Memorandum submitted by Scope
1. INTRODUCTION
1.1 Scope is one of the leading disability
organisations in the UK. We employ over 3,000 staff and have over
10,000 volunteers. We provide a range of services to disabled
people including employment, education and residential and day
services. Many of the disabled people we support have cerebral
palsy and high levels of support needs. Scope is calling for the
Government to ratify the UN Convention on the Rights of People
with Disabilities in full, without reservation or limitation,
by December 2008.
1.2 Scope is very concerned about aspects
of the Government's approach to the ratification and implementation
of the UN Convention on the Rights of People with Disabilities
(the Convention). In particular we are concerned about:
the time delay in the ratification;
the proposal to add reservations
to the Convention;
the delay in signing the Optional
Protocol of the Convention;
implementation and enforcement; and
Scope also has specific concerns
about disabled people's rights under the Convention on: violence
to disabled people; poverty and disability; and disability and
education.
2. SIGNING AND
RATIFICATION OF
THE CONVENTION
2.1 The UK's contribution to the development
of the Convention was crucial; however, the delay in ratification
has already had consequences in respect of the UK's representation
on the international monitoring mechanism of the Convention. According
to Article 34 of the Convention, a committee will be established
with the task of monitoring the implementation of the provisions
of the Convention. The committee will consist of countries that
have signed and ratified the Convention. As this process is well
under way the UK will not be able to nominate a representative
and consequently the UK will not be represented on that committee
leading up to and during the first round of reports from member
nation states.
2.2 This is the first UN Convention to be
signed and ratified since the expansion of the powers of the European
Union (EU) came into effect. However, despite the need to deal
with shared and exclusive competence issues between the UK and
the EU this should not be a reason for further delay. This is
clearly not the case for other members of the EU who have already
ratified the Convention.[52]
3. RESERVATIONS
AND INTERPRETATIVE
DECLARATIONS
3.1 The Government's decision to consider
making reservations to the Convention has been a source of great
disappointment for Scope and disability organisations, as any
reservation sends a signal that the UK Government can pick and
choose which human rights disabled people can have. This is why
Scope is calling for the UK Government to ratify the Convention
without any reservations. Scope asks the Joint Committee on Human
Rights to use all its influence to persuade the Government not
to make any reservations.
3.2 Unfortunately, we know from letters
from the Minister for Disabled People to the Joint Committee on
Human Rights that the Government is considering a number of reservations,
but because of a lack of communication between the Government
and disabled people's organisations (see below) there is considerable
confusion about exactly what these reservations might be. The
five that seem to be being actively considered relate to the restrictions
on armed forces; immigration; education; legal capacity and mental
health legislation.
4. PROPOSED RESERVATIONSTHE
ARMED FORCES
(ARTICLE 27)
4.1 The Ministry of Defence (MOD) has indicated
that there is a need to enter a reservation in respect of service
in the Armed Forces, consistent with the provisions of the Disability
Discrimination Act 1995 (DDA). Service in any of the naval, military
or air forces of the Crown are excluded from the DDA's employment
provisions, to preserve their combat effectiveness[53].
4.2 We understand that the MOD has softened
its stance on this issue and is now prepared for the reservation
to only apply to new recruits into the Armed Forces. Serving personnel
who acquire an impairment or condition while employed by the Armed
Forces can be retainedand therefore will not be subject
to a reservation. This position appears to undermine the argument
that the MOD has traditionally used for excluding disabled people
from the Armed Forces, namely that combat effectiveness requires
all personnel to be combat trained or ready at all times.[54]
4.3 Scope welcomes the MOD's new position,
but would urge them to go further and drop all reservations with
respect to the Armed Forces. There is no legal requirement to
recruit personnel who are unable to do the job they are recruited
forso lifting a blanket ban on recruiting disabled people
to the Armed Forces should have no effect on the ability of the
military to undertake its important role.
5. PROPOSED RESERVATION
ON IMMIGRATION
(ARTICLE 18)
5.1 The Minister's letter of 24 Sept 2008
to the Joint Committee on Human Rights said that the Home Office
"will wish to have a reservation in respect to Convention
Article 18.1 and an interpretative declaration in respect of 18.2".
This would be based on the same rationale as the reservation made
17 years ago when the UK Government ratified the UN Convention
on the Rights of the Child. However, the Government told the UN
Committee on 23 September 2008 that it will be removing this reservation.
As such we would welcome confirmation that the Home Office will
not be seeking a reservation on Article 18.
6. PROPOSED RESERVATION
ON EDUCATION
(ARTICLE 24)
6.1 The Department for Children, Schools
and Families (DCSF) signalled that they intended to insert an
interpretative declaration on Article 24, 2a: "Persons with
disabilities are not excluded from the general education system"in
order to clarify that the general education system included both
mainstream and segregated special schools. The DCSF also signalled
their intention to reserve on Article 24, 2b: "Persons with
disabilities can access an inclusive, quality and free primary
education and secondary education on an equal basis with others
in the communities in which they live".
6.2 We understand that wording for an interpretative
declaration put forward by the Council for Disabled Children and
Equality 2025 that includes putting an end date of 2025 is being
actively considered by the DCSF. However the latest indication
is that DCSF might accept most of the wording proposed, but not
the end date. If this is the case this may be considered to be
a reservation rather than an interpretative declaration.
6.3 The UK Government's position, if adopted,
is further compromised by the fact that other countries that have
special schools as part of their education system have not made
Article 24 subject to a reservation or even an interpretive declaration.[55]
It undermines the UK's leadership on human rights in the international
community. We would welcome an explanation of why the UK thinks
it needs an interpretative declaration when other countries with
similar education systems do not.
7. PROPOSED RESERVATION
ON LEGAL
CAPACITY
7.1 The Office for Disability Issues has
explained that the proposed reservation on legal capacity relates
to Article 12Equal Recognition Before the Law, and that
it is a technical issue about the power of attorney. At present,
we have no more information of the specific details of the proposed
reservation and we would welcome more details on this and reassurance
that disabled people's right to recognition of legal capacity
is not weakened or undermined.
8. PROPOSED RESERVATION
ON MENTAL
HEALTH LEGISLATION
8.1 The details of the reservations around
mental health legislation are likely to concern the detention
and involuntary treatment of people deemed to lack capacity to
make their own decisions and the use of community treatment orders,
which were introduced by the Mental Health Act (MHA) 2007. As
the Mental Health Alliance says: "The Mental Health [Act]
has failed to heed the evidence about the risks of significant
over-use of community treatment orders and the excessive powers
the MHA [Act] gives to clinicians. And it treats people with mental
health problems as second-class citizens by allowing treatment
to be imposed on those who are able to make rational decisions
for themselves."[56]
Again we want clarification to know why disabled people's organisations
have not been involved in discussions.
9. THE OPTIONAL
PROTOCOL
9.1 The UK Government has not yet signed
the Optional Protocol. However the Minister for Disabled People
said that "the Government is aware of the importance that
many disabled people and the Committee attach to this issue. The
Government is carefully considering its position as part of the
Convention ratification process in the light of the ongoing review
by the Ministry of Justice of a similar Optional Protocol relating
to the Convention on the Elimination of all Forms of Discrimination
against Women".[57]
This sounds encouraging but Scope would press the Government to
convert "carefully considering" to a firm commitment
to sign the Optional Protocol.
9.2 The Optional Protocol is important not
just so individuals who can, once national and European jurisprudence
processes are exhausted, take a case to the UN Committee, but
also as it offers a number of other benefits that will under-write
disabled people's rights. For example, allowing cases to go to
the Committee will ensure that any rights issues that have been
missed can be highlighted. It will also help the UK to be seen
as an exemplar of good practice. Finally, opinions from the Committee
under the Optional Protocol will help to develop and interpret
the Convention and allow UK courts to take account of it.
10. MONITORING
10.1 There is little indication of how disabled
people and their organisations will have a substantial and meaningful
input into the monitoring of the Convention. With ratification
expected before the end of the year there is an urgency at least
for the Government to indicate how this is going to be organised
and funded.
10.2 The problem of a lack of information
for, and consultation with, disabled people has been an ongoing
problem in the period since signing. For example trying to find
out about the details of the various reservations suggested in
the Minister's letter[58]
was very difficult, making the possibility of having a meaningful
input very limited. Organisations such as Scope were left to contact
the individual Government departments whose willingness to enter
into a dialogue varied considerably. As a result there was a lot
of misinformation about the exact details of the proposed reservations
and interpretative declarations.
10.3 For disabled people and their organisations
to have any confidence in the Convention to deliver substantive
improvements in their lives and aid the Government's commitment
to equality for disabled people by 2025, their experiences and
expectations and the rate of change in their lives needs to be
measured. As Scope's 2008 Disablism Audit points out there are
few key indicators that allow for change to be recorded and measured.[59]
11. IMPLEMENTATION
AND ENFORCEMENT
11.1 Since the passing of the first anti-discrimination
legislation for disabled people in 1995 (the Disability Discrimination
Act 1995 [DDA]) there have been a series of Acts that have outlawed
discrimination against disabled people, either directly or indirectly,
including: the extension of the DDA in 2000 and 2005; the Human
Rights Act 2000, and the Mental Capacity Act 2005. These Acts
are landmarks in the establishment of the rights of disabled people.
However, no matter how strong these laws are in principle they
have been weak in their enforcement.[60]
11.2 Scope's concern is that the very signing
and ratification of the Convention will be seen by Government
and other key institutions as sufficient. We can look to the recent
critical report by the UN Committee of the UK Government performance
in respect to the UN Convention on the Rights of the Child to
see that a great deal of effort and commitment will be required
to make the Convention rights a reality.[61]
12. SPECIFIC
AREAS OF
CONCERN
12.1 As important as the process of ratification
of the Convention is, it is only the precursor to ensuring enforcing
and upholding these rights in practice. Whilst supporting and
co-operating with the Equality and Human Rights Commission (EHRC)
in their formal monitoring for the UK Government, Scope will be
vigilant in evidencing disabled people's experiences of progress
independently of this official process. In this Scope will concentrate
on areas of human rights for disabled people in the Convention
that we consider of particular importance. At present we are particularly
concerned about three areas of human rights abuse against disabled
people: violence against disabled people; the disproportionate
number of disabled people and families living in poverty; and
access to quality inclusive education (see Appendix).
13. SUMMARY
13.1 Scope is urging the Government to ratify
the Convention with no reservations including the Optional Protocol.
If an interpretive declaration is deemed necessary for Article
24 by the DSCF then an end date of 2025 is required. Without this
it could be considered a reservation.
13.2 There has been little information and
a lack of consultation with disabled people and their organisations
over the ratification process. Also, little explanation or planning
in consulting with disabled people and their organisations on
what mechanism will be in place to record disabled people's experience
of change in their rights under the Convention.
13.3 The history of implementation and enforcement
of anti-discrimination legislation in the UK has been weak. The
redress mechanism needs strengthening if they are to deliver the
Convention rights.
13.4 Scope has concerns over specific areas
of human rights abuse including: violence to disabled people in
the form of hate crimes; that disabled people are more likely
to live in poverty than non-disabled people: and finally that
the education system disadvantages disabled children and young
people.
APPENDIX
VIOLENCE AGAINST DISABLED PEOPLE (ARTICLE
16)
1.1 The publication of the report "Getting
Away with Murder: Disabled people's experience of hate crime"[62]
has highlighted what has been a hidden but significant source
of violence to disabled people. Although official statistics are
not collected on disability hate crime there are other sources
of information that point to a high level of violence towards
disabled people:
A 2004 survey by the Disability Rights
Commission (DRC) and Capability Scotland found that 47% of respondents
had been attacked or frightened (by someone) because of their
impairment.[63]
One in five had suffered an attack
at least once a week.[64]
An in-depth study, Another Assault,
by the mental health charity Mind, published in 2007, found that
people with mental health issues were 11 times more likely to
be victimised than the rest of society.
71% of survey respondents with mental
distress had been victimised in the last two years.[65]
A Study by NACRO showed that disabled
people were four times as likely to have property stolen from
them with the threat or use of violence.[66]
1.2 Though the above statistics show clear
evidence of the widespread existence of disability hate crime,
it does not mean that it is always recognised, accepted or challenged
by those with the power to do so. There is now a wider recognition
from police and prosecuting services about the extent and nature
of hate crime against disabled people and policies are being activated
to prosecute and punish the perpetrators of disability hate crimes.
However, the persistence of disablism in UK society and as a consequence,
disablist hate crime, remains.
1.3 Incidents of disability hate crime often
stem from low-level harassment: name calling, intimidation and
vandalism frequently escalate into more serious crimes. Bullying
of disabled children at school is widespread and frequently goes
unchallenged. This lays the foundations for the harassment and
disrespect that many disabled people experience in adult life.
Disablist attitudes are prevalent in UK society and can lead to
human rights abuse in the form of violence against disabled people.[67]
Poverty and Disability (Article 28)
2.1 Official statistics consistently show
that disabled people are more likely than non-disabled people
to live in poverty.[68]
They are twice as likely to live
in households that are fuel poor.
The additional cost of disability
can be as high a 69%.[69]
Historically they are likely to earn
less per hour than non-disabled people.[70]
In a Scope survey when asked if they
had enough money to buy the things they needed, 41% responded
either not very often, or rarely/never.[71]
2.2 Such poverty has its roots in the systemic
discrimination against disabled people both in lower levels of
income and also in the higher levels of expenditure. The consequences
for disabled adults and disabled children and their families are
to impact on their health and wellbeing as well as their opportunities
and aspirations.
Education (Article 24)
3.1 As mentioned in above (Section 6) Scope
is very concerned about proposals to enter a reservation or interpretive
declaration on Article 24. The continuation of a twin track state
education system in which a proportion (however small) of disabled
children are educated away from the family home and their local
community is unacceptable in any civilised society in the 21st
Century. The number of disabled children enrolled at special schools
fell in number from 88,930 in 2003 to 84,620 in 2006, but increased
to 84,680 in 2007.[72]
3.2 In a general sense disabled children
and young people in education are at a considerable disadvantage
compared with their non-disabled peers.
The percentage of 16 year olds who
obtained Level 2 who had no identified Special Educational Need
(SEN) was 58.5% compared with those who had some form of SEN identified
who obtained 11.1%[73]
The proportion of 16 year olds studying
for Level 3 qualifications who are disabled is 39% compared with
50% of non-disabled 16 year olds.[74]
The proportion of disabled young
people aged 19 with experience of higher education is 28% compared
with 41% of non-disabled 19 year olds.[75]
In 2006 29% of young people who had
either a disability or a health problem were Not in Education,
Employment, or Training (NEET). This compares with 12% for those
who did not have a disability or a health problem.[76]
3 November 2008
52 For example: Austria; Slovenia and Spain Back
53
Minister for Disabled People's letter to the Joint Committee on
Human Rights 24 Sept 2008 Back
54
The MOD position was further undermined by a recent Select Committee
Report which stated that many non-disabled members of the Armed
Forces are not combat trained or ready. The report states that:
"Between January to December 2007, 42% of force elements
reported serious weaknesses against their peacetime readiness
levels-15% below target". Back
55
For example: Germany, New Zealand, France and Australia Back
56
http://www.mentalhealthalliance.org.uk/news/prendofbill.html Back
57
6 May 2008 Back
58
Ibid Back
59
No Fun, No Sex, No Future: Scope's 2008 Disablism Audit (forthcoming
December 2008) Back
60
For an example of this, see the Scope report Doing Justice to
Disability: Enforcing disabled people's legal rights within a
Single Equality Act (www.scope.org.uk) Back
61
Committee on the rights of the child (49th session). Consideration
of reports submitted by states parties under Article 44 of the
Convention, concluding observations-United Kingdom of Great Britain
and Northern Ireland. Back
62
The Scope report-Getting Away With Murder: Disabled People's Experience
of Hate Crime (www.scope.org.uk) Back
63
Disability Rights Commission and Capability Scotland, Hate Crime
against Disabled People in Scotland: A survey report, 2004 Back
64
Ibid Back
65
Mind, Another Assault, 2007 Back
66
NACRO Crime and Social Policy Section Briefing Sept 2002 Back
67
In the Scope report-No Fun, No Sex, No Future: The Scope Disablism
Audit 2008 (forthcoming December 2008) 18%-nearly one in five
disabled people-said that they did not very often, rarely or never
felt safe and secure at home or in their local community during
the day and at night. This is a significant percentage and illustrates
the extent of the problem of violence against disabled people. Back
68
Department for Work and Pensions, HM Treasury, Department of Children,
Schools and Families: Child Poverty Statistics 2006-07: at a glance. Back
69
Source: Zaidi, A. and Burchardt T. (2003) Comparing incomes when
needs differ: equivalisation for the extra cost of disability
in the UK. Quoted in the Dept of Work and Pensions: Reviewing
the existing research on the extra cost of disability. Working
Paper 21 Back
70
Labour Force Survey. Spring 200?-2006, January-March 2007. Quoted
in the ODI Annual report 2008: Annex two: Indicators data Back
71
No Fun, No Sex, No Future: The Scope Disablism Audit 2008 (Forth
coming December 2008) Back
72
DCFS School Census January 2007. SFR 20/2007 Back
73
http://www.dcsf.gov.uk/rsgateway/DB/STA/t000767/index.shtml Back
74
Youth Cohort Study (YCS) Cohort 12, Sweep 1 (16 year olds England
and Wales). Quoted in the ODI Annual report 2008: Annex Two: Indicators
data Back
75
Youth Cohort Study (YCS) Cohort 11, Sweep 4, (19 year olds England
and Wales). Quoted in the ODI Annual report 2008: Annex two: Indicators
data Back
76
Youth Cohort Study, Cohort 12, Sweep 3. Back
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