Conclusions and recommendations
1. We
welcome the Minister's statement that the Government accepts the
clear benefits of ratification of the Convention. The findings
of our recent inquiry on the rights of adults with learning disabilities
showed that although UK law and policy on the treatment of adults
with learning disabilities takes a human rights based approach,
the day to day experiences of people with learning disabilities
are not so positive. Ratification will send a strong signal to
all people with disabilities in the UK, and abroad, that the Government
takes equality and the protection of their human rights seriously.
We look forward to seeing more detail about how, in practice,
the Government proposes to ensure that the UNCRPD will play an
important part in policy formation. (Paragraph 22)
2. We are concerned
that there has been limited active engagement by the Government
with disabled people and their groups. While we understand that
discussions have taken place between the Minister and his predecessor,
officials and disabled people and their organisations, it appears
that these discussions were largely at the instigation of the
groups themselves and based on relatively little open information.
As the ODI acknowledges in its supplementary evidence, these discussions
are not a substitute for consultation. We are disappointed that,
although drafts of some proposals for reservations were available
in June and July, these were not published in response to our
August request for further information and that the Minister has
since been reluctant to place drafts in the public domain. There
would be clear benefits in consulting people with disabilities
and their organisations on whether or not reservations to the
UNCRPD are necessary. In our view, these would include increased
confidence on the part of disabled people in the Government's
approach. In addition, open discussions with the people most affected
by the potential reservations and interpretative declarations
may help persuade Government that they are unnecessary. If, after
consultation, Government consider that reservations are appropriate,
it will be in a better position to address individual objections
and concerns during parliamentary scrutiny. (Paragraph 30)
3. We consider that
progress towards ratification of the Convention by the UK has
so far lacked transparency and has unfortunately alienated disabled
people and their organisations. This is unacceptable in the light
of the clear Convention commitment which the Government intends
to make to the involvement of disabled people in the development
of policies and laws which affect them. This approach undermines
the previous role that the UK Government has played in championing
equality for disabled people and their leading role in negotiating
the terms of the UNCRPD. (Paragraph 34)
4. Although the Office
for Disability Issues (ODI) has adopted a coordinating role in
Government on ratification of the UNCRPD, it is unclear exactly
what this role has been. The evidence which we heard from the
Minister for Disabled People suggests that each Department has
been asked to forward its concerns and a "wish list"
of reservations to the ODI. Collective responsibility means that
the Minister must defend the need for reservations publicly, but
it is unclear whether anyone within Government has ever scrutinised
these departmental requests to ascertain if they are strictly
necessary, or seriously challenged their compatibility with the
Convention. In the light of the lack of transparency that has
accompanied progress towards ratification, we consider that this
approach is unsatisfactory. (Paragraph 39)
5. We are extremely
disappointed that the Minister has failed to meet the Government's
original goal of ratification by the end of 2008. We are particularly
concerned that this failure means that the United Kingdom has
not been involved in the establishment of the monitoring mechanisms
for the Convention from the outset. We welcome the Minister's
acknowledgement that the United Kingdom need not wait for ratification
by the European Community before proceeding to ratify. (Paragraph
44)
6. We recommend that
the Minister publish the current text of each of the reservations
and interpretative declarations being considered by the Government
without delay to allow full consultation to take place with disabled
people and their organisations. The publication of these drafts
and the reasons for the Government's concerns before the proposals
for ratification are laid before Parliament should not unnecessarily
delay progress towards ratification. Even allowing for a 4-6 week
period for consultation, the Minister's target of Spring 2009
should be achievable. The Government has discovered, since May
2008, that a number of interpretative declarations or reservations
are not needed. A further period of open scrutiny may persuade
the Government that its position on the remaining proposals for
reservations, developed in isolation, has been unduly cautious.
(Paragraph 48)
7. We share the view
of the EHRC that ratification of the Convention ought to take
place as soon as possible. Significant delay by the United Kingdom
will undermine its standing in the international community, may
reduce its ability to participate in the further development of
the monitoring mechanisms for the treaty and may undo some of
the positive and encouraging developments in the Government's
perception as a leader in the campaign for policies and laws which
enable disabled people to live independent and equal lives. However,
we consider that the number of reservations currently being considered
by the Government may send a negative impression to the other
State Parties to the Convention and to disabled people in the
United Kingdom. (Paragraph 49)
8. Whilst we welcome
the new goal set by the Minister of ratification by Spring 2009,
we would be extremely disappointed if ratification were to proceed
without any further opportunity for consultation and scrutiny
by disabled people and their organisations. (Paragraph 50)
9. The proposal that
the UK make at least the same number of reservations to the Convention
as all 43 existing State Parties combined is extremely worrying.
It sends a stark message to other signatories to the UNCRPD that
the UK is concerned about its content. Without clear justification
having been provided, this proposal understandably shakes the
confidence of disabled people in the UK in the Government's approach
to the Convention. We consider that the Minister's explanation
that it would not be appropriate for the UK Government to consider
the position of other State Parties to the Convention rather misses
the point of our comparison. (Paragraph 52)
10. In addition to
the publication of its draft proposals for reservations and interpretative
declarations, we also recommend that the Government should publish
the outcome of its own review of the compatibility of domestic
law and practice with the requirements of the Convention. This
would assist with more detailed scrutiny of the Government's approach
to ratification of the Convention. The Government should be able
to explain clearly why it considers that UK law and administrative
practice currently complies with the requirements of the Convention.
(Paragraph 57)
11. We welcome the
Government's decision to conduct an open consultation on its response
to the House of Lords decision in Malcolm. We do not share
the confidence of the Government that the judgment does not create
difficulties for the compatibility of existing domestic anti-discrimination
law with the requirements of the UNCRPD. At the very least, this
change in the law means that the UK is less likely to meet its
obligation under Article 5 of the Convention to prohibit all discrimination
on the basis of disability, to guarantee to persons with disabilities
equal and effective protection against discrimination on all grounds
and to promote equality, eliminate discrimination and take appropriate
steps to ensure that reasonable accommodation is provided for
people with disabilities. We welcome the Government's decision
to bring forward a new settlement for the protection of people
with disabilities from discrimination in the forthcoming Equality
Bill, and to remove the implications of the Malcolm judgment.
We will examine these proposals during our scrutiny of the Bill.
(Paragraph 63)
12. It is disappointing
that we have now asked three Ministers, including the Home Secretary
for information about the Home Office policy in respect of the
UNCRPD and we still have no clear answers about the Government's
proposals for immigration and citizenship reservations, in relation
to the right to free movement without discrimination on the basis
of disability or other parts of the Convention. It is particularly
worrying that the Home Office approach appears to be based on
a desire to insert a 'catch all' provision to cover as yet undetermined
future policy proposals. This approach would be an entirely inappropriate
way for the UK to approach a new set of positive international
obligations.(Paragraph 70)
13. No detailed proposals
for reservations or interpretative declarations to the right to
education have emerged during our inquiry. We welcome the decision
of the DCSF to provide us with a memorandum about its proposals
but, despite this additional information, we do not have adequate
information about the Government's position or its proposals to
determine whether any reservation is necessary or compatible with
the spirit of the Convention. We recommend that when the draft
text of any reservation or interpretative declaration is
published, that it is accompanied by a full explanation of why
the Government considers that it is necessary and compatible with
the object and purpose of the Convention. This should include
a clear explanation of the Government's view that current law
and policy should not be amended to allow the UK to ratify the
Convention without reservation. (Paragraph 80)
14. 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. (Paragraph 88)
15. 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. (Paragraph
90)
16. 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. (Paragraph 91)
17. 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. (Paragraph
92)
18. We consider that
the benefits of ratification of the Optional Protocol to the UNCRPD
are reasonably clear. The UK has led the field in pushing for
the acceptance of the Convention and advocating the rights of
people with disabilities to equal treatment. We have received
evidence that the right to individual petition is considered an
essential part of participation in the Convention by disabled
people and their organisations. In addition, we consider that
the participation of the UK, from an early stage, in the interpretation
of the Convention and the development of its monitoring mechanisms
would be valuable not only for disabled people in the UK, but
for the ongoing development of the Convention at an international
level. In any event, should the European Commission proceed
to ratify the Optional Protocol to the Convention, we could end
up with the absurd situation that disabled people in the UK could
take their cases to the UN, but only in relation to areas of law
or policy where the EC had exercised competence, not purely domestic
legislation or administrative action. In the field of equality
and non-discrimination this is likely to leave a limited area
where the UN monitoring mechanism would not apply. We recommend
that the Government undertakes to sign and ratify the Optional
Protocol at the same time as it ratifies the Convention. (Paragraph
98)
19. As we have outlined
above, we are concerned that the role of the ODI in relation to
the process of ratification has been unclear. We consider that
the focal point for the implementation of any international Convention
should assume the responsibility for ensuring that the Government
is taking all steps necessary to comply with the UK's international
obligations. This requires a strong presence with clear influence
across Government. Monitoring compatibility cannot be left entirely
to the domestic independent mechanism, in this case, the UK's
equality and human rights commissions. Government must assume
a positive role in its approach to compliance. Article 33 of
the UNCRPD, in our view, will not be satisfied by anything less.
(Paragraph 101)
20. If the ODI is
to act as the focal point for the implementation of the UNCPRD,
we call on the Government to ensure that the Office has the full
cooperation of all departments in its endeavours to ensure that
the UK complies with its obligations and that equality, respect
and dignity for people with disabilities are mainstream concerns
throughout all areas of Government. This must include provision
for effective coordination with the devolved assemblies at a high
level and, if necessary, the designation of separate focal points.
(Paragraph 102)
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