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


Examination of Witnesses (Questions 80-96)

JONATHAN SHAW, MR RICHARD TIMM AND MS SIMMY VIINIKKA

18 NOVEMBER 2008

  Q80  Lord Bowness: Again, as I understand it, and perhaps the Chairman does not want us to go down this road because it is a bit abstruse really, it is unusual in the sense that the Community is going to ratify for the first time. Does that really mean what it says or are there in effect legally going to be a series of ratifications by Member States because that would seem to be superfluous if individual Member States had already ratified in their own capacity as opposed to members of the European Union. If in fact the European Community is going to ratify is it something that is going to need unanimity? Does it cross into the Third Pillar of Justice and Home Affairs?

  Ms Viinikka: We think that unanimity would be required because a lot of the—

  Q81  Lord Dubs: So a British minister will have to vote for it in the Council of Ministers?

  Ms Viinikka: Yes, if that were the policy.

  Q82  Chairman: What about the same reservations that the UK Government is going to impose for the UK?

  Ms Viinikka: Is this on the Convention or on the optional protocol?

  Q83  Lord Bowness: We are, with respect, talking—or at least I am—from the UK's point of view about ratifying the Convention with a reservation about the protocol and the European Community ratifying the Convention with no reservation.

  Mr Timm: Could I explain our confusion on this table? Could I just explain why we are confused?

  Q84  Lord Dubs: That is good!

  Mr Timm: Yes! The Convention and the optional protocol are two separate treaties, so we will ratify the Convention and take an entirely separate decision about the optional protocol. It is not that we enter a reservation in respect of the protocol. That is where our confusion was coming from. They are two separate treaties.

  Q85  Lord Bowness: But we could still end up with a situation where the European Community ratified both and we had only ratified one?

  Mr Timm: Yes, we could.

  Lord Bowness: And the net effect is probably not terribly different.

  Q86  Chairman: We could also have the rather bizarre position where we agreed with the EC ratifying the Convention without reservations whereas we only ratify it with reservations.

  Ms Viinikka: In an area of Community competence the Community would need to turn to a reservation for that to be effective. For example, the Community has proposed a reservation in relation to service in the armed forces in its proposal.

  Q87  Chairman: As a response to the UK position?

  Ms Viinikka: No. It just arrived. We had no involvement in the text.

  Q88  Lord Dubs: Could I just ask where does this lead? Suppose there are two different decisions, one in Brussels and one by the British Government. Where does that leave us? I do not understand that.

  Jonathan Shaw: Seeking advice, Lord Dubs. As I say, the answer to signing the optional protocol has yet to be decided. It is certainly not no and the process which you will be familiar with is in train, so hopefully I will not need to seek that advice.

  Q89  Lord Morris of Handsworth: Minister, you have talked about relationships with the devolved administrations. Will there be Convention focal points within these devolved administrations?

  Jonathan Shaw: Yes. Each administration has its own Human Rights Commission and they are the monitoring body for us, and that is the same, I understand, in Wales, Northern Ireland and Scotland.

  Q90  Lord Morris of Handsworth: In that case what would be the focal point that would relate to the ODI and people locally with disabilities?

  Jonathan Shaw: The ODI provides advice and cuts across government but in terms of matters post-ratification at a devolved and a Community local level we have not had those conversations yet and much of them will be for the determination of the devolved administrations as to how they administer them.

  Q91  Lord Morris of Handsworth: I am seeing the Convention ratified and I am seeing the ODI and other focal points in the devolved administrations. What I am seeking to explore and understand better is what the relationship in the devolved administrations would be with the ODI.

  Jonathan Shaw: The ODI would be the focal point for the whole of the country, so I understand, but how it is chosen at a local level would be for the DAs. Perhaps Mr Timm would provide some more detail on that.

  Mr Timm: I think probably the easiest way to answer that is to explain that as we have been going through this ratification process we have been dealing with contacts in the devolved administrations, obviously.

  Q92  Lord Morris of Handsworth: One focal point or a number?

  Mr Timm: We have tended to deal with one. For example, for Northern Ireland it is contacts in the Office of the First Minister and Deputy First Minister, so that is one office for both ministers. My expectation—and it is only my expectation—is that the focal point for Northern Ireland would be in the Office of the First Minister and Deputy First Minister and they would no doubt have a relationship with the Equality Commission for Northern Ireland.

  Q93  Lord Morris of Handsworth: And locally?

  Mr Timm: And locally as well.

  Q94  Chairman: We have spent a lot of time on reservations and I think quite rightly. Forty one countries have ratified. Only four have entered reservations, El Salvador to say that the Convention should be consistent with their constitution, Malta on electoral law, Mauritius on risk and humanitarian emergencies and Poland on abortion. The UK has entered potentially four on its own account, on defence, which we talked about earlier, and I seem to recall that Douglas Bader was a rather good pilot in the Second World War with his disability, education, immigration and benefits. None of our other European partners has got particular worries about these sorts of things. Is there a systematic problem here, that we have signed the thing but there does not seem to be anybody taking leadership of challenging those departments who have come forward and said, "We want this reservation. We want that reservation", there is no involvement with the NGOs in questioning those departments, there does not seem to be much challenge coming from within the ODI to those departments' positions? Is there somebody who should be taking leadership, perhaps involving the Human Rights Commission at MoJ in trying to question these reservations, saying are they really necessary, because the work we have done seems to suggest that most of these things do not amount to a tin of beans and it is really over-egging the pudding, particularly when we look at what all the other countries involved in ratifying the Convention are doing? Nobody else has got these problems. Why is it only the UK that has got a problem about the front line in the Army and all the other things? Is anybody taking the lead in questioning these positions being put forward, challenging them and saying, "Is this right, is this feasible?", because we say it is not because of X, Y and Z?

  Jonathan Shaw: You heard my colleague's advice, Chairman, that it was not just our country in relation to the Army. That is something that I think the Commission have come up with.

  Q95  Chairman: Yes, but the Commission's position is a permissive thing primarily to accommodate the UK; it is not a mandatory thing.

  Jonathan Shaw: The position of the MoD in this country has been clear since they were exempted from the DDA, so I do not think that comes as any surprise. As I say, there have been discussions across government and we have made considerable progress, and I refer to Anne McGuire's letter of May setting out some of the areas where we might be concerned. It is for us to justify ourselves, and obviously it is not appropriate for me to scrutinise other governments and how they have sought to compare the Convention and how it fits with their legislation. It is just for me to talk about this Government in the United Kingdom, and I say to you that we take it extremely seriously, and if there are areas that do not fit and we try and try but it does not fit then we feel it is right to enter a reservation. That is the way we have done business. Can I give you an example, Chairman?

  Q96  Chairman: Can we do something on a comparative basis by way of countries? Do we have a monopoly of wisdom compared to other countries?

  Jonathan Shaw: No, we do not have a monopoly of wisdom and, as I say, it would not be appropriate for a UK government minister to make comparisons as to how different countries have ratified. What I can say is that we take this seriously and we can only be judged, I think, on how we have done that. The example that I wanted to give you was where DWP are going to enter a reservation—not welcome, but it is right that we do—on benefit appointees and powers of attorney. We do not have currently a reviewing system for that and so we are obviously going to have to consider how we might do that at some point in the future, so we are not going to ignore that. We are going to be up front about that in order that Parliament can properly scrutinise that and so that they can understand what we are saying we are doing. As I say, looking across the Convention at all of the different articles, I can point to areas of domestic law where we have made considerable advancement, not least of all giving the DDA 1995 what it wanted in giving it proper teeth that it did not have when it was first passed in these Houses. It is not that we have got all of the knowledge. It is that we do this in our way.

  Chairman: Thank you very much. We have come to the end of the session. I think you get the impression from the Committee that we regard this Convention as extremely important. I know the Government shares our view that it has given a huge amount of benefit to disabled people in the country. Our frustrations are that we potentially are having a slippage in time. We are not involving people as they should be in some of the difficulties that they have identified and the consequences of those, so we may end up with something that is not as good as it potentially could be, but that is not to detract from the very important benefit that this Convention will bring as and when the Convention is ratified in the UK. Thank you.





 
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