Memorandum submitted by the Equality and
Human Rights Commission
1. INTRODUCTION
1.1 The Equality and Human Rights Commission
(EHRC) is an independent advocate for equality and human rights
in Britain. The Commission aims to reduce inequality, eliminate
discrimination, strengthen good relations between people, and
promote and protect human rights.
1.2 The Commission incorporates a statutory
decision-making Disability Committee with extensive powers.
1.3 The Commission has accepted the UK Government's
proposed designation of EHRC as an "independent mechanism"
in Britain, tasking the Commission with "promoting, protecting
and monitoring" implementation of the United Nations Convention
on the Rights of Persons with Disabilities (CRPD)in accordance
with Article 33 of CRPD.
1.4 In discharging its responsibilities,
the Commission will work in partnership and collaboration, with
disabled people's organisations including capacity building, with
the Scottish Human Rights Commission, the Northern Ireland Human
Rights Commission and the Northern Ireland Equalities Commission.
1.5 The Commission will engage in international
cooperation including through the UN, though informal relationship
building with National Human Rights Institutions (NHRI's) and
with others such as the European Disability Forum.
1.6 The Commission believes that the CRPD
offers a major opportunity to achieve a paradigm shift in the
way disabled people are perceived and treated across the world,
from objects of charity and welfare to equal human beings with
the full set of rights that status confers. Given the UK's progress
on disability rights, it should use the opportunity of CRPD to
lead by example internationally by ratifying without further delay.
2. KEY POINTS
The Commission wishes to see the
Convention ratified by the UK at the earliest opportunity. Already,
delays have cost the UK an opportunity for early and important
representation on and influence in relation to the UN Expert Committee
on CRPD.
The Commission does not believe reservations
or interpretative declarations are appropriate in ratifying the
Convention, as evidenced by the decisions or plans of Governments
of similarly placed countries to Britain, including Australia,
New Zealand, Austria, France and Germany to ratify without them.
The UK's decision to express reservations
and interpretative declarations is undermining its deserved position
internationally as a leader in the field of disability rights
and has the effect of depressing the impact of the Convention
globally.
The Commission believes Government
has failed to be transparent and to properly consult disabled
people and others concerning proposed reservations and interpretative
declarations. This is also not consistent with enabling the Commission
to fulfil its role as the independent national monitoring body
and monitoring the implementation of the Convention The Commission
believes Government should publish for consultation its assessment
of the UK's compliance with the Convention articles, the draft
text of the reservations and interpretative declarations, and
its rationale for expressing all reservations and interpretative
declarations.
The Commission strongly believes
the UK should ratify the Optional Protocol which would allow individuals
who allege that their rights under the Convention have been breached
to petition the CRPD Committee and to ask the Committee to give
its opinion. This would also be consistent with the EU proposal
to for the European Community to ratify the Optional Protocol.
The Commission is concerned about
the effectiveness of arrangements concerning Convention Article
33 including the absence of robust focal points and coordinating
mechanisms in the devolved administrations, inadequate resourcing
of the respective NHRI's of Scotland and Northern Ireland and
no defined action to increase the capacity of disabled people's
organisations to participate in the promotion and monitoring process.
The Convention reflects and promotes
further a paradigm shift in the way disability is perceived and
dealt with in public policy from a primary focus on and preoccupation
with health and welfare to one of human rights. This shift should
be reflected in the choice of focal point and coordination mechanism
within Government. Whilst the Commission believes the Office for
Disability Issues provides the best focal point and point of coordination
with other delivery agents, assurances are sought that in executing
this task it is genuinely independent of interference by its parent
Department of Work and Pensions.
The Commission believes Government
should develop and consult with a range of stakeholders on an
action plan for implementation of the Convention and share this
best practice internationally. The Commission, along with other
parts of the promotion and monitoring framework, should monitor
implementation of the Action Plan.
The Commission also believes the
UK Government should play a more active role in UN studies, for
example the current study of the Office of the High Commissioner
for Human Rights on key legal measures for the ratification and
effective implementation of the Convention on the Rights of Persons
with Disabilities.
3. RATIFICATION
Reservations and Interpretative Declarations
3.1 The Commission wishes to see the Convention
ratified by the UK government at the earliest opportunity.
3.2 The Australian Human Rights and Equality
of Opportunity Commission deliberately brought forward ratification
in order to secure a place on the first UN Expert Committee on
CRPD. It is unfortunate that the UK has missed the opportunity
for representation on the Committee at this important early stage.
3.3 The Commission acknowledges and welcomes
the progress made to date by Government, and in particular the
leadership of the Office for Disability Issues in deciding not
to pursue a series of proposed reservations and interpretative
declarations.
3.4 The Commission's Disability Committee
does not believe reservations or interpretative declarations are
a necessary for ratification. This belief has been re-affirmed
in the light of several countries including New Zealand, Australia,
Austria, Germany and France ratifying or planning to ratify without
reservation. The Commission highlights these countries given their
broadly similar social and economic position, legislative and
public policy frameworks and pressures from sometimes conflicting
stakeholders over matters such as education policy.
3.5 The Commission has proposed to the United
Nations High Commissioner that it should consider carrying out
a comparative analysis of the rationale underpinning the different
approaches of States Parties to ratification and the use of reservations
or interpretative declarations.
3.6 For example, like the UK Germany, France,
Austria, New Zealand and Australia all have education policies
which promote the progressive realisation of educational inclusion,
whilst maintaining special schools as part of the general education
system. However, whereas each of these countries has concluded
that their legislation and approach is compatible with the framework
provided by Article 24, the UK has not and wishes to enter both
a reservation and an interpretative declaration. The UK does not
appear to have taken into account the overwhelming conclusion
of other Governments in coming to its position and the Commission
suggests that the UK Government is allowing over cautiousness
and a failure to acknowledge the emphasis on progressive realisation
to damage its international standing.
3.7 The Commission believes the time has
come to lift the exemption of the armed forces from the Disability
Discrimination Act in the light of a positive change in attitudes
towards equality and diversity in the military and this possibility
has been raised with Ministers at the MOD. The previous Secretary
of State for Defence Rt Hon Des Browne committed to asking officials
to reconsider the position during his last meeting with the Commission
and this is an area we are pursuing with the new Secretary of
State Rt Hon John Hutton. Were the exemption lifted in the Single
Equality Act, this would enable Government to revoke its proposed
reservation relating to the employment provisions of the Convention
in the next few years.
3.8 Whilst the Commission has not been appraised
of the precise nature of the Home Office's proposals for reservations
and interpretative declarations in relation to Article 18 of the
ConventionLiberty of movement and nationalitythe
Commission is concerned that a reservation in relation to Article
18(1)[42]
of the Convention may be incompatible with the principle of non-discrimination
under article 5 of the Convention and the basic purposes of the
present Convention (see Article 46 (1)).[43]
3.9 The Commission does not believe that
Article 18 affects the right of Member States to regulate who
and in what circumstances a person gains citizenship or the right
to enter the United Kingdom. Rather it seeks to ensure that in
exercising immigration functions, Member States do not discriminate
against persons based on any disability. A reservation is therefore
unnecessary. In addition, we note that in relation to the Convention
on the Rights of the Child, the UK government recently announced
that it will be withdrawing an equivalent reservation regarding
immigration under article 22 of that Convention.[44]
The Commission believes the government is acting inconsistently
when it is going to withdraw an equivalent reservation under another
UN Convention.
3.10 The Commission finds the lack of transparency
and consultation by Government concerning proposed reservations
and interpretative declarations deeply regrettable and out of
keeping with the Convention's emphasis on disabled people's involvement
at all levels as required by article 4(3) of the Convention. Whilst
the Commission has been appraised of the general detail of other
proposed reservations and interpretative declarations the confidential
nature of this information has had an extremely limiting effect
upon the Commission's ability to act on it. This is also not consistent
with developing our role as the national monitoring body. We cannot
properly and fully fulfil our role in monitoring the implementation
of the Convention if we are not provided with full details of
the proposed reservations and interpretative declarations.
3.11 The Commission therefore proposes that
the outcome of the Government's review of compatibility of domestic
legislation, policies, practices and procedures, including proposed
reservations and interpretative declarations, actions plans and
plans for promotion is published for consultation prior to ratification.
3.12 Finally, we note that whilst the Commission's
Disability Committee is opposed to reservations and interpretative
declarations, it does not favour opposing indefinitely ratification
on these grounds and wishes to see ratification at the earliest
opportunity. A statement of the Committee's position is included
in the Appendix.
The Optional Protocol
3.13 The Commission believes the Optional
Protocol to be an important dimension of the Convention and urges
the Government to ratify it, especially in the light of the trial
run with CEDAW. The Optional Protocol would allow individuals
who allege that their rights under the Convention have been breached
to petition the CRPD Committee and to ask the Committee to give
its decision. As with all international treaty mechanisms any
individual will have had to exhaust any domestic national processes
before doing so (this rule usually results in the fact that the
numbers taking up cases using international mechanisms remains
small and that the domestic law is able to develop properly).
This will usually mean using any complaints mechanisms and/or
seeking redress in the courts. As the Convention will not become
part of domestic law this will mean taking proceedings under any
domestic laws that might create similar rights (including, of
course, the Disability Discrimination Act).
Adopting the Optional Protocol is important
because:
for the rights under the Convention
to be meaningful they need to be accompanied by a remedy;
it is likely that however careful
government and public sector is to ensure compliance they are
unlikely to get it 100% right and where there are omissions individuals
should be able seek redress;
allowing cases to go to the Committee
will ensure that any systemic or policy issues are highlighted;
this will help the UK to be seen
as an exemplar of good practice;
actual real examples will illustrate
to policy makers, NGOs and the wider public why the Convention
is important;
the opinions from the Committee will
create greater understanding of how the Convention should be developed
and interpreted and the UK is in a good place to help with this
(the Committee will be able to praise examples of good practice
as well as to help to develop further any inadequate policies);
it will allow the domestic courts
to start to take account of the Convention once the Committee
starts being asked for its views of decisions from the UK courts;
and
it is difficult to see any arguments
against granting this extra right to people with disabilitiesafter
all if the government is confident that the UK laws and policies
comply then there will be very few successful cases.
EU developments regarding the Convention
3.14 Whilst the Commission recognises and
respects the Government's desire to align with the European Union
on ratification of the Convention, it is clear that doing so is
now a primary cause of delay. We would wish to know what degree
of tolerance the UK Government has for delaying ratification past
its target of the "end of 2008" in order to work within
the wider EU's timetable for conclusion.
3.15 In September 2008 the European Commission
released its proposals for a Council Decision to conclude the
Convention and the Optional Protocol.[45]
We have not had an opportunity to consider in detail the implications
of the proposals, particularly those where there is an overlap
between the competences of the EU and Member States.
3.16 However we wish to point out several
important developments in the proposals. Firstly, in relation
to the ratification of the Convention the proposal contains a
reservation concerning article 27.1 of the Convention and employment
of disabled persons in the armed forces. The reservation is proposed
in light of the exception under article 3(4) of the Employment
Directive 2000/78/EC which provides Member States with the discretion
to legislate such that the Directive does not apply to employment
of disabled persons in the armed services. For the reasons stated
above (3.7), we do not believe that the exception relating to
the armed forces is appropriate any longer, at least in relation
to combat forces. We will consider making submissions to the European
Commission on removing or amending the article 3(4) exception
when the Directive is next reviewed in 2010. In any event, as
article 3(4) is in any event permissive and not obligatory, we
do not believe that a reservation by the UK government to the
Convention is necessary.
3.17 Secondly we are pleased that the European
Commission has proposed to adopt the Optional Protocol, as previously
it indicated that it would not. The UK government should follow
the example of the European Commission and adopt the Optional
Protocol.
4. NATIONAL IMPLEMENTATION
AND MONITORINGTHE
GOVERNMENT'S
ROLE
4.1 The Commission is pleased that the Office
of Disability Issues (ODI) will be the primary focal point and
coordination mechanism, as required by Article 33 of the Convention.
4.2 Whilst disability is relatively well-established
as an issue of equality and human rights in the UK, it is still
important that the location of the focal point and coordination
mechanism in Government aids rather than challenges the paradigm
shift from a health or social welfare perspective to one of human
rights and equality. Currently the ODI is housed within the Department
for Work and Pensions. Whilst it may not be desirable or practicable
to change this arrangement in the immediate term, a statement
of independence of DWP, especially in respect of work connected
with the Convention, would be desirable.
4.3 The Commission is concerned to ensure
that robust focal points and coordination mechanisms are established
in the devolved administration. This is especially important given
the increasingly distinct political and policy frameworks in each
country of Britain and the UK.
4.4 The Commission believes the ODI should,
working with Government departments, devolved administrations,
disabled people's organisations and others, produce an action
plan for implementation of the Convention. The duties on Secretaries
of State to produce reports outlining progress on disability equality
in their policy sectors and to detail the action they propose
to take to deal with barriers or lack of progress provide an ideal
opportunity to kick-start this process in December 2008, as does
the development by the Office of Disability Issues of a "road-map"
towards delivery of the Government's goal of equality for disabled
people by 2025. The Commission is particularly pleased to note
the Department for International Development's proactive approach
to the Convention.
4.5 In delivering our responsibilities under
Article 33, the Commission and other "independent mechanisms"
along with disabled people's organisations should promote and
monitor implementation of the Action Plan as well as the Convention
generally.
4.6 The Commission's work on the Disability
Discrimination Act Secretary of State duties has revealed widespread
gaps in statistics and data concerning disability. The Commission
welcomes the ODI's efforts, in partnership with Government Departments
to plug this gap, which will be essential for the effective implementation
of the Convention, especially Article 31.
5. NATIONAL IMPLEMENTATION
AND MONITORINGFRAMEWORK
FOR PROMOTING,
PROTECTING AND
MONITORING IMPLEMENTATION
OF THE
CONVENTION
5.1 The Commission is pleased to be designated
by Government as an independent mechanism alongside the Scottish
Human Rights Commission, Northern Ireland Human Rights Commission
and Northern Ireland Equalities Commission.
5.2 The Commission takes this responsibility
seriously. The Commission's Disability Committee agreed the Commission's
broad approach to this task at its meeting in September (attached
in the appendix).
5.3 The Commission is particularly mindful
of its obligation to collaborate with disabled people and their
organisations in executing its role. The Commission's Disability
Committee will play a leading role in this respect, including
in relation to capacity building.
5.4 The Government should be able to point
to the Commission as evidence of its implementation of the Convention,
but doing so requires that Government respects the Commission's
statutory independence and the difference between the Commission's
role and responsibilities and its own. Whilst the Commission will
from time to time work closely with Government on shared objectives
relating to the Convention, a clarity must be maintained about
those responsibilities which are the Commission's and those which
are Government's.
6. NATIONAL IMPLEMENTATION
AND MONITORINGENGAGING
CIVIL SOCIETY
AND DISABLED
PEOPLE'S
ORGANISATIONS
6.1 The Commission has already expressed
its disappointment at the lack of consultation with disabled people
and their organisations concerning proposed reservations and interpretative
declarations. This is fundamentally at odds with the ethos of
the Convention itself and the expressed objective of the UK Government
to pioneer new approaches to involving disabled people in policy
making.
6.2 The Commission expects the Government,
in delivering its responsibilities under Article 33(3) to carry
out specific work to build the capacity of disabled people's organisations
to participate fully in the monitoring process. The Commission
will also explore options for supporting and building the capacity
of disabled people's organisations.
6.3 The Commission also expect the Government
to lead on promoting awareness amongst disabled people of the
Convention.
APPENDIX 1
POSITION STATEMENT BY THE EQUALITY AND HUMAN
RIGHTS COMMISSION'S (EHRC) DISABILITY COMMITTEE CONCERNING THE
UK'S RATIFICATION OF THE UNITED NATIONS CONVENTION ON THE RIGHTS
OF PEOPLE WITH DISABILITIES
The EHRC Disability Committee considers the
United Nations Convention On The Rights Of People with Disabilities
to be a critically important contribution towards the equal treatment
and human rights of disabled people across the world.
The Disability Committee believes that the Convention
incorporates many of the aspirations, commitments and tangible
actions required to deliver disability equality and human rights
in the United Kingdom. The Committee is therefore of the view
that the UK Government should ratify the Convention at the earliest
possible opportunity. We urge the Government to ratify the Convention
by the close of 2008, in line with the ambition to do so set out
by Minister for Disabled People, Anne McGuire MP.
The Convention is only likely to make a real
difference if its implementation is actively monitored and pursued.
The Convention is unique in requiring Governments
to designate one or more "independent mechanisms" as
part of a framework to promote, protect and monitor its implementation.
The EHRC has been approached to be a part of this framework in
Britain. We are honoured and enthusiastic to accept this undertaking.
The active participation of disabled people
and their organisations, both independently and in collaboration
with the Commission, will be critical to making the Convention
a success. The Commission is committed to working with disabled
people and will over the coming year explore with disability stakeholders
how we can work together most effectively.
The Disability Committee is aware that a number
of government departments have declared that they have concerns
about particular elements of the convention and wish to express
either "reservations" or "interpretative declarations"
in relation to particular articles.
The Disability Committee is of the opinion that
neither "reservations" nor "interpretative declarations"
are necessary prerequisites for ratifying the Convention. The
Committee will therefore be working with the Government to ensure,
as far as they are able, that the current proposed reservations
or interpretive declarations are withdrawn.
The possibility cannot be ruled out however,
that the Government will reach the target date for ratification
at the end of 2008, and remain insistent on some reservations
and interpretive declarations. In this situation, the Disability
Committee position is that early ratification should take precedence
over a small number of reservations and interpretive declarations,
providing that explicit plans can be put in place to regularly
review them and to withdraw them if it can be shown they are no
longer necessary or relevant.
Should the Government ratify with reservations,
the Disability Committee will formally request from Government
written justification and a plan of action concerning how Departments
intend to address the issues underlying the reservations or interpretive
declarations.
APPENDIX 2
EQUALITY AND HUMAN RIGHTS COMMISSION
Disability Committee10 September
2008
Title: Equality and Human Rights Commission's
approach to promoting and monitoring implementation of the UN
Convention on the Rights of Persons with Disabilities in Britain
and the UK
Author: Neil Crowther
Purpose: To set out proposals for discussion
and agreement by the Disability Committee
1. BACKGROUND
1.1 The Convention on the Rights of Persons
with Disabilities ("CRPD") was opened for signature
on 30 March 2007 and has already been signed by over 100 States.
1.2 The Minister for Disabled People, Anne
McGuire, has signaled her desire for the UK to ratify the Convention
by the close of 2008.
1.3 In order to ratify, "States Parties"
are required to satisfy Article 33 of the Convention:
Article 33National implementation and
monitoring
1. States Parties, in accordance with their
system of organization, shall designate one or more focal points
within government for matters relating to the implementation of
the present Convention, and shall give due consideration to the
establishment or designation of a coordination mechanism within
government to facilitate related action in different sectors and
at different levels.
2. 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.
When designating or establishing such a mechanism, States Parties
shall take into account the principles relating to the status
and functioning of national institutions for protection and promotion
of human rights.
3. Civil society, in particular persons with
disabilities and their representative organizations, shall be
involved and participate fully in the monitoring process.
1.4 This is much more specific than the
general obligations clauses contained in previous human rights
instruments, which require States to use "all appropriate
means, including particularly the adoption of legislative measures"
(ICESCR) or to "to adopt such legislative or other measures
as may be necessary to give effect to the rights recognized in
the present Covenant" (ICCPR). The CRPD goes further than
previous human rights instruments in reflecting the truth of the
important observation made (by Rene Cassin) during the drafting
of the Covenants, that
"it would be deceiving the peoples of the
world to let them think that a legal provision was all that was
required ... when in fact an entire social structure had to be
transformed".
1.5 The EHRC has accepted the Office of
Disability Issues proposal that it become an "independent
mechanism" in relation to the Convention.
1.6 In the UK, this role will be shared
with the Scottish Human Rights Commission, Northern Ireland Human
Rights Commission and Northern Ireland Equality Commission. It
will be important to co-ordinate activity between the Commissions,
and other bodies such as the Children's Commissioners.
1.7 The Office of Disability Issues will
provide both a focal point and co-ordination mechanism within
Government. Focal points in the Scottish and Welsh Governments
would be beneficial.
1.8 In undertaking the role of independent
mechanism it is critical that the Commission takes account of
and seek to ensure Government takes account of Article 4.3 of
the CPRD:
In the development and implementation of legislation
and policies to implement the present Convention, and in other
decision-making processes concerning issues relating to persons
with disabilities, States Parties shall closely consult with and
actively involve persons with disabilities, including children
with disabilities, through their representative organization.
1.9 The Australian Human Rights and Equal
Opportunities Commission has produced helpful advice for National
Human Rights Institutions (NHRI's) concerning the practical implications
of acting as an independent mechanism to "promote, protect
and monitor" implementation of the Convention:
Promotion of implementation is not identical
with promotion of public awareness and acceptance of rights of
people with disability, obligations on which are set out in Article
8 and regarding which NHRIs will also clearly have a role (although
as with other aspects of the Convention it is recommended that
this role not be seen as one solely for an NHRI).
Promotion of implementation involves a strategic
rather than a purely informational role although clearly
necessary strategies would include identification of, and achieving
measures to address, information needs in achieving implementation
(for example, information needs for employers or education providers
in making reasonable adjustments, or information needs for consumers
with disability in seeking to purchase accessible products).
Determining approaches to promotion of implementation
appears to require:
Detailed analysis of each of the
obligations set out in the Convention by reference to each of
the rights recognised.
Consideration in national circumstances
of implementation methods and tools available to government and
other agencies with potential roles in implementation.
Determination of strategies for promoting
action by these agencies.
In some contexts promotion of implementation
could involve:
Governments requiring regulatory
agencies responsible for particular areas to incorporate measures
into their regulatory regimes (or improve existing measures within
those regimes) to achieve or move towards compliance with the
CPRD (for example, inclusion of disability access requirements
in regulatory regimes for buildings, transport, information and
communications technology, consumer electronics, etc); or
NHRIs persuading relevant regulators
to take such measures; and
NHRIs negotiating agreed strategies
for action by other agencies or organisations over a period of
timeincluding through NHRIs using, and/or agreeing not
to use, enforcement powers where available to them.
Clearly, there are strong connections between
promotion of implementation and issues of monitoring, reporting
and data collectionit is not possible to know whether we
are succeeding in promotion of implementation unless we know where
we are starting from and where we have got to.
NHRIs acting alone are likely to lack the resources
and capacity to undertake comprehensive monitoring of current
and future levels of compliance with the CPRD. While monitoring
by NHRIs can be expected to make an important contribution to
effective and accountable implementation it may likewise be important
for NHRIs to make clear to their governments and civil society
organisations that monitoring by NHRIs (in particular, within
their existing resources and capacities) should not be seen as
sufficient fulfilment of the requirements of article 33, but rather
as indicated by article 33 should be approached as part of a broader
framework.
It may again be useful to emphasise that monitoring
in the context of the CPRD does not involve only monitoring of
(hopefully rare) incidents of breaches which can be approached
as exceptional cases. While, clearly, national circumstances vary
widely on some issues covered by the CRPD it should be equally
clearincluding from the input of disability representatives
worldwide during the drafting processthat in all States
the starting position is that majorsocial structures really do
have to be transformedphysical and communications environments,
education and employment, housing and accommodation and so onand
that monitoring these processes will also involve major tasks.
NHRIs currently will have different areas and
levels of capacity and experience in monitoring relevant to various
areas covered by the CRPD.
Some for example may have more experience in
monitoring human rights in institutional settings such as prisons
which may be transferable to monitoring human rights in relation
to institutional settings relevant to the CRPD, as well as being
applicable to monitoring human rights of people with disability
themselves in the criminal justice system. Other NHRIs whose jurisdiction
and experience has been based on narrower models of anti discrimination
law may have less experience and capability in this respect.
Similarly, some may have had more detailed involvement
in issues of physical or communications access to date than others;
and so on.
Some NHRIs may have experience with development
and application of human rights indicators and of the conduct
of human rights audits which could be usefully applied to monitoring
of implementation of the CRPD, and shared with other NHRIs whose
experience is more concentrated in investigation and resolution
of individual complaints and/or litigation based enforcement.
However broad the range of experience and capability
of NHRIs may be, taking into account the range of issues covered
by the Convention it appears likely to be most effective to approach
monitoring, as Article 33 does, as being performed through a framework
which includes NHRIs as well as other relevant agencies and mechanisms,
rather than through a NHRI being seen as solely responsible.
Participation in, or initiation of, discussions
with governments, with agencies with relevant responsibilities,
and with disability representative organisations on the most effective
roles for different organisations within a framework appears to
be an early task for NHRIs to undertake.
The same point made above in relation to promotion
and monitoringthat NHRIs have important roles as part of
a framework for implementation of the CRPD rather than being appropriately
assigned sole responsibilityapplies even more obviously
regarding measures for protection of rights.
Many of the civil and political rights restated
or expanded upon in the CRPD will in all States be covered by
legislation which is primarily the responsibility of mechanisms
beyond NHRIsin areas such as criminal law, guardianship,
family law etc. NHRIs may however have an important role as part
of a national framework (or, to the extent possible within their
existing resources and jurisdiction, on their own initiative)
in examining needs and possibilities for any additional measures
in these areassuch as the development of guidelines and
strategies (whether by NHRIs or by the agencies responsible, or
both) regarding disability issues in law enforcement and the administration
of justice.
Regarding economic social and cultural rights,
the CRPD acknowledges (Article 4.2) that this class of rights
may be subject to progressive implementation, rather than being
required to be immediately realised in full. This has led to perceptions
that economic social and cultural rights are not classed as real
rights and in particular are not capable of being justiciable.
Although many NHRIs may not currently have direct
or comprehensive jurisdiction in relation to the Convenant on
Economic Social and Cultural Rights they may nonetheless have
important contributions to make to realisation of these rights,
and to consideration by governments of measures for protection
of these rights:
In particular, many NHRIs do already exercise
jurisdiction in relation to economic social and cultural rights
through administering anti-discrimination laws applying to these
rights and thus are familiar with issues of rights which are justiciable
and yet are subject to progressive implementation (for example
the requirements for accessibility of public transport which exist
in several States and which include timelines for compliance).
Discrimination laws in some States draw a distinction
between a right to have non-discriminatory access to those services
and facilities which exist (recognised in law), and a right of
access to needed services and facilities (not recognised). In
other States however legislation appears to go further towards
recognising rights to needed services, supports and adjustments
more directly. Exchange of experience between NHRIs in this area
would appear particularly valuable.
2. PROPOSED EHRC
APPROACH AND
ACTIONS
The Commission will take a proactive approach
to promoting and monitoring implementation of CRDP, both through
mainstreamed and dedicated activities.
2.1 Ratification
The EHRC Disability Committee has issued a statement
of its position on the UK Government's ratification of CRPD and
the actions it will pursue. This is included in the Appendix.
2.2 Involving and engaging disabled people
The Commission will directly involve as well
as engage with disabled people's organisations in its work on
the Convention. This includes:
Setting up an advisory group.
Calling for evidence in relation
to monitoring implementation and consulting on draft submissions.
Providing opportunities for disabled
peoples organisations to work with the Commission and independently
on the Convention via its grants programme.
Engaging and involving disabled people
in relation to specific work-streams.
2.3 Co-ordination with and supporting development
of the UK's promotion and monitoring framework
The Commission will set up a co-ordination group,
initially involving lead officers from EHRC's England, Scotland
and Wales offices, the Scottish Human Rights Commission, the Northern
Ireland Human Rights Commission and the Northern Ireland Equality
Commission. Subject to agreement by the Commissions, this group
may be widened to include Equality 2025 and other relevant bodies
such as the Children's Commissioners.
The group will be tasked with developing and
agreeing a consistent UK wide approach to promoting and monitoring
implementation of the Convention taking account of devolved and
reserved matters and different organisational competencies.
2.4 Awareness raising
The Commission will seek to raise awareness
and promote understanding of the Convention including:
Through its digital communications
strategy including dedicated pages on the Commissions website,
through its e-bulletin and its presence on social networking sites
including Facebook.
Specific action to promote awareness
and understanding of rights amongst people with learning disabilities
and amongst children and young people.
Through third party organisations
to target information at "hard to reach" groups such
as disabled people living in institutions, in ethnic minority
and traveller communities.
2.5 Defining the Commissions actions to promote,
protect and monitor implementation of CRPD in the 2009-12 Strategy
and business plan
During 2008-09 the Commission will draft, consult
on and agree its strategy for the period 2009-12. Subsequent business
plans will focus on achievement of the three year strategy. These
will incorporate activities in relation to the Commission's role
as part of the CRPD promotion and monitoring framework and may
include:
Influencing activities to secure
a single equality Act which builds on the DDA and the production
and dissemination of guidance to those with rights and responsibilities
under the new Act including disabled people, including via the
Commission's website and Helpline.
Pursuing a new EU Directive on Goods,
Facilities and Services.
Integrating the Convention into the
Commission's Legal Strategy, including enforcement of the Disability
Equality Duty, investigation and inquiries, judicial review and
intervention, casework and litigation, through legal policy work
and capacity building via the Commissions Grants Programme.
Research, policy development and
influencing activities in relation to key areas including poverty,
employment, independent living, health inequalities, targeted
violence and abuse, criminal justice, education, access to goods
and services and in relation to democratic participation and voice.
The promotion of human rights generally,
following the Commission's Human Rights Inquiry.
The Commission will produce a report detailing
precisely how its 3 year strategy and plans aim to support implementation
of relevant Convention Articles.
2.6 Monitoring
Working collaboratively with other parts of
the monitoring framework, the Commission will:
Through its work on data gathering
and the development of an equalities measurement framework, seek
to improve the quality, depth and consistency of data on equalities
and human rights as it relates to disabled people.
Publish a baseline assessment of
Britain and the United Kingdom's performance against the Convention
articles within 18 months of the UK's ratification, ahead of the
official timetable for reporting.
Seek to influence the UK Government's
report to the United Nation's Committee, and that of the European
Union.
Submit and present its own report
to the UN Committee.
Adapt its own strategy and work-plans
to respond to the findings and recommendations of the Committee.
2.7 International co-operation
Article 32 of the CPRD recognises the importance
of international co-operation and calls for States to undertake
appropriate measures:
Facilitating and supporting capacity-building,
including through the exchange and sharing of information, experiences,
training programmes and best practices.
Facilitating cooperation in research and access
to scientific and technical knowledge.
In the immediate term it is proposed that the
Commission develops informal relationships with NHRI's in similarly
placed country's including Australia, Canada and across the European
Union.
The Commission may in time wish to partner one
or more NHRI's and/or NGO's in Country's with less well developed
legislation, policy and programmes.
31 October 2008
42 1. States Parties shall recognize the rights of
persons with disabilities to liberty of movement, to freedom to
choose their residence and to a nationality, on an equal basis
with others, including by ensuring that persons with disabilities:++para++(a)
have the right to acquire and change a nationality and are not
deprived of their nationality arbitrarily or on the basis of disability;++para++(b)
are not deprived, on the basis of disability, of their ability
to obtain, possess and utilize documentation of their nationality
or other documentation of identification, or to utilize relevant
processes such as immigration proceedings, that may be needed
to facilitate exercise of the right to liberty of movement;++para++(c)
are free to leave any country, including their own; and++para++(d)
are not deprived, arbitrarily or on the basis of disability, of
the right to enter their own country. Back
43
1. Reservations incompatible with the object and purpose of the
present Convention shall not be permitted. Back
44
Department for Children, Schools and Families, Press Release,
"UK Lifts Reservations on the UN Convention on the Rights
of the Child", 22 September 2008: http://www.dcsf.gov.uk/pns/DisplayPN.cgi?pn_id=2008_0209 Back
45
COM(2008) 530/final/2. Back
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