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

Memorandum submitted by Deborah King

  1.  "International law is not rules. It is a normative system. All organized groups and structures require a system of normative conduct—that is to say, conduct which is regarded by each actor, and by the group as a whole, as being obligatory, and for which violation carries a price. Normative systems make possible that degree of order if society is to maximise the common good—and, indeed, even to avoid chaos in the web of bilateral and multilateral relationships that that society embraces. Without law at the domestic level, cars cannot travel safely on the roads, purchases cannot be made, personal safety cannot be secured. Without international law, safe aviation could not be agreed, resources could not be allocated, people could not safely choose to dwell in foreign lands. Two points are immediately apparent. The first is that this is humdrum stuff. The role of the law is to provide an operational system for securing values that we all desire—security, freedom, the provision of sufficient material goods. It is not, as is commonly supposed, only about resolving disputes. If a legal system works well, then disputes are in large part avoided. The identification of required norms of behaviour, and techniques to secure routine compliance with them, play an important part. An efficacious legal system can also contain competing interests, allowing those who hold them not to insist upon immediate and unqualified vindication. Of course, sometimes dispute-resolution will be needed; or even norms to limit the parameters of conduct when normal friendly relations have broken down and dispute resolution failed. But these last elements are only a small part of the overall picture.

  The second point is that, in these essentials, international law is no different from domestic law. It is not, as some suppose, an arcane and obscure body of rules whose origin and purpose are shrouded in mystery. But, if the social purpose of international law and domestic law is broadly similar, there are important differences arising from the fact that domestic law operates in a vertical legal order, and international law in a horizontal legal order. Consent and sovereignty are constraining factors against which the prescribing, invoking, and applying of international law norms must operate".[77]

  2.  What does the above quote, written by Judge Rosalyn Higgins, President of the International Court of Justice, mean in relation to the Joint Committee's work on the UN Convention on Disability?

  3.  First, it is a reminder that the Convention on Disability derives from the United Nations process. Part of this involves establishing "conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained".[78]

  4.  Second, it is a reminder that the Human Rights Committee can look vertically at the UK legal system and ask: "Does the UK have an efficacious legal system?" Also, "Does the MoD need to conduct a pre-emptive strike against the UN Convention on Disability?" The impact of a reservation is to insist upon "immediate and unqualified vindication". This will be without any UK judge being able to test evidence, weigh up competing versions or to exercise his or her own independent judgment about the rule of law in relation to the MoD, its proposed reserved areas and the UN Convention on Disability.


  5.  In relation to gender discrimination, the Ministry would have saved £60 million had it not unlawfully dismissed 5,700 servicewomen for pregnancy. Had politicians had the foresight to act differently, this waste of personnel and money would not have occurred. We have seen, with the death of Corporal Sarah Bryant,[79] that any inhibitions or stereotypes which politicians or the armed forces may have had about women serving in the armed forces were utterly misplaced. Similarly with the fire service, Fleur Lombard,[80] the first female fire fighter to die in service in peacetime, shows stereotypes play no part in rational administration of our most important public services.

  We need foresight from this Committee in relation to disability.

  6.  It is important to be clear about what a recommendation of "no reservation" would mean to the Armed Forces. It would not mean the following, put in tabloid headlines so that the real impact can be seen:

    —  "Forces made to recruit cripples".

    —  "MoD to waste millions on Tribunals".

    —  "`PC gone mad' say generals".

  All of these headlines would be a deliberately incorrect interpretation of what ratification of the UN Convention on Disability without reservation would mean.

  6.1  What it does mean, however, is that the Armed Forces start to be looked upon as a progressive employer, capable of setting rational standards in relation to physical and mental ability without the need to hide behind blanket bans as if they had no real case to argue. Real resources need to be put towards assessments of individuals who are atypical or not defined as "perfect" in a specific physical or mental way.


  7.  Given the way in which the credit crunch has been perceived as a "big surprise" or Black Swan, for which systems have had to be created to react very quickly, what would be the recruitment effects of significant numbers of the armed forces being blown up or injured so seriously that they could not fight?

  7.1  Contingency plans which did not envisage the use of people currently defined as disabled would be irrational. Although an immediate MoD answer might say "draft", the U.K. perceives herself to have a stronger military by virtue of it being a volunteer force. Also, in the US, the draft has presented political difficulties, which may relate to the perceived validity of the war:[81]

    "On 30 September 1963, President John F Kennedy established the Task Force on Manpower Conservation to investigate why, in 1962, an astonishing 49.8% of 306,073 Selective Service draftees failed their pre-induction peacetime medical and/or mental aptitude examinations, thus disqualifying them for military service".


  7.2  Yet presently the lens through which the MoD views disabled people rests on the assumption that disabled people are to be discarded from the recruitment process. Yet the disabled people in question may be more ready, willing and able than the civilian population subject to a draft. This leads to a failure to develop processes by which the real assessment of a disability is precluded.

  7.3  In theatre, a disabled person who has been trained to operate a specific piece of equipment may use it more effectively than a "perfect" soldier who has not been so trained.

  7.4  The issue involves looking at whether a specific disability precludes the level of inter-operability required. But rational foresight also requires the allocation of resources to the MoD to enable them to set up processes which allow them to assess the real effect of a disability, not just the stereotyped perception of the impact which that disability has.

  7.5  Having a blanket MoD reservation on the recruitment side is not a logical policy given the pace of change in biomedical and other scientific areas:

    "A soldier has returned to Afghanistan, despite being badly injured by a roadside bomb attack during an earlier tour of duty. Anthony Makin, from Benwell, Newcastle had his lower right leg amputated and was fitted with a prosthetic limb. But he surprised doctors by fighting his way back to fitness during a two-year rehabilitation programme".[82]

  7.6  Disabilities, or a perceived disability in 2008, may not be considered a disability in 2012. We need to keep an open, not a closed mind on this issue.


  8.1  We have a common law system which enables situations to be examined on a case by case basis. Part of its beauty is that it creates the capacity to pull down threads of the international law tapestry and use the concepts in appropriate cases. As a Ministry, Defence is rarely happy to be governed by legislation as it perceives itself to be solely concerned with defence and wants the minimum level of restriction on its activities.

  8.2  However, regional and international human rights instruments have led to improvements in MoD practice, which their legal officers and service personnel accept, with hindsight, do in fact improve the quality of decision making within the MoD. An example of this is the case of Findlay[83] which related to the fairness of the courts martial system.

  8.3  Politicians need to have the foresight to recognise when arguments for exemption are not valid.


  9.  This makes it easier to ensure that prospective recruits to the Armed forces consider the MoD is a fair employer. A newspaper article in May 2008 reports "all three forces are significantly under-strength in terms of personnel".[84]

  Given the economic situation, it is important to ensure the MoD is an attractive employer to recruits.


  10.  The cartoon of Santa in a wheelchair was kindly drawn and donated by Matt in 1996. It was to help a non-violent direct action by disabled people complaining about London Underground Limited's failure to take action about the absence of disabled access on the tube. Handcuffing themselves to a tube train led to a temporary shutdown of service.

  10.1  No arrests were made, LUL agreed to meet protestors and the event passed off peacefully. Santa however had to have a party at Hillingdon station in December 1996 as LUL had not responded to all the issues as they promised.

  10.2  The glacial pace of change in relation to disability issues reminds us that disability is the area where significant change happens very slowly. The tube in London is still not fully accessible to disabled people.

  10.3  Reservations hamper the development of global legal norms.

3 November 2008

77   Her Excellency Judge Rosalyn Higgins DBE-United Kingdom judge and President of the International Court of Justice-"Problems and Process-International Law and How we use it"-Clarendon Oxford 1994. Back

78   Preamble to the Charter of the United Nations and Statute of the International Court of Justice-25 June 1945-into force 24 October 1945. Back

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83   Findlay v UK (25 February 1997) (1997) 24 EHRR 221 Article 6-right to a fair trial The applicant developed post-traumatic stress disorder after taking part as a British soldier in the Falklands war. He threatened to shoot himself and a number of colleagues, firing some shots in the air. He was court-martialled for this. A convening officer was responsible for appointing the participants in the court-martial and for confirming the sentence. The applicant was sentenced to imprisonment and dismissed from the army. His requests for a review were rejected, as was an application for judicial review. The European Court (9 judges, including Sir John Freeland, the UK judge) held that there had been a breach of Article 6(1) but awarded no compensation. The Court stressed that the safeguards available to the applicant (eg judicial review) did not remedy the flaws caused by the role of the convening officer-a person is entitled to a first instance trial which fully complies with Article 6. Back

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