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

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

  Thank you for your letter of 28 August in respect of the UN Convention on the Rights of Persons with Disabilities.

  I am grateful for the support you have expressed for ratification of the Convention. You will be aware that the Government remains very much committed to this aim.

  As my Statement of 6 May demonstrated, the process involved in ratification is both a very complex and a very challenging one. It is my intention to make a further announcement on progress after Parliament has resumed in October. We are still considering the implications of the work that needs to be done and I will indicate my expectations for the timetable then. In the light of the position that I hope will then have been reached in respect of some of the key issues that you have identified but which are still currently outstanding—including the reservations/interpretative declaration package; the Optional Protocol and the European Commission's proposals for Community Conclusion—I will write to you again with a more detailed response to the questions that you have raised.


  My statement did, as you suggest, identify a number of areas where reservations or interpretative declarations had been under consideration, and following further discussions the positions of the Ministry of Defence, Home Office and the Department for Children, Schools and Families have been confirmed.

  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) and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (Convention Article 27 and others).

  The Department for Children, Schools and Families will wish to have an interpretative declaration to recognise that the general education system in the UK includes a range of provision, including mainstream and special schools (Convention Article 24(2)(a)). The Department for Children, Schools and Families also want a reservation to ensure that those disabled children whose educational needs are best met through specialist provision which may be some way from their home can continue to receive it (Convention Article 24(2)(b)).

  The Home Office will wish to have a reservation in respect of Convention Article 18.1 and an interpretative declaration in respect of 18.2, These concern immigration and nationality. The UK has a comprehensive set of rules and procedures for governing entry and stay in the UK and for the acquisition of citizenship. These are kept under frequent review and are changed from time to time as needed to ensure, for example, integrity of UK borders. The Government believes that the UK must retain such flexibility (and made a reservation to this effect when ratifying the Convention on the Rights of the Child). The reservation and interpretative declaration are intended to ensure that this flexibility is retained, and will make clear that the Convention does not give disabled people additional rights in respect of liberty of movement, freedom to choose their residence and nationality.

  My Statement referred to a number of other Departments which had identified areas where it was not clear whether or not reservations or interpretative declarations would be necessary. Detailed discussions about these areas have continued. I am pleased to be able to report that possible compatibility issues in respect of choice of residence and aspects of mental health legislation have been resolved and reservations and interpretative declarations will not be required. Discussions are continuing concerning of Article 12.4 in respect of measures relating to the exercise of legal capacity and Article 30(4) in respect of cultural services (interpretative measures).

  Any package of reservations and/or interpretative declarations will, of course, need to be agreed across Government before it is possible to lay the necessary Explanatory Memorandum for ratification.

  The final package of reservations and interpretative declarations will, In effect, constitute the published outcome of the review of the compatibility of domestic legislation, policies, practices and procedures which has been undertaken. Individual Departments and the Devolved Administrations have been responsible for deciding upon their own positions. However, the Office for Disability Issues has co-ordinated this, and has stressed the need for Departments and the Devolved Administrations to have careful regard to the need for any reservations and interpretative declarations to be compatible with the object and purpose of the Convention. I will write to you with details of the rationale behind the reservations/interpretative declarations that it is proposed that the UK should enter when the final package is announced.


  As you will be aware, the European Commission's proposals for Conclusion (ie ratification) of the Convention and the Optional Protocol have been long awaited and through colleagues in the Foreign and Commonwealth Office and directly we have sought to engage with the Commission both as to the timing of the proposals and arrangements for its consideration by Member States post-publication. These have yet to be formally published, although we anticipate that this will happen shortly and I will ensure that copies are sent to you.

  The indications are that the legal basis for Conclusion and the competence (both shared and exclusive) claimed by the European Commission will require very careful and detailed scrutiny across Government, as will the overlap of Member State and EU monitoring and reporting processes, and the position in respect of the Optional Protocol. The Government will need to consider the implications of the Commission's proposals for UK ratification, and in particular, will want to consider whether the Commission's competence claims have any specific implications for the package of any domestic reservations and interpretative declarations.


  We do not underestimate the significance of the House of Lords decision in Malcolm In overturning previously established case law on disability related less favourable treatment. We are actively considering whether, and if so what, legislative change might be needed. We are not yet in a position to make any proposals, though we would expect to consult on any proposals prior to their inclusion in the Equality Bill.

  In the meantime, the Government is fully aware of the obligations imposed in particular by articles 5.2 and 5.3 of the Convention, which you quote in your letter. Our view is that our legal framework against disability discrimination remains robust, despite the Malcolm decision. In particular, the judgement (which is based on facts which predate the coming into force of the Disability Discrimination Act 2005) does not affect the duty to make reasonable adjustments for disabled people which the Disability Discrimination Act places on, inter alia, service providers, employers and controllers of premises.

  Furthermore, we are planning to improve and simplify protection against discrimination for disabled people through the Equality Bill, for example by the introduction of direct discrimination into areas beyond employment and adopting a more consistent approach to the threshold at which the duty to make reasonable adjustments arises.


  As the Committee knows, the UK does not generally accede to rights of individual communication/petition in international human rights treaties, whether expressed as Optional Protocols or in other ways. Traditionally the UK has seen little practical benefit in such mechanisms in advancing the human rights of people within UK jurisdiction. Decisions of the relevant UN Committee are not legally binding and are not, therefore, equivalent to judicial decisions.

  The Government is, therefore, considering the Optional Protocol to the UN Convention on the Rights of Persons with Disabilities against this backdrop and in the light of the review being conducted by the Ministry of Justice into the accession to the similar Protocol to the Convention on the Elimination of all forms of Discrimination against Women. That Review is drawing to a conclusion and I hope that the Government will be able to make a decision about the disability Optional Protocol soon.

  I should emphasise that if the Government does not accede to the Protocol this should not be taken to imply that our commitment to human rights for disabled people is somehow reduced. We must still abide by the provisions of the Convention when we have ratified it and we must publicly demonstrate that we have done so through the reporting and monitoring system set up under the Convention.


  As the Committee is aware, the Convention provides for the establishment of a UN Committee on the Rights of Persons with Disabilities—a body of independent experts tasked with reviewing States' implementation of the Convention. These experts will be nominated by States Parties to the Convention and are elected by a Conference of States Parties. The UK will be able to participate in the election process after we have ratified the Convention.

  The Committee should be established within six months of the Convention coming into force and I understand that the first Conference of States' Parties, at which the election of Committee members by States which have ratified the Convention will happen, is now scheduled to take place in New York on 3 November.

  The Convention also provides for the Committee to be expanded from 12 to 18 members when (in addition to the 20 ratifications that were needed for the Convention to come into force) a further 60 states ratify. As at 15 September, 37 countries had ratified the Convention.


  You have asked about potential barriers to ratification, and will wish to be aware of two further issues.

  First, we are considering the need for specification of the Convention under Section 1 (3) of the European Communities Act 1972. We will be consulting on the need and implications of this with other Government Departments. If required, specification will be by an Order in Council, approved in draft by a resolution of each House.

  Second, Article 33 of the Convention requires that "States Parties shall, in accordance with their legal and administrative systems, maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention". We have agreed with the Equality and Human Rights Commission, the Scottish Human Rights Commission, the Northern Ireland Equality Commission and the Northern Ireland Human Rights Commission that they will be part of this framework. In the case of Scotland, this has required the Scottish Executive to lay an Order before the Scottish Parliament to specify the Convention for the purposes of section 9 of the Scottish Commission on Human Rights Act 2006.

  This will allow the Scottish Human Rights Commission to conduct inquiries into the policies and practices of public authorities and institutions where the subject matter of the inquiry is about whether the human rights contained in the Convention are being respected. The draft Order will be considered by the Scottish Parliament's Subordinate Legislation Committee and then the Justice Committee before it is laid before the full Scottish Parliament for approval, after which it would go to the Privy Council.


  I very much welcome the Committee's continued interest in this Convention and look forward to working with you constructively towards ratification. The Government's stated aim is that "By 2025, disabled people in Britain should have full opportunities and choices to improve their quality of life, and will be respected and included as equal members of society" (Life Chances Report—Prime Minister's Strategy Unit 2005). Ensuring that disabled people can enjoy their human rights on an equal basis with non-disabled people is an essential part of achieving that vision.

2A September 2008

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