The UN Convention on the Rights of Persons with Disabilities - Human Rights Joint Committee Contents

Examination of Witnesses (Questions 20-39)


18 NOVEMBER 2008

  Q20  Lord Lester of Herne Hill: What I do not understand—if I may—is that in the Governance of Britain Green Paper for which the Prime Minister is responsible, there was a lot about the importance of a more transparent and democratic system for scrutinising treaties. I do not understand the fear within Whitehall apparently that if you now come out with what you are proposing it will affect our rights of course and the extent to which the rights conferred by the Convention to be enjoyed by we, the people—that is what it is about. I do not understand why you do not consult "we the people" about that as well as the devolved administrations in Scotland, Wales and Northern Ireland. Surely they are the prime people that you should now be consulting at an early stage?

  Jonathan Shaw: We have arrived at our decision on the interpretations and the reservations through that discussion with colleagues in those administrations. We have had discussions—it is not fair to say that we have had no discussions with disabled people or their organisations; we have had that, and we have received the advice from the Commission and the advice from Equality 2025, a body that we have set up of disabled people to provide us with that advice. It is not fair to say that we have operated in a silo, divorced of any discussion with disabled people or their organisations. What I attempted to do in a candid way is to provide the Committee with the process that we have gone through in order to arrive at where we have. It is not fair to characteriser this that we have had no discussion with disabled people.

  Q21  Lord Dubs: There are discussions going on between Westminster and the devolved administrations all the time on a whole range of issues.

  Jonathan Shaw: there are.

  Q22  Lord Dubs: I am not aware that they are all couched in this secrecy, and quite a few of them can be done openly. I do not understand the need, otherwise a lot of our relations with devolved administrations would have to be altered, would they not?

  Jonathan Shaw: I had some experience of working with devolved administrations in my previous job, and some of those discussions were below the line in order to develop joint thinking in order that both sides were happy and to avoid a public dispute that could then lead to very firm positions, opposite positions, and then the goals that we seek to achieve were reduced. So it operates at different levels. I repeat, it is not reasonable to say or a fair reflection on the way that we have carried out this process to say that we have not had discussions or sought the advice of disabled people and their organisations.

  Q23  Lord Dubs: I think you said a few minutes ago that you would be ready in the spring to publish.

  Jonathan Shaw: Yes.

  Q24  Lord Dubs: Would there be an advantage in publishing in draft what you have in mind now, so that people, organisations and parliamentarians can all look at this and consider what it is you are doing rather than simply producing it at the lat minute when it has all been finalised. Surely, it would be in keeping with the policy of publishing draft bills and so on for your reservations to be published in draft form now?

  Mr Timm: We hope to publish an explanatory memorandum, which will provide an opportunity for each of the departments to give their detailed reasoning as to why we want the interpretations or the reservations ahead of parliamentary scrutiny, Lord Dubs.

  Q25  Chairman: Presumably you are only going to publish an explanatory note at the same time you publish the ratification?

  Jonathan Shaw: That would be my understanding.

  Q26  Chairman: To come back to Lord Dubs's question, why can you not—if, like we do for all sorts—the Home Office can publish the Immigration Bill in draft in advance, why can you not publish your reservations in advance so that people can think about it beforehand?

  Jonathan Shaw: These reservations are where government departments have arrived at through this process and they will be subject to parliamentary scrutiny with a detailed explanatory memorandum, but I will reflect on the point that you have made, Chairman.

  Q27  Lord Lester of Herne Hill: Is that what you mean when you say, "subject to parliamentary scrutiny"? Parliament has no power, does it? It is not like a bill.

  Jonathan Shaw: No.

  Q28  Lord Lester of Herne Hill: If you, in exercising your prerogative powers, decide on the terms of ratification and reservations and so on, all that Parliament can do is to express its views, but you have in the end absolute power. Is that not therefore why we need to know what you are considering at an early stage to try to persuade you that some of what you are thinking might be altered?

  Jonathan Shaw: Hopefully that is part of this process, Lord Lester, and obviously we will come on to discussing the few reservations and the interpretation that there is. Obviously, I will have to justify the Government's position, and there is a whole series of committee stages that we will go through.

  Q29  Lord Morris of Handsworth: I have a general observation from what you have said The Committee, and indeed those with disability who would benefit from ratification, will draw some conclusion; and from what you have said you are leaving a conclusion behind that it is either lack of commitment on the part of the Government or lack of leadership. Which is it?

  Jonathan Shaw: I do not think that is fair at all, Lord Morris. I refer to a number of the practical steps that this government has undertaken to improve the lives of disabled people, and we have also set out our ambition of equality for disabled people into the future. Signing the Convention we take extremely seriously, and when you look at the various articles and measure that against the policies and the commitment and the money ...

  Q30  Lord Morris of Handsworth: What is important today is not so much what you fail to have done in the past but those with disability and the Commission will be interested in the future, the commitments that you can offer as to what you will now do and the Department will do as of today's hearing.

  Jonathan Shaw: As I keep saying, I am happy to hold my hand up, and where we have—you say "failed"—and perhaps we have not achieved what we might want to in certain aspects of policy, but I think we have achieved a great deal, not least employment levels, which are a 10% increase under this Government with programmes such as Access to Work and Pathways to Work, under which many hundreds of millions of pounds are put into. That is a statement of our commitment. There are further resources now and going forward into the future, as you said.

  Q31  Mr Timpson: Can I just pick up on the time when you say ratification will take place and try to understand a bit more about trying to get some transparency into the reasons why we have to wait even longer than we originally anticipated! You have spoken about trying to put together advice and also having discussions, and I see those as two very different things—seeking advice from people and having discussions with people. When you spoke about advice and told us about the Commission and Equality 2025, are you still seeking advice, or have you sought advice? Have you had further meetings to seek advice? Where are you, so we understand why we have this further delay?

  Jonathan Shaw: The delay is because we had those detailed discussions with colleagues across departments and devolved administrations, and we have been working through areas of policy. My predecessor, Anne McGuire, worked tremendously hard and was absolutely committed to this Convention and signalled to the Committee in her letter in May that there were areas where we might seek reservations on cultural services, for example, and independent living as another example. I am pleased to say that we have worked through those and there are not reservations on that, so that is an example of some of the work that we are undertaking. We want to see as few reservations as possible, and so that is why we have been getting on with that job. We seek the advice of the Commission, and we appreciate that advice in order to inform our discussions with other Government departments and the devolved administrations. Of course, Equality 2025 that we have set up, made up of disabled people, provides advice for other Government departments as well, and they are cross-cutting organisation that we have set up. So we receive advice and have discussions about that advice and consider it before we reach a decision. Ultimately it is for Ministers to make decisions.

  Q32  Mr Timpson: As we sit here today, are you at the stage where you are starting to write up this memorandum, and are you at the stage of writing up your draft, or are you still having discussions and seeking advice?

  Jonathan Shaw: The final domestic affairs rights round needs to be undertaken, so there is some process within Government for things to be absolutely final. Of course, any views that we are seeking between now and then we will obviously take account of. I go back to the point that it is not fair or reasonable to say that we have not received advice or had discussions with disabled people or their organisations.

  Q33  John Austin: I apologise for being late. I accept what you say. I think enormous progress has been made on issues of equal rights and particularly on the disabilities issue. I think all of us round this table share your view that we want to see no reservations, but as few reservations as possible, but you appear to be on the defensive and you talk about the discussions with other departments and I recognise that other departments may have particular issues on particular subjects, but it would be much to your benefit and the Government's benefit if those discussions were much more open, if the people sitting behind you knew the precise nature of the difficulties that some of the departments have on some of the aspects, and what those reservations are, and if there was much more open debate. It does appear that we cannot have that open debate.

  Jonathan Shaw: I can see why you are saying that I am on the defensive, because I am being accused of certain things, so I have to defend my position as I see it.

  Q34  Chairman: Do not take it personally.

  Jonathan Shaw: No, I am not taking it personally; it is a very important point, and I am enjoying the debate because this is an issue of such magnitude, one that I take seriously, and I enjoy it because I am proud to be the post-holder that will seek to ratify at this Convention. When I said to Mr Timpson, Mr Austin, that there were examples of where we flagged to the Committee—the Committee has that material and we have had an exchange of correspondence, or my predecessor did—that cultural and independent living would be areas that we would seek reservations on. So I am not defensive in saying we have worked through those. We have achieved your aspiration to have no reservations, and ours, to have as few as possible, so we have worked on that. so rather than perhaps being defensive I should be proud of our achievement—and indeed I am.

  Q35  Mr Sharma: Mr Shaw, what steps have you or your predecessor taken to try to persuade individual departments that reservation or imperative declaration may not be necessary?

  Jonathan Shaw: Yes, well I think it is an important point that we emphasised. We have had discussions and I am not averse, and certainly my predecessor would not have been averse, to twisting a few arms when necessary, but we would not twist arms in public; we would have those discussions with colleagues in private. We would not have these disagreements in public because that is not the way that collective Government does its business. We have sought to provide advice through the Office of Disability Issues and the excellent work of Equality 2025 to other departments, and we have seen the elimination of cultural services and that of independent living; but in that work, as I said in my opening statement, what it has done is thrown up the issue of benefits appointees and power of attorney. It has not worked all one way.

  Q36  Mr Sharma: Can you explain why the Home Office are pressing for reservations or based on their existing immigration reservation to the Convention for the Rights of the Child (a reservation which the Home office has already agreed to remove)?

  Jonathan Shaw: Yes, they have agreed to it, and I think the Home Office would not say that their desire to have a reservation is related to that of the Convention for Children. It is essentially about immigration and particularly public health, where the Home Office may wish to screen individuals entering the country, or they may wish to do it in the future. That is something that I think all Member States would seek to want to do. I believe that all Member States have the power to impound an aeroplane, for example, if they had a concern about the passengers' public health. Obviously, that has to become a paramount issue; you could not have people getting off the plane who had a particular disease that is going to cause the general population to be affected.

  Q37  Dr Harris: That is a slightly different issue from screening because there is clearly a threat to public health in that case; whereas screening, for example for TB—there is not a shred of published evidence—there may be some secret evidence of course—but there is no published evidence that screening programmes offer any protection to the public health, and therefore it would not be motivated by public health but for other reasons. Are you saying that the Home Office is seeking room for manoeuvre to bring in screening arrangements that are not related to protection of public health on a clearly proportionate level, because you look at the evidence when you look at proportionality, do you not?

  Jonathan Shaw: I am sure that the intention of the Home Office will be to have a proportionate level. Their policy will be proportionate and it will be for a public health interest. When we publish the explanatory memorandum, the Home Office department will be able to provide the detail.

  Q38  Dr Harris: But you could reassure the Home Office, could you not, that they do not need a reservation if it is to take action that is to protect public health and is proportionate? As you say, all companies would need to do that with SARS, for example; they would not need a reservation.

  Jonathan Shaw: It is about what the Home Office may wish to do in events unforeseen in the future. As I say, they will be able to explain in detail their reservation when we publish the explanatory memorandum. It is for departments to determine, just in the same way it is for devolved administrations to determine whether or not they have reservations. It is the job of my Department and my officials to provide advice and discussion about areas where they might want reservations; but, as I say, the Home Secretary has made clear to us that that is where she wishes to have a reservation.

  Q39  Chairman: This is pretty unsatisfactory, is it not, because what is going to happen is that you have discussed this behind closed doors with the Home Secretary? The Home Secretary has come to the conclusion she wants a reservation. No matter how unreasonable the reservation may appear to the outside world, if it were consulted and put its views forward, you accept what the Home Secretary says even though you are Minister for Disabilities and you may not be arguing for this. It is then published as part of the final document for presentation to Parliament without any opportunity for amendment, discussion, or debate, as to whether or not the reservation is justified, or in particular that it could be removed. This comes back to our earlier line of questioning. Is it not better for that reservation to be published in draft first so that there can be discussions as to whether in fact it is justified? Evan Harris has just given you an example of why that particular one, frankly, is wrong because it would apply to every single thing that could be ratified because you have the same powers. Would it not be more sensible to publish it in draft form first to enable those discussions to take place with civil society and the NGOs and indeed with relevant parliamentarians before presenting the final document on a take-it-or-leave-it basis because when it does come as you are proposing so far, it is a "take it or leave it" document, no matter how unreasonable under detailed scrutiny it turns out to be, or how reasonable it may be?

  Jonathan Shaw: As I said earlier, I will reflect on that advice from you, Chairman. The Home Office have said that they firmly support the objectives of the Convention, but they wish to avoid any possibility of there being a conflict now or in the future between measures that might need to regulate entry into the UK in the interests of protecting public health on the one hand and our international obligations on the other. That is the only reason they are entering this reservation.

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