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

Examination of Witnesses (Questions 40-59)


18 NOVEMBER 2008

  Q40  Lord Lester of Herne Hill: They are talking about Article 18, are they not, which is the one that deals with liberty of movement?

  Jonathan Shaw: My lawyer says "yes", sir, so yes!

  Q41  Lord Lester of Herne Hill: Can you help me because I always like to be a bit specific if possible?

  Jonathan Shaw: So I have heard.

  Q42  Lord Lester of Herne Hill: What is there in the language of Article 18 that gives rise to any problem? Article 18 is recognising the rights of people with disabilities to liberty of movement, et cetera. Our immigration laws contain ample powers to restrict movement. I do not understand how Article 18 can give rise to any problem with regard to our existing laws which is not encountered, if it was a problem, by the other Member States of the EU and the other member states of the world. What is it that is special about this language and this country that requires the Home Office to enter a reservation? I would like to be specific about example.

  Jonathan Shaw: As I understand it, it is not just this country, Australia has ...

  Q43  Lord Lester of Herne Hill: Leave aside Australia and take just the United Kingdom.

  Jonathan Shaw: Frustratingly, as I know it will be for the Committee and for people listening to our proceedings, I, as Minister for the Disabled, have a coordinating role, but I cannot seek to provide the position on detail for that of the Home Office, in the same way that I cannot for the SNP administration in Scotland. However, as I have said to the Chairman, we will publish the explanatory memorandum, and then each individual department and devolved administration can scrutinise to answer as to why in their view they needed to enter those reservations.

  Q44  Chairman: The problem is that that is too late, going back to our earlier discussion: if you are saying, "It's not me, Guv; I am just the front man for the Department and I am not going to justify what the Department says" so they are not going to justify it" we have not got each individual department here and it would be unrealistic for them to answer those questions, they are not engaged with anybody about what their reservations are; it is just wheels within wheels, not turning out and engaging with people about what the particular problems are, unless there is something put in draft first to allow those reservations to be debated. I think Evan is right. If somebody turns up with Bubonic Plague, whether they are disabled or not is going to be irrelevant in taking public health measures against them, is it not?

  Jonathan Shaw: As I said, the Home Office have said they want to ensure that there cannot be a conflict in terms of their need to take action in the future to safeguard the public's health. It is about ensuring that they have got that flexibility as opposed to the international obligations.

  Q45  Dr Harris: I am reassured from what you have said—and this is my last question before Mr Sharma comes back—to Lord Lester that this is not about citizenship, that a requirement for people seeking citizenship to engage in voluntary work—and I am not saying disabled people cannot and generally do not but some might not be able to or might find greater challenges in doing so—that is not the reason, I think, from what you have said, that the Home Office is seeking a reservation on citizenship; and therefore it not be able to expect, and has to have regard, to the ability of people to do voluntary work in order to earn citizenship. This is an issue that was raised with us on craft citizenship that everyone has to ...

  Jonathan Shaw: If that is an issue that we have worked through, then—my lawyer says that we have not heard of that. My note on this particular reservation, Dr Harris, says and concludes this is the only reason why we are continuing this reservation, so it is only on a public health concern.

  Q46  Dr Harris: Then you may wish to, during consideration of that bill, consider whether it is acceptable to put requirements for active voluntary work as a requirement for citizenship, which might disadvantage unfairly people who are not in a position to do that—some people. That is the corollary of that.

  Jonathan Shaw: My officials have noted it.

  Q47  Baroness Stern: I would like to move on to ask you a couple of very easy non-controversial questions about the European Commission—really, nice questions!

  Jonathan Shaw: I bet they are not!

  Q48  Baroness Stern: I understand that the European Commission has published its proposals for ratification of the Convention, which it will do itself. You, presumably, have seen the European Commission proposals for ratification, so can you tell the Committee how long you expect it to take for the Community to agree to ratify?

  Jonathan Shaw: Having spent time discussing agricultural policy and fisheries policy in my previous incarnation, my previous job, I do not know, but I think we expected to see something at the early part of this year. January this year we originally expected to receive the Commission's publication, but we have only just received it. Our initial view is that the legal basis for conclusion or ratification and competence requires careful consideration and scrutiny across Government. I can hear what is coming next from the Chairman, as to whether that will be a transparent process. Obviously, this will be something that other committees of the House, notably the European Scrutiny Committee, I am sure, will have some input into, and as is their wont, having appeared in front of their long sessions, to justify the UK position on particular parts of European legislation, they will want to have a look at that. We will be looking at the detail and having discussions both internally and with colleagues and Member States.

  Lord Lester of Herne Hill: Did I mis-hear you? Did you say September?

  Q49  Baroness Stern: May I just finish this bit? Are you intending to wait for the European Commission process to be complete before you have ratification?

  Jonathan Shaw: We have a duty of loyal cooperation, as do all Member States, but we do not see that we have to wait for the Commission before ratification, Lady Stern.

  Baroness Stern: I told you they would be easy!

  Q50  Lord Dubs: Looking at other countries in the EU and outside, do you have any information about whether they are having the same difficulties with this Convention as you are; or are they more open in their approach?

  Jonathan Shaw: Some countries have ratified, Lord Dubs, and others have not. We wanted to undertake the exercise that we think is appropriate to considering it in relation to our domestic laws and the policies that we have implemented in recent years and intend to in the future, so it has taken us this time. There will be other countries—I am not going to do various lists but those are available and, as I say, some have and some have not, but I do not think that we are in any way lagging behind—far from it; I think that our signature that we expect to see in the spring—we will be up there.

  Q51  Lord Lester of Herne Hill: Can I ask you a different kind of question about the majority decision of the Law Lords in the Malcolm case? What changes does the Government think are necessary to reverse that majority decision and comply with the Convention obligations to eliminate all forms of discrimination?

  Jonathan Shaw: I have read some of your exchanges with my colleague Lord Mackenzie, and I think you cited the example of a blind person wishing to enter a restaurant who uses a guide dog. My legal advice, Lord Lester, is that whilst unwelcome the Malcolm Lewisham case does not prevent us from ratification, but we will be seeking during the passage of the Equality Bill to change that decision. I do not know whether Mr Timm can give you any more detail than that.

  Mr Timm: Basically, we are hoping that we can have a consultation maybe beginning around the end of this month, so that we can go out to people with a specific proposal. The final "i"s and "t"s have not been crossed and dotted and whatever else you do with those, but our intention is to propose a move to indirect discrimination as a way of rectifying the Malcolm judgment and ensuring that in addition to reasonable adjustment and direct discrimination, which we will introduce through the Equality Bill where it does not already apply. In effect, you have direct discrimination, indirect discrimination, reasonable adjustment, along with victimisation and harassment, as now.

  Q52  Lord Lester of Herne Hill: That is an extremely helpful and positive answer for which I am most grateful.

  Jonathan Shaw: Gosh—half a tick!

  Lord Lester of Herne Hill: The only thing you have not mentioned, and it is not for now, is the nature of the comparison that the Malcolm decision lights, but I imagine that will be something you will be considering in your consultation paper. Thank you very much.

  Q53  Lord Morris of Handsworth: I do not want to spoil the party!

  Jonathan Shaw: Go on!

  Q54  Lord Morris of Handsworth: Just sticking with Mr Timm's view about consultation, with reference to the Equalities Bill, will this consultation be published before the Government ratifies the Convention; and if not how do you propose to consult in order to meet the requirements?

  Jonathan Shaw: You are not spoiling the party—it can continue in full flow! We will publish well in advance before ratification.

  Q55  Lord Morris of Handsworth: You will?

  Jonathan Shaw: Yes.

  Q56  Mr Timpson: Can we move on to some of the nuts and bolts now, looking at a specific issue under Article 24, the right to education. We understand that you are proposing to seek a reservation. As you will be aware, the right to education in the Convention is subject to the principle of progressive realisation. We have had a number of submissions from various groups that have come to the view that the Government has really misunderstood this provision and the nature of inclusion within it, and that to try and seek a reservation has been far too cautious because of the principle of progressive realisation. It is not as if, as soon as you ratify the Convention, that the very next day all the special schools will close because it is progressive to reach the point of realisation that you have time to plan and change the environment in which this Convention has to sit within. Can I ask you first of all, giving you that backdrop, to tell us whether you are still seeking a reservation and to justify the basis on which you are doing so?

  Jonathan Shaw: Yes, we are seeking a reservation and an interpretive declaration, and it is the DCSF's position, and they do so because it is their belief that inclusion includes education provision that is outside of the mainstream for the reasons that this may be what certain children require and also taking account of parental wishes.

  Q57  Mr Timpson: On that basis does your desire to give weight to parental choice or parental wishes override your aspiration to provide all disabled children with an inclusive education?

  Jonathan Shaw: No. The department's view is that having that special educational needs provision that may be outside of the mainstream is inclusive because it may be that for some children that provision is not possible within the mainstream provision, and also it is the views and the wishes of parents, and within the interpretative declaration, that is why the department have made that, they do not see that they would want not to have that arrangement or that possibility, but certainly it is the Government's policy that we have sought to mainstream a great deal of education provision, not always with the support of all parties in this House, I might say.

  Q58  John Austin: Can I turn to the issue of the Ministry of Defence and their reservations? I know that the reservation which is being argued is in accordance with the provisions in the DDA. You will know that the HRC has given evidence to us suggesting that the reservation in the DDA should go. There really is not any implication in the Convention that the Ministry of Defence or the Army or any of the Armed Services have to recruit people who are not capable of doing the job, is there? What is the basis of the reservation? We know that as a result of injury and disability places are being found within the Armed Services for people for employment. Nobody is asking someone with a disability to be placed in an inappropriate place of employment. I really cannot see why the MoD is putting forward this reservation. I would certainly suggest that you might consider the EHRC's view that we should amend the DDA as well to take account of that.

  Jonathan Shaw: You will know of the reasons why the MoD wanted to be exempt from the DDA. It really wants to be able to determine the service needs of the Armed Forces and it does not wish to be second-guessed on that, and so it stands that it is their wish to have this reservation and it will not come as a surprise given the history on the DDA. You mentioned employment, I think, Mr Austin. It is about service, as the Armed Forces would see it, and they want to have the flexibility to be able to deploy people as they see fit. Principally, every man and woman who is in the Armed Services could be deployed for front-line service but, as is patently obvious, that would not be possible or practicable and so, as you also say, there are a number of personnel who are, as it were, redeployed to jobs because of a disability and that they may become disabled due to being in theatre, of which our forces are in a number at the moment, and so they would want to be able to deploy people and have that flexibility to make provision within their own numbers rather than perhaps jobs that could be undertaken by everybody, including disabled people, to be open to competition, as it were. That would be entering into the traditional employment arrangements.

  Q59  John Austin: Has any other country that has ratified the Convention entered a reservation in respect of the Armed Services?

  Jonathan Shaw: That is an excellent question, and I will ask. I do not think so, no, are the two answers I was given.

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