Examination of Witnesses (Questions 60-79)
JONATHAN SHAW,
MR RICHARD
TIMM AND
MS SIMMY
VIINIKKA
18 NOVEMBER 2008
Q60 John Austin: So we are out on
our own on this one?
Jonathan Shaw: It would appear
so, yes.
Q61 Chairman: So none of our NATO
partners who have ratified already has any concerns that somehow
ratifying the Convention is going to mean that the people going
over the top are going to be in wheelchairs or cannot see where
they are going. They do not have that problem. France and Germany
are about to ratify without reservations. Austria, Hungary and
Spain have already ratified. They do not have this problem. They
have got perfectly efficient armed services. Why do we? Do you
seriously think that ratifying the Convention without this reservation
will force the Army to put disabled people in the front line?
Jonathan Shaw: Germany and France
are obviously countries with a considerable amount of armed forces
personnel and they have not ratified, Chairman.
Q62 Chairman: But they are managing
that without reservation.
Jonathan Shaw: What I think is
the view of Government and that is how we arrive at these positions.
I can give you some outline of some of the detail that has caused
departments of devolved administrations to want to enter into
reservations, but obviously the detail of that will be published
with the explanatory memorandum.
Q63 John Austin: Apparently the MoD
is arguing a consistent line with the exception of the current
DDA.
Jonathan Shaw: Yes, sir.
Q64 John Austin: Is it not time to
revisit the DDA exception?
Jonathan Shaw: I do not doubt
that in the course of the Equalities Bill these issues will arise
and members will want to discuss this matter in both Houses.
Q65 Chairman: You have referred a
few times now to the devolved administrations. Have the devolved
administrations specifically requested any reservations themselves
that you were not previously thinking about doing?
Jonathan Shaw: I am advised, Chairman,
that they concur with England on education.
Q66 Chairman: That is not what I
asked you.
Jonathan Shaw: Is it not?
Q67 Chairman: No.
Jonathan Shaw: Oh, dear.
Q68 Chairman: I asked you not whether
you agree with what the devolved administrations have done but
whether they have asked for any that you were not proposing in
the first place?
Jonathan Shaw: On the Army, obviously
not. In terms of social security, obviously, that is UK-wide,
but clearly education is devolved and the Home Office also is
UK-wide. Are there other areas?
Ms Viinikka: There have been discussions
about a couple of areas where there was a particular concern but
I think those areas have been resolved. There were specific requests.
Q69 Chairman: So they made specific
requests and you have dealt with them?
Ms Viinikka: Yes.
Q70 Chairman: So when we are talking
about devolved administrations that is now pretty irrelevant?
You have talked several times now about devolved administrations.
Effectively, that is now an irrelevance to taking the discussion
forward, apart from the issue of education that you have just
mentioned?
Jonathan Shaw: In terms of we
have undertaken that work. Clearly, cultural services is a matter
that is devolved, and independent living, particularly in areas
of social care, is an area that is devolved in one, two, three
administrations, so in four administrations perhaps that have
different service provision, different service delivery, we have
managed to iron all of that out.
Q71 Chairman: Which I am pleased
to hear about, but in practice now the devolved administrations
are no longer an issue as far as ratification is concerned except
for the issue of education?
Jonathan Shaw: Except for special
schools, that is right.
Q72 Lord Bowness: Minister, can I
turn to the optional protocol? As I understand it, this gives
individuals the right to seek redress directly to the UN and we
have been told in the past that the Government was considering
its position with regard to this in the light of the ongoing review
by the Ministry of Justice on a similar protocol relating to the
Convention on the Elimination of All Forms of Discrimination against
Women..
Jonathan Shaw: Yes.
Q73 Lord Bowness: It would be interesting
to know where you were getting with that and also whether the
Government is concerned about there being a flood of direct applications
when I equally understand that it is the Government's view that
UK legislation is very largely compliant with the Convention.
Jonathan Shaw: No, I do not think
there will be a flood because we have confidence in our domestic
legislation and you will be familiar with the fact that obviously
that would have to be exhausted before a complaint was lodged
with the UN Committee. You are right to highlight the review that
has been going on with the CEDAW optional protocol, but we are,
I can say to the Committee, in the procedural processes of seeking
the views of other government departments on this and when that
process is complete we will be able to announce whether we are
going to sign up to the optional protocol or not. Traditionally
we have not done that. The CEDAW optional protocol was a chance
to have a look and find out whether indeed we did receive this
flood that you refer to but we should be confident that our domestic
legislation provides for an appropriate level of complaint representation,
et cetera. As I say, we will be in a position in the not too distant
future to be able to advise whether we will be signing up to the
optional protocol. I am not saying no, sir.
Q74 Lord Bowness: No, I understood
that. It may not have been traditional to sign up to optional
protocols but this is the first time the European Community was
going to ratify, and again we are advised that their proposals
for ratification include the optional protocol. You said to an
earlier question that we would not delay our ratification pending
the European Community's ratification, but where are we going
to be if we ratify with the reservation and then the European
Community ratify without? Has somebody given some thought to the
general legal position that will then flow?
Jonathan Shaw: We are content
that if we decide to sign we will sign and we can do that.
Q75 Lord Bowness: Forgive me, Minister.
The position is that you have said we will not wait for the European
Community to ratify. That is fine. It is not certain but possible
from what you have said if tradition is followed that we will
ratify with a reservation regarding the protocol. Your assistant
is frowning at me as if I have got it all wrong so perhaps she
will tell me why.
Jonathan Shaw: I am sure she is
not frowning at you in that way.
Q76 Lord Bowness: I really do not
mind because occasionally I do get it wrong, but if we ratify
with a reservation, not waiting for the European Community, and
the European Community then ratifies without a reservation, have
we given thought to where we stand?
Jonathan Shaw: I believe we have.
Q77 Lord Bowness: What have we decided?
Ms Viinikka: I am sorry. I was
confused. This is on the optional protocol.
Jonathan Shaw: You have confused
the lawyer as well, my Lord.
Ms Viinikka: Yes. This is if we
ratify the Convention without ratifying the optional protocol?
Q78 Lord Bowness: Correct.
Ms Viinikka: We have certainly
given some thought to that situation. That would be a situation
we would have to discuss carefully with our European partners,
but we are hoping, from what the Minister just announced—
Jonathan Shaw: That sounds a bit
flaky. Do you want to clarify it, Mr Timm?
Mr Timm: The straight answer to
your question, as I understand it, is that if we do not ratify
the optional protocol and the European Community does an individual
in the UK might be able to make a complaint to the Committee about
European legislation which in reality is a complaint about UK
legislation because we have perhaps implemented a European directive,
say, so it would be a back door to the treaty monitoring body.
Q79 Chairman: But only on EU competence?
Mr Timm: Only on areas of EU competence,
yes, and, as the Minister alluded to earlier, in terms of the
proposals from the European Commission for ratifying both the
Convention and the optional protocol, discussions on those are
starting very soon, this week in fact, at official level and that
is one of the issues we will be talking to the Commission and
European partners about, how do they see the position if some
Member States do not ratify the protocol.
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