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


Letter from the Chair to Anne McGuire MP, Minister for Disabled People

UN DISABILITY RIGHTS CONVENTION: PROGRESS TO RATIFICATION

  The UN Convention on the Rights of Persons with Disabilities ("the UN Disability Rights Convention") came into force on 3 May 2008. The Optional Protocol entered into force on the same day as the Convention. The Government was closely involved in the negotiation and agreement of this Convention and was one of its first signatories. The monitoring body for the Convention, the Committee on the Rights of Persons with Disabilities will be elected after the first meeting of the Conference of State Parties (which must take place no later than November 2008). Only States which have ratified the Convention may participate in the formation of this monitoring body, including by proposing or electing Committee members.

  We welcome the Government's continued commitment to ratification by December 2008. However, in light of the number of possible reservations or interpretative declarations which you have indicated are being considered, we are concerned that this timetable now appears unrealistic.

  In order to support our work in the next session and to increase the transparency of the ratification process, I would be grateful if you could provide us with some further information on the current stage of the Government's work towards ratification.

RESERVATIONS AND DECLARATIONS

  In your response to our report, A Life like any Other?: Human Rights of Adults with Learning Disabilities, you explained that "one or more" reservations to the Convention were being sought by the Ministry of Defence, the Department for Children, Schools and Families and the Home Office. You also told us:

    There are also a number of areas where we are continuing to explore whether there are any compatibility issues which may result in the need for an interpretative declaration or reservation. There are measures relating to the exercise of legal capacity; aspects of mental health legislation; choice of place of residence and cultural services (interpretative measures).[1]

  Responding to a recent question in the House of Lords, Lord McKenzie of Luton explained: "Other departments have identified areas where the position is not yet clear but progress continues to be made".[2]

    1. We would be grateful if you could outline each of the (a) reservations and (b) interpretative declarations currently being considered by the Government and the reasons for them.

    2. We would also be grateful if you could explain how each reservation is considered compatible with the object and purpose of the Convention (as required by the Vienna Convention on the Law of Treaties).

    3. If the position in relation to any of the reservations or interpretative declarations outlined earlier in the year has changed, we would be grateful if you could explain the nature of the change and the reasons for it.

WORKING WITH THE EUROPEAN COMMUNITY

  On a number of occasions, you have explained that this is the first time that the EC has itself become a signatory to an international human rights treaty and that careful coordination would be necessary before ratification. In May, you explained that this would affect the timetable for ratification by the UK:

    Given the duty on Member States to cooperate with the Community the UK would wish to take into account the European Commission's proposals for Community Conclusion of the Convention, which is still awaited.[3]

  Twenty-six EU Member States have signed the Convention and 16 have signed the Optional Protocol. Hungary, Spain and Slovenia have already ratified both the Convention and the Optional Protocol. The European Commission has explained:

    Given the strong convergence of objectives between the overall EU Disability Strategy and the UN Convention, the Commission considers that issues relating to implementation of the UN Convention at EU level should be tackled in the framework of the rolling EU Action Plan on mainstreaming of disability.[4]

  The Commission is currently considering its proposals for the Council Decision necessary for conclusion of the Convention by the Community.[5]

    4. I would be grateful if you could provide further information on how the UK Government has coordinated with the European Community on its preparations for ratification of the UN Disability Rights Convention. In particular:

    (a)  Please provide us with any documents relevant to the "European Commission's proposals for Community Conclusion of the Convention", including any draft Decision, as soon as they become available.

    (b)  Does the Government consider that there are any barriers in areas of EC competence to either (a) ratification by the UK in December 2008 or (b) any proposed reservations or interpretative declarations being considered by the Government?

    (c)  If so, please tell us what these barriers are and how they will affect the Government's preparation for ratification of the Convention.

BARRIERS TO RATIFICATION: SCOPE OF THE DDA

  We welcome the Government's view that the UK should not ratify any international treaty until it is in a position to ensure that it can implement the provisions of that Convention and comply with its obligations.[6] You told us:

    Ratification will be in respect of the United Kingdom of Great Britain and Northern Ireland. Part of this process has required the Devolved Administrations and Government Departments to check their legislation policies, practices and procedures against the Convention's provisions. This has inevitably taken some time. However, this phase of the work is now over and we are considering carefully the emerging findings.[7]

    5. Please explain whether the Government has identified any barriers, or potential barriers, to ratification in the domestic legal systems and administrative practices of the United Kingdom, including in respect of the Devolved Administrations.

    6. Does the Government intend to publish the outcome of its internal review of the compatibility of domestic legislation and administrative practice with the UN Disability Rights Convention?

    7. If so, we would be grateful to receive a copy as soon as the review is complete. If not, we would be grateful if you could provide a detailed summary of the responses received from each Government department and each of the Devolved Administrations in your response to this letter.

  In June 2008, the House of Lords significantly narrowed the protection from discrimination on the grounds of disability offered by the Disability Discrimination Act 1995 (DDA). Under previous case law, if, for example, an employee were away from work for a long time because of his disability, the way that he was treated by his employer should not be compared to someone who was also away but for reasons not related to disability.[8] In Malcolm, a majority House of Lords reversed this position.[9]

  As one of our members, Lord Lester of Herne Hill QC recently explained in the House of Lords, under our current interpretation of the DDA, this means:

    A person who is blind, or visually impaired, with a dog will not be able to claim disability discrimination if a restaurant has a "no dogs" policy and applies the policy regardless of disability".[10]

  Now, disability must play a "motivating part" in a decision to treat a person less favourably. It will not be enough that a rule or practice is applied to everyone but has an indirect discriminatory effect on people with disabilities.[11] In a minority judgment, Baroness Hale explained why she thought this approach unsatisfactory:

    The object of the earlier race and sex discrimination legislation was to secure that like cases were treated alike regardless of race or sex. [...] But this might not be enough. The race and sex discrimination legislation recognise both direct discrimination of that sort, when race or sex or disability is the reason why the landlord behaves as he does, and indirect discrimination, where the landlord imposes some requirement which is ostensibly neutral but has a disproportionate effect on one sex or on race and which cannot be justified. The DDA undoubtedly aimed to cover this discrimination too. The White Paper, Ending Discrimination against disabled people, [...] made it clear [...].[12]

  The DDA has been amended, in relation to employment, to make it clear that indirect discrimination can be challenged (see Section 3A(5), DDA (as amended)). However, the scope of protection offered against discrimination on the grounds of disability in respect of the provision of goods and services, including access to community facilities and housing, appears to have been significantly narrowed. The UN Convention on Disability Rights requires:

    States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:

    (b)  To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities.

    (e)  To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise. (Article 4)

    States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

    In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. (Article 5)

    To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. (Article 9)

  The Government has explained that it is currently considering the House of Lords judgment in this case, but that it does not consider that the decision will affect the ability of the UK to ratify the Convention.

    8. We would be grateful if you could provide reasons for the Government's view that the House of Lords judgment in Malcolm does not have implications for ratification of the UN Disability Rights Convention.

    9. In particular, we would be grateful if you could explain the Government's view that the protection of the DDA, as interpreted by the majority in that case, is compatible with the obligations under the Convention to eliminate discrimination against people with disabilities, including through making reasonable accommodation for those disabilities (Articles 4—5) and the obligation to enable and facilitate equal and independent access to the community for people with disabilities (Articles 9, 19).

    10. Does the Government consider that this case significantly narrows the application of the DDA, when compared to the original intention of Parliament, in cases involving discrimination in respect of housing, goods and services? (If not, please explain the Government's view.)

    11. If so, does the Government plan to use the forthcoming Equality Bill to restore the original intention of Parliament?

OPTIONAL PROTOCOL

  On each occasion when we have asked the Government to explain its position on ratification of the Optional Protocol to the UN Disability Rights Convention, the Government has explained that the Ministry of Justice is conducting a review of the ratification of the Optional Protocol to UNCEDAW. The publication of the outcome of this review has been delayed for almost two years. We have written under separate cover to the Minister for Human Rights to ask when this review will be complete.

    12. We would be grateful if you could explain whether the Office for Disability Issues has identified:

    (a)  any barriers to ratification of the Optional Protocol to the UN Disability Rights Convention; and

    (b)  any benefits for people with disabilities in the United Kingdom which would result from ratification of the Optional Protocol.

    13. In the light of the Government's commitment to the negotiation of this Convention, and to early ratification, does the Government agree that there would be benefits in early UK involvement in the shaping of its monitoring processes, including through the development of the work of the Committee on the Rights of Persons with Disabilities under the Optional Protocol?

TIMETABLE

  I understand that the Government aims to have an Explanatory Memorandum on the Convention ready before the end of the current parliamentary session. We would be grateful to receive a copy of that Memorandum as soon as it is available.

    14. Please provide us with the current Government timetable for progress towards ratification.

28 August 2008







1   Cm 7378, Page 4 Back

2   HC Deb, 9 July 2008, Col 748 Back

3   Cm 7378, Page 4 Back

4   http://ec.europa.eu/social/main.jsp?catId=431&langId=en (Last accessed 23 July 2008) Back

5   First Disability High Level Group Report on Implementation of the UN Convention on the Rights of Persons with Disabilities, European Commission, Prepared for Ministerial Meeting, 22 May 2008. http://ec.europa.eu/employment_social/index/7003_en.html (Last accessed 28 August 2008) Back

6   Cm 7378, Page 4. See also HL Deb, 9 July 2008, Col 748 Back

7   Cm 7378, Page 5. Back

8   Clark v Novacold Ltd [1999] ICR 951 Back

9   Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] UKHL 43 Back

10   HL Deb, 9 July 2008, Col 749 Back

11   Ibid, paragraph 40 Back

12   Ibid, paragraphs 70-81 Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2009
Prepared 4 January 2009