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.
RESERVATIONS AND
INTERPRETATIVE DECLARATIONS
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.
WORKING WITH
THE EUROPEAN
COMMUNITY
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.
MALCOLM AND
THE DISABILITY
DISCRIMINATION ACT
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.
OPTIONAL PROTOCOL
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.
MONITORING COMMITTEE
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.
OTHER ISSUES
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.
CONCLUSION
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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