Memorandum submitted by TUC
1. SUMMARY
1.1 The TUC represents 58 trade unions with
six and a half million members working in all sectors. The TUC
has a democratic representative structure enabling disabled workers
to express their views and to advise the TUC on all aspects of
policy relating to disability.
1.2 The TUC supported the process of drafting
the UN Convention on the Rights of Persons with Disabilities through
involvement in the advisory group of disabled people who took
part in the negotiations leading to its completion, and welcomed
it as an historic milestone in the establishment of human rights
for disabled people around the world. The UK Government's early
signing of the Convention was welcomed. The Government's commitment
to ratify the Convention by the end of 2008 is of great importance
but the attachment of reservations is neither useful nor necessary.
1.3 We therefore urge Ministers to ratify
the Convention and the Optional Protocol without reservations
as soon as possible.
THE CASE
FOR RATIFICATION
WITHOUT RESERVATION
2. IMPACT AND
MESSAGE
2.1 The UN Convention on the Rights of Persons
with Disabilities is a step of enormous significance for disabled
people everywhere, including in the UK. The rights it enshrines,
and the message it sends out by its very existence, represent
the first global recognition of the human rights of a very large
number of people characterised most often by exclusion and/or
second-class status. The Convention's approach to disability is
rooted in the understanding that disabled people should be equal
members of society with the same human rights as all others, not
that they are to be seen as passive objects, recipients of charity
with all that entails in terms of status and popular attitudes.
In that critical respect, the Convention matches the UK Government's
vision, expressed in the objective of achieving equality for disabled
people by 2025—a vision shared by the TUC. The adoption
of the means to achieve this ambitious objective must, logically,
form part of the practical plans for implementation and in that
respect too the TUC believes that the UK is among a small number
of states that have taken the lead in introducing the material
steps necessary (in most but not all policy areas) to advance
towards disability equality. The consequence of this leading role
ought to be recognition of the importance of setting an example
to other states.
2.2 Specifically, many positive steps have
already been taken over the last decade with the several improvements
to the Disability Discrimination Act, and the commitment given
to maintain and improve current levels of legal protection against
disability discrimination through the Equality Bill. In addition,
it is understood that the Government will act to reverse the retrogressive
impact of the House of Lords decision in Malcolm, and the TUC
will respond positively to the forthcoming consultation on this
question. In all these areas, the UK Government has shown a continued
understanding of and commitment to the vision laid out in 2005
and reflected in the 2025 target date.
2.3 But the question of perception is of
great importance. Whereas early UK signature of the Convention
sent out a powerful message to disabled citizens that their government
recognised and supported its message of inclusion, equality and
human rights, a much greater significance attaches to ratification.
There is already disquiet that while 37 states have ratified the
Convention to date, including several in Europe, the UK is seen
to delay and to consider reservations. The Minister's existing
commitment that ratification will take place before the end of
December is most welcome, but it is a matter of concern that either
this date might be delayed, or else that it will be met, but that
in the process, reservations or interpretative declarations will
have been appended that give a different message to disabled people
in this country: the message that yes, the UK believes you have
human rights like everyone else, but unlike disabled people in
other states, the UK declines to recognise them in some areas.
2.4 Further, the signal that early signature
sent to other countries that they too should support the Convention
would be undermined if the UK delayed further, or placed conditions
upon, its ratification. This would represent a retreat from the
vision of equality for disabled citizens both in terms of perception,
but also in terms of reality. It is also not necessary.
3. NO RESERVATIONS
ARE NECESSARY
3.1 The TUC understands that the Government
is considering either reservations or interpretative statements
in several areas as a result of requests from departments. It
further understands that following detailed consideration, several
of these have been withdrawn or recognised not to be needed. For
the reasons advanced above, the TUC view is that no reservations
or interpretative declarations should be attached to ratification.
3.2 Article 46 of the Convention allows
states parties to fulfil their obligations under the Convention
over time. Therefore the only possible reason for requiring reservations
would be a determination that the UK does not intend, even over
time, to comply with all the obligations of the Convention. If
that were true, the conclusion is that the UK should not have
become a party to the Convention at all, as it must be the case
that signing it indicated an acceptance that some of the obligations
thereby assumed must lead to changes in law or practice within
the UK. The Convention itself states (article 46(1)) that reservations
incompatible with the "object and purpose of the present
Convention shall not be permitted". However, if (as the TUC
believes) that is not the starting point for the reservations,
but rather that certain current laws and practices do not comply
with Convention obligations, then it would appear that the UK
is adopting an extremely conservative approach, quite in contrast
to numerous other states parties including many that are in a
similar position to the UK that have decided that they can ratify
the Convention without reservations.
3.3 It is understood that a reservation
is wanted in respect of the armed forces. The TUC has long stood
by the position argued previously by the Disability Rights Commission,
and now by the Equality and Human Rights Commission, that the
current legal blanket ban should be removed.
The critical point in this argument is that
even without the ban 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.
The TUC believes that the call for this reservation
may originate in a conservatism comparable, historically, with
the similar ban on employing lesbian, gay or bisexual people.
The MOD supported that ban at the time although there have been
no reports of any of its argued bad consequences having transpired
subsequent to its removal.
3.4 The other significant area, where interpretative
declarations are sought, concern education and the commitment
in article 24 (2a) that "persons with disabilities are not
excluded from the general education system" and that (article
24(2b)) "Persons with disabilities can access an inclusive
|education|.", because of the continued existence of special
schools. It is understood that discussion is ongoing with the
DCSF over why such declarations are necessary, given the allowance
for progressive implementation allowed by Article 46.
The TUC was involved in the consultations that
led to the Special Educational Needs and Disability Act 2001.
This legislation affirmed that the overriding objective was to
achieve inclusive education for disabled children, while recognising
that for a small minority a specified range of circumstances might
require education through segregated (special) schools. However,
the long-term objective was understood to be the achievement of
comprehensive inclusive education. Apparently, reaching that point
was dependent on sufficient resources being made available.
Therefore there is no need for Interpretative
Declarations around these articles, given compliance with the
commitment to inclusive education as the means to achieve it become
available.
4. OPTIONAL PROTOCOL
The Optional Protocol offers the means for individuals
to seek redress under the Convention and the TUC supports UK citizens
having the means to enforce the rights that the Government has
signed up to. Not to ratify the Protocol at the same time as the
Convention would also signal a retreat from the principles underlying
both.
5. OTHER ISSUES
The word limit precludes explaining the TUC
concern over the Government's involvement of disabled people in
the current process.
The appointment of the EHRC as an independent
monitoring body for the Convention is welcome.
29 October 2008
| 
