Ministry of Defence and service
in the armed forces
81. The former Minister told the Committee:
"The Ministry of Defence will wish to have a
reservation in respect of service in the armed forces, consistent
with the provisions of the Disability Discrimination Act 1995
(as amended)."
82. The provisions of the DDA provide the Ministry
of Defence with an exemption in respect of service in the armed
forces.[88] The European
Commission's current proposals for ratification include a proposal
for a reservation which would permit, but not require, Member
States to enter a similar reservation to exempt their armed forces.[89]
So far, no EU Member State that has ratified the Convention has
entered a reservation in respect of the armed forces. The Minister
confirmed that no reservation has been made in respect of any
State Parties' armed forces. The UK would be the first country
to seek a reservation in these terms.
83. A significant number of witnesses told the
Committee that this reservation was unnecessary and that the MoD
was being unduly cautious in retaining its exemption from the
DDA. The UN Convention Coalition told the Committee:
The armed forces have already publicly acknowledged
that the only problem they have with the Convention - as with
the DDA - is that they should not be obliged to recruit disabled
people. They are already retaining service men and women who
become disabled when on active service. However, neither the
DDA or the Convention requires an employer to employ an unqualified
disabled person. Nobody would believe a war zone to be a reasonable
environment for a blind or deaf person (for instance).[90]
84. The TUC agreed:
The critical point in this argument is that even
without the [exemption/reservation] the armed forces would not
be compelled to recruit any person who was not capable of doing
the job. Ratifying the Convention without reservation would still
not lead to the armed forces being required to recruit personnel
not able to meet the requirements of the job. However, it is
also evident - if only from the reported fact of numbers of service
people apparently retained after disabling accident or injury
- that there are many jobs within the armed forces that do not
require full active service fitness and capability.[91]
85. The EHRC told the Committee:
"The Commission believes the time has come to
lift the exemption of the armed forces from the Disability Discrimination
Act in light of a positive change in attitudes towards equality
and diversity in the military and this possibility has been raised
with Ministers at the MoD."[92]
86. We asked the Minister why the Government
considered that these proposals were necessary. He said:
[The Ministry of Defence] 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 of the DDA. 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.[93]
87. The Minister went on to explain that although
not all serving personnel would be deployed to the front-line
(particularly those who had previously been wounded in service),
the armed forces were perhaps seeking the flexibility to be able
to fill all of their posts from within their own ranks.[94]
We asked the Minister if the time had come to revisit the
exemption for the armed forces from the full application of the
DDA, particularly in view of the evidence which we received that
it is unnecessary. He told us that he expected that this issue
would arise during debates on the forthcoming Equality Bill.[95]
88. We share the doubts of the EHRC and other
witnesses over whether the continued exemption of the armed forces
from the application of the DDA is justified. We agree with the
Minister that the forthcoming Equality Bill will provide a timely
opportunity for the Ministry of Defence to consider whether its
position is now outdated. It would be unfortunate if reservations
were entered to the Convention which were quickly proved unnecessary
as a result of a positive reform in domestic law. We recommend
that the Government now consider, against the background of its
commitments in the UNCRPD, whether an amendment to the DDA might
be included in the forthcoming Equality Bill to remove the exemptions
currently enjoyed by the armed forces. If the Ministry of Defence
consider that the exemptions continue to be justified, we would
expect the Government to provide supporting evidence for its position.
Are reservations necessary or
appropriate?
89. We currently lack detailed information on
the scope of the reservations and interpretative declarations
being considered by Government. For example, the Minister for
Disabled People told us about an additional reservation which
the Department for Work and Pensions consider necessary, in relation
to benefits appointees and capacity (Article 12). This was the
first that our Committee had heard of this reservation, despite
having been in detailed correspondence with the department during
the preceding months.[96]
During oral evidence, the Minister reassured us that some
reservations which were previously considered were now thought
unnecessary and provided further detail on the individual reservations
and interpretative declarations being sought by each department.[97]
Since the Minister gave evidence, it has emerged that the
Home Office may be considering multiple reservations or interpretative
declarations.[98] This
is an entirely unacceptable way to act if we are to conduct effective
scrutiny of the Government's position and proposals for reservations.
90. We have inadequate information to reach
a firm conclusion on the necessity for each of the reservations
being considered by the Government. However, in the light of
the evidence we have received and the detail we have seen, we
share the doubts of many disabled people's organisations that
any, or all, of the reservations or interpretative declarations
currently being considered by the Government are both necessary
and compatible with the object and purpose of the UNCRPD.
91. If the Government now considers that reservations
are necessary, it must provide clear justification for its position
and its view that the reservations or interpretative declarations
are permitted. We are concerned that the Government's proposals
imply an outdated approach to equality for disabled people, proceeding
on the premise that reservations are needed in order to maintain
the Government's current policy, rather than examining whether
the current policy is appropriate or compatible with the goals
of the Convention. This defensive approach is in stark contrast
to the Government's goal to achieve equality for all disabled
people by 2025. This approach, in our view, could have been avoided
through the adoption of greater transparency and by providing
the opportunity for closer scrutiny of the Government's concerns.
92. If the Government decides to proceed with
its proposals for reservations to the Convention, other States
may be able to challenge the reservations, as incompatible with
the object and purpose of the Convention. Some witnesses told
us that reservations being proposed were liable to challenge,
particularly in respect of the concerns of the DCSF and the proposals
for reservations in respect of the right to education. We consider
that it would be premature for us to express a firm view on the
compatibility of any proposals with the object and purpose of
the Convention. We recommend that together with publishing the
draft text of any proposed reservations, the Government provide
a clear explanation of its view that they are compatible with
the object and purpose of the UNCRPD.
52 Article 46 Back
53
www.un.org/disabilities/ [Last accessed 16 December 2008] For
example, Australia has made three declarations about its understanding
about the scope of the Convention in relation to mental capacity,
compulsory treatment for people with mental health disabilities
in certain circumstances and in relation to immigration and citizenship. Back
54
Ev 12-13 Qq94 - 96 Back
55
Ev 54, Ev 31 Back
56
See for example Ev 22 Back
57
Seventh Report of Session 2007-08, paras 101-109 Back
58
For example Ev 64, Ev 24 Back
59
For example Ev 61, Ev 22 Back
60
For example Ev 63, Ev 22 Back
61
Ev 26 Back
62
Ev 29-30, Ev 24 Back
63
Ev 26 Back
64
Ev 60 Back
65
Ev 61 Back
66
Mayor and Burgesses of the London Borough of Lewisham v Malcolm
[2008] UKHL 43, paragraph 40 Back
67
HL Deb, 9 July 2008, Col 749 Back
68
Ev 27 Back
69
Ev 20 Back
70
Ev 35 Back
71
Ev 8 Qq51-52 Back
72
The consultation period for this consultation was 6 weeks (ending
on 6 January 2008) Back
73
Ev 19 Back
74
Press Notice, DCSF, 'UK lifts Reservations on the UN Convention
on the Rights of the Child' 22 September 2008. Back
75
See for example, Tenth Report of Session 2006-07, The Treatment
of Asylum Seekers, para 65. Back
76
Ev 6 Q36. Back
77
Ev 6 Q38. Back
78
Ibid. Back
79
Ev 15 Back
80
Ev 19 Back
81
Ev 54 Back
82
Ibid Back
83
Ev 15, Ev 22-23, Ev 24, Ev 28, Ev 36, Ev 38, Ev 40, Ev 48, Ev
50-52, Ev 53, Ev 55, Ev 58, Ev 61, Ev 67 Back
84
Ev 50 Back
85
See for example Ev 15 Back
86
Ev 32. Although they object to reservations, Leonard Cheshire
have indicated that they would accept an interpretative declaration
in the terms proposed by Equality 2025 Council for Children with
Disabilities which sets a deadline of 2025 for full equality,
Ev 34. Back
87
Ev 9 Q57 Back
88
Section 64(7) Disability Discrimination Act 1995 provides that
the section of the act which prohibits discrimination in employment
will not apply to any of the armed forces. Section 49(C)(3) provides
that the public authority disability duty will not apply to the
armed forces in so far as it applies to recruitment or the service
of any person serving in the armed forces. Back
89
The UN Convention Campaign Coalition have indicated that this
proposal was included at the request of the United Kingdom, Ev
15 Back
90
Ev 53 Back
91
Ev 26 Back
92
Ev 40. Back
93
Ev 9 Q58. Back
94
Ibid. Back
95
Ev 10 Q64. Back
96
Ev 1 Q1 Back
97
Ibid. Back
98
Ev 67 Back