Good afternoon, welcome
to our evidence session on the UN Convention on the Rights of
People with Disabilities. We have Jonathan Shaw, MP, who is the
Minister for Disabled People, and he is joined by Richard Timm,
the Deputy Director, Civil and Human Rights Division in the Office
for Disability issues in the Department for Work and Pensions,
and Ms Simmy Viinikka, who is the Senior Legal Officer in DWP
Legal Services. Welcome to all of you. Jonathan, do you want to
make any opening remarks?
Jonathan Shaw: Chairman, thank
you very much, I would like to make an opening remark. We very
much welcome the Committee's interest in the UN Convention, and
this opportunity to talk about the Convention and where we are
in terms of progress towards ratification. Perhaps it is helpful
if I address what is probably the most pressing issue first: will
we ratify it by the end of this year? The short answer is that
I regret to say "no". Since the day that we signed the
Convention in March 2007, the Government's intention has been
to achieve ratification at the very earliest opportunity. In saying
that, my predecessor Anne McGuire set an enormously challenging
task when we said we wanted to ratify it by the end of 2008. I
say that because the average length of time to ratify such conventions
is more like four years. We have made good progress, however,
and we will have the opportunity to explore this and what remains
to be done during the course of our discussion. Given the steps
that remain, my ambition is to ratify in the spring of 2009. I
know that this will come as a disappointment to disabled people
and their organisations, who have been frustrated at the pace
of the ratification process has not been quicker; and indeed it
may have appeared that it might not happen at all. Therefore,
I would like to make very clear both my personal commitment to
the Convention and confirm that whilst it is not achievable this
year, it does remain the Government's intention to ratify. I know
there will also be frustrations about the terms on which we ratify,
and a sense that if we do so with reservations or interpretive
declarations, that this is an indication of failure of commitments
to the principles of the Convention and that is absolutely not
the case. The Committee will know that the MoD are considering
a reservation in respect of armed services. The Home Office is
considering another reservation in respect of immigration. DCSF
are considering a declaration and a reservation in respect of
education. In addition, Chairman, the DWP has identified an issue
in respect of benefit appointees, and is considering a reservation
of Article 12(4). This is a small package of possibilities that
will need to be agreed collectively across Government. If there
are reservations, when we ratify this it does not imply any lack
of respect for human rights for disabled people. The Government
has always recognised that the Convention is a powerful and compelling
statement for disabled people both in the United Kingdom and abroad
to be able to enjoy the same human rights as anyone else. That
is why we signed the Convention and will ratify it.
Q2 Chairman: Thank you for that.
We will be asking you some more detailed questions about the timetable
and the questions of reservations, and we will deal with declarations
later on. You have focused on the downside in a way. Can we start
on the more positive side and ask you how you think people will
benefit from the ratification?
Jonathan Shaw: The Convention,
as you will all know, Chairman, is a very detailed document, and
I would like to take the opportunity to pay tribute to my officials
and my predecessor for the hard work they have undertaken in order
to boil down to a few reservations. If you look at the detail
of the Convention, it covers all areas, and the Government is
content that our existing policy and legislation fits in with
that Convention. I suppose it is a demonstration that the Government
is committed to working at home and abroad to ensure that human
rights are enjoyed by all people, all disabled people. Importantly
as well, the Convention will provide an important part of the
analysis and benchmarking as we develop our policies going into
the future. I think it also enables us to reflect, with some justification,
on the progress that we have made so far in areas such as housing,
lifetime homes, access to education, particularly higher education,
and our recent policy on our independent living strategy, and
also the Welfare to Work Programme.
Q3 Chairman: Can we look at some
of the problems now! The UK has been closely involved in the negotiation
of the convention. There was a great trumpeting of the fact that
we were signatories to the Convention on day one.
Jonathan Shaw: Yes.
Q4 Chairman: Yet it was only more
than a year later in the Government's response to our report on
adults with learning disabilities that the question of reservation
was first hinted at. Why has it taken a year to get to that position,
bearing in mind how much work had been done earlier in terms of
negotiating the Convention? You must have known—not you
personally but your predecessors, or the department must have
known at that stage what the concerns were, having signed the
thing and negotiated it. Why was it over a year before you actually
came forward and said there were these problems?
Jonathan Shaw: First, I think
the reservations for the MoD will not come as any surprise to
the Committee given it does not have to comply with the DBA. In
terms of signing the Convention and the journey towards ratification
it has required an enormous amount of work. In my predecessor's
letter to you in May she referred to a number of areas, for example
cultural services in independent living that there might be reservations
on; but you have not heard me refer to those in my opening statement.
It is the job of work we have been getting on with. Colleagues
from the Office of Disability Issues and indeed my predecessor
Anne McGuire worked very hard across all Government; and when
one looks at all of the articles that Government departments need
to consider, and then seeking clearance and agreement with colleagues,
it is a huge task. I think Anne did give an indication of areas
we were working on, and of course during those discussions other
areas have come up. We take these conventions extremely seriously
and go through the detail and drill down, and things come up as
well, and obviously that requires discussion and legal advice.
I have referred to benefit appointees and power of attorney.
Q5 Chairman: Why was this work not
done at the time of negotiation of the Convention, before signature?
Jonathan Shaw: We sign up to the
principles of a convention and then it is for state signatories
to go through the detail. Obviously, before the Convention is
ratified it is subject to scrutiny, and it will be subject to
scrutiny by both these Houses.
Q6 Chairman: It is obviously disappointing
to hear about the delay. What is your intention? Do you think
it is better to try and get rid of all reservations so far as
you can, which may delay ratification; or to ratify the reservations
first and then work through the reservations, as has happened
with the Convention of for Rights of the Child for which the Home
Office is now going to lift the reservation?
Jonathan Shaw: There are opposing
views on this and I am aware of that, but I believe the advice
from the Commission on Human Rights said to us that they thought
we should ratify obviously with reservations. That is our intention.
Obviously, we want there to be as few as possible and that is
why we have undertaken the work that we have.
Q7 Chairman: What is your deadline
now for ratifying?
Jonathan Shaw: Chairman, you will
be aware that there will be important debates and scrutiny within
Parliament, and we are aiming to get the Convention ratified by
spring. I cannot give you an exact date of spring, but that is
what we are aiming for.
Q8 Chairman: Before the Easter recess?
Jonathan Shaw: In spring, Chairman.
Q9 Dr Harris: Would July count as
spring?
Jonathan Shaw: I would not say
July would count as spring, Dr Harris! Blazing June—that
does not give a spring descriptive!
Q10 Chairman: I think we would be
extremely concerned to hear it was not to be ratified by the Easter
recess, which is very late spring really!
Jonathan Shaw: Your concern is
noted, Chairman.
Q11 Chairman: We would probably expect
to see you again, if you are still in the same position bearing
in mind re-shuffles and so on pretty soon after the Easter recess,
if there was not ratification by Easter.
Jonathan Shaw: Thank you Chairman.
Q12 Lord Lester of Herne Hill: Would
you ask your officials to brief you on what happened in 1974 to
1976, when I was adviser to the Government and we ratified both
the UN international covenant on civil and political rights—a
vast document—and the UN Convention on economic, social
and cultural rights within two years from scratch—from scratch?
Those were massive documents, and I do not understand at all why
it is not possible to do this comfortably within two years on
a convention that is already covered by domestic law quite admirably.
Could you explain to me what it is that is causing this extraordinary
slowness in the process, because I do not understand it, having
been involved previously, as I say, more than thirty years ago?
I do not understand this four years thing or any other reason
for slowness. What is the real explanation?
Jonathan Shaw: The explanation,
Lord Lester, is as I have set out to the Committee in answering
the Chairman's first questions. We have undertaken this process
of discussion within the Government across all the different departments.
You will know better than I, but in terms of what sets us apart
from other conventions is that it is practical and systematic
barriers that we have to address that stand in the way of disabled
people's enjoyment to equal human rights, and so we have to look
at how this applies across the whole of the education sector,
how it applies across all of the health sector, the employment
sector, everything that is part and parcel of public policy and
delivery. Obviously, departments have to consider those very carefully.
I guess, if we are to make a comparison of some countries—I
think Jamaica ratified on the very day of their signature to the
Convention, and other countries—the Scandinavian countries—have
signalled that they will take quite a lot longer than ourselves.
Across the board it varies. The explanation that I have given
to you was the one given to me, so I am appreciative of your advice
and at the appropriate moment I will ask my officials.
Q13 Lord Lester of Herne Hill: I
want to ask you about involvement with disabled communities in
considering ratification, reservations and so on. We know that
the Equality Human Rights Commission has been consulted confidentially
by your Department about these matters. We know that the Commission
has complained that they are inhibited by the confidentiality
of that process from really being effective in dealing with it.
That has given some cause for concern to us, as it has to the
Commission. Leaving aside the Commission itself, and what you
say about that, what steps are you now taking to be more transparent,
or to be in any sense transparent about exactly what you are proposing
with those who are most affected by what you are doing, namely
the disabled in this country?
Jonathan Shaw: We have engaged
with disabled people and their representatives. I have heard the
criticism that it may not have been as much as people are accustomed
to, but obviously we have Equality 2025, which we established
as part of our commitment to ensuring that disability issues are
addressed across Government; and that body, which is made up of
disabled people, have been providing advice to Government departments,
as have my own officials in the Office of Disability Issues. Government
departments need to have some degree of confidence that their
discussions are confidential in order for them to discuss policy
options; that is the normal custom and practice. The job of work
has been one where we have had discussions internally in order
that we can then provide the Committee, Parliament and the wider
public with our position going forward. That will then of course
be subject to parliamentary scrutiny and doubtless civic society
will have discussions and input into where we have got to. I feel
it is reasonable for me to emphasise that the number of reservations
on one interpretation is a modest amount when considering all
of the articles within the convention.
Q14 Lord Lester of Herne Hill: I
understand that and we will come to that later, but I do not understand
when you talk about discussions with the Equality and Human Rights
Commission being internally. The Commission is an independent
watchdog of human rights and surely they should be uninhibited
in being able publicly to criticise policy developments that they
disagree with? They are concerned about that and I would like
to ask you whether you share that concern?
Jonathan Shaw: I am sorry if I
was inadvertently mixing up Equality 2025 with the Commission—that
was not my intention. Can I ask Mr Timm to provide a bit more
clarity on the specific role of advice and the Commission?
Mr Timm: As the Minister has said,
we are working within Government to try to remove the need for
any reservations and interpretive declarations, and those discussions
have been in confidence within Government. As you rightly say,
because we have the Equality and Human Rights Commission as an
independent watchdog—for want of a better phrase, we did
want to talk to the Commission, but when I approached the Commission
it was on the basis that we were talking in confidence, and that
enabled me to explain to them what the detail of the concerns
of various departments were. It enabled them to have a think about
it and come back with some ideas that I was then able to use.
As far as I was concerned, it was part of the process of working
through the list of potential reservations and declarations. That
was why, when I first approached the Commission, it was on the
basis of confidentiality.
Q15 Lord Lester of Herne Hill: I
do not understand the need for secrecy! We are not talking about
terrorism or nuclear secrets; we are talking about whether a convention
creates a particular practical problem so serious that we need
to enter into a reservation of the kind the European Commission
and others have not done. Why is that a matter of secrecy? All
you have to do is publish a paper that highlights the problem,
and then ask everyone, including the disabled, what their responses
are, in advance of your taking decisions.
Jonathan Shaw: As I said to you,
Lord Lester, the convention covers every aspect of Government
policy, and Government departments whose decision it is to sign
up or to say whether they want interpretations or reservations
as it is also that of the devolved administrations as well. So
in order for us to reach an agreed position, and where there might
be differences in a discussion, we develop that policy internally,
in the say way we might develop a health policy or an education
policy internally before providing our thinking to the public.
That is where we are now, as we are on the cusp of entering into
the parliamentary scrutiny.
Q16 Chairman: It is not exactly open
government, is it? Look, for this session we pulled out the evidence
and lots of disabled organisations have written to me with their
views about what they think and the reasons for their reservations
and what their answers to them are. It may well be that if you
actually got involved with consulting organisations directly a
lot of your fears and concerns would have been dealt with reasonably
easily and quickly by their responses, saying X, Y and Z—this
clearly is misinterpretation, or this is what we can and cannot
do. A lot of the problems you have spent 18 to 24 months now wrestling
with would have gone away a lot earlier. As Lord Lester says,
this is not a huge state secret. What is the problem in saying,
"Look, we have got a problem and we will come to this in
more detail later on; the Army says they want to make sure they
do not have people who are blind so they go on the front-line—what
is your answer to that?" Well, that is pretty well the answer.
It is self-evident. The MoD spent the best part of two years arguing
about it.
Jonathan Shaw: What I want to
say to you, Chairman, is that we need to look beyond the boundaries
of Whitehall, and that of England.
Q17 Chairman: That is exactly what
I am saying to you. Why have you not asked the disabled organisations
their views on what your problems are?
Jonathan Shaw: We have had discussions
with disabled organisations, both my predecessor and I; and they
have made clear their views on a number of the points you have
just made. However, in order to develop policy, particularly as
we live in a devolved world where there are administrations of
other political persuasions, it is important that we are able
to develop policy. Each of the parties involved in that can have
a degree of confidence that that discussion is confidential. Otherwise,
one could envisage a whole series of rather unpleasant scenes
within which the matters that we are focusing on could be delayed
somewhat. As I say, we have arrived at a position where there
are very few reservations. That has been our thinking and that
is the way we have approached it.
Q18 Chairman: That is Alice in Wonderland,
is it not?
Jonathan Shaw: I do not agree.
Q19 Chairman: It has been delayed
for the best part of two years through this process, whereas you
might have had the answers much more quickly. I am not saying
you have to tell us exactly what you talked about with the Scottish
administration or the Welsh administration, that is fine; but
if you say, "We have got a problem with this particular thing;
this is what the problem is; is there an answer to it?" you
would have got the answer in a matter of weeks, like we have when
we put out our call for evidence—or an answer.
Jonathan Shaw: We did. We have
received advice, and now what we have come forward with will be
subject to parliamentary scrutiny and scrutiny and debate in wider
society.
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