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Baroness Wilkins: I strongly support all those amendments to which the noble Lords, Lord Carter, Lord Ashley of Stoke and Lord Addington, spoke. Consequently, I shall speak only to those amendments to which my name is attached.
As my noble friend Lord Ashley of Stoke said, the purpose of Amendments Nos. 51, 52 and 53 is to ensure that the review of the Disability Committee is genuinely fair and open-ended. The independent review may well find overwhelming evidence that the Disability Committee should continueand that it should be this committee which continues with its current composition and accumulated experience and
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expertise, not a new committee for which the Bill provides. I am very grateful to my noble friend the Minister for her letter setting that out as a possible option, but it does not meet disabled people's concerns at what looks like a pre-emptive decision regardless of how the committee works out in practice.
It would be very unfortunate if the Bill demanded the demise of a committee that had won the confidence and respect of disabled people. I hope that the Minister will see her way to accept the amendment.
Amendments Nos. 76 and 82 are both probing amendments, as my noble friend Lord Ashley of Stoke said. They seek ministerial assurance that the CEHR will carry on the breadth of the DRC's essential work on independent living. They also seek to spread awareness of the way that independent living should be promoted under each of the CEHR's pillars. My noble friend Lord Ashley has spoken at length about the importance of independent living and, as he said, it is central to the equality of disabled people. It means that disabled people have the same choice, control and freedom as other citizens. Many people assume that already exists; but disabled people are only too aware that it does not.
Although the amendment is to Clause 8, the equality pillar, independent living is also central to the CEHR's work under each of its three pillarsequality, human rights and good community relations. Clause 8 gives the CEHR a duty to promote equality of opportunity, which is about positive action to remove barriers to inclusion and participation. The CEHR will need to carry on the DRC's work on closing the equality gaps between non-disabled people and disabled people in employment, education and access to services and health. That means not only continuing the work in promoting access to dedicated services and entitlements for disabled people, such as the Access to Work scheme, but to continue to champion key components of the DRC's independent living agenda, such as the right to protection against enforced or inappropriate admissions to residential care and positive rights to choose where and how you live.
Under the good relations pillar, the CEHR will have a duty to combat the involuntary isolation of disabled people and the other strands, which means challenging enforced institutionalisation or separation from the wider community, and challenging the barriers in housing, transport and the built environment that lead to involuntary isolation.
Under the human rights pillar, the CEHR will have a duty to promote the importance of human rights and also to encourage public authorities to comply with Section 6 of the Human Rights Act 1998, which prohibits action incompatible with convention rights. Again, that duty will be a key to promoting independent living. The CEHR will need to promote the positive obligations of public authorities to allocate resources in a manner which promotes the family and community life of disabled people and which ensures the avoidance of inhumane and degrading treatment.
Again, involuntary placements into residential care, or the failure of services to support people in a manner that allows them to socialise with others and enjoy
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family life, could be addressed through the CEHR's work on human rights. I am extremely hopeful that the Minister will give her assurance that the CEHR will be charged with carrying on the DRC's work on independent living.
Finally, Amendment No. 137 to Clause 30 addresses the need to activate power to bring human rights cases on behalf of disabled people. It is a probing amendment on the need to activate power that is being carried over from the DRC Act 1999, which would enable the CEHR to assist disabled people with Human Rights Act cases. That power can play a vital role as part of a wider strategy geared towards achieving equal citizenship for disabled people.
There is substantial evidence of the abuse of disabled people's human rights, ranging from the withholding of life-saving medical treatment to inappropriate placement in institutions with no independent review, or being trapped in inaccessible housing without essential communication or advocacy support. Disabled people need the CEHR to have strong and meaningful human rights powers and to be able to enforce their human rights, not merely talk about them. The Government's original intention, as set out in the White Paper on the Disability Rights Commission, Promoting disabled people's rights: Creating a Disability Rights Commission fit for the 21st century, was that:
That policy has never been put into practice, despite repeated calls from the DRC to be allowed to do so. The DRC receives significant numbers of calls from disabled people wanting advice and support for discrimination claims under the Human Rights Act but, without the powers to act on their behalf, the commission is unable to help them.
"We have argued from the outset that the existing processes available to those who allege breaches of their human rights are adequate and well understood and attract public funding in appropriate cases".
However, the evidence demonstrates that disabled people are badly failed by the system. The legal aid system is widely viewed as being in a state of crisis. Only the very poorest people qualify for public
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funding, and further cuts are planned. Fewer and fewer lawyers and advisers are willing to take on legal aid cases or even give first-stage advice.
That is a general problem, but disabled people face major additional barriers to taking action to gain redress. As Luke Clements and Janet Read suggested in Disability Rights in EuropeFrom Theory to Practice, which was edited by Caroline Gooding and Anna Lawson and published by Hart Publishing in 2005, if initiating a legal claim is daunting for most people the issues are magnified for disabled people. They wrote:
"Disabled people often live in circumstances which are poorer and more constraining and limiting than those of their non-disabled peers. It is not uncommon for many to have faced years of stress, exhaustion and poor health without adequate support . . . Embarking on the complex, taxing procedures attendant on bringing a challenge under the Convention would be regarded by many such disabled people as impossible. Research suggests that some disabled people feel ill-equipped to make complaints in the standard way and that they are often fearful of the negative consequences".
Apart from a few high-profile cases, hardly any disability cases come forward, which many experts consider is due to the particular barriers to access with which disabled people have to contend. The legal process and practicalities of the court system throw up further barriers, including physical barriers to access such as physical access to courts and the unavailability of information in accessible formats. Also, users with mental health issues or learning difficulties may have difficulty understanding the process or following the progress of their case, or may find the legal process particularly stressful.
To ensure that disabled people make full use of the Human Rights Act and their convention rights, the CEHR needs to be empowered to assist where a disabled person cannot get legal aid or other assistance, where it is unreasonable to expect the applicant to deal with the case unaided and, most particularly, where the case raises a matter of principle and strategic importance.
There is one other compelling reason for enabling the CEHR to bring cases for disabled people, which relates to the expertise that it will be able to bring to bear. Justice Munby emphasised that point in Burke v General Medical Council, in which the Disability Rights Commission intervened as a third party. He said that,
It is through strategic cases such as that that the CEHR could generate wider social change, and a sea change in the recognition of disabled people's human rights. There is a clear argument for the need to activate the power to bring Human Rights Act cases on behalf of disabled people. The Disability Rights Commission understands that there has never been full consideration of the need to empower the CEHR to bring stand-alone human rights cases, in relation to either disabled people or other disadvantaged groups.
Although the Joint Committee on Human Rights did not support the CEHR's having litigation powers "for the time being", that recommendation was conditional on further review based on whether individuals with
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bona fide Human Rights Act claims were discriminated against in relation to their ability to access the courts, in comparison with individuals bringing claims under equality legislation. Also, the Joint Committee on Human Rights does not have a specific remit regarding the promotion of disability equality, so it did not examine this aspect in detail.
Can my noble friend the Minister assure us that there will be a thorough review of the consequences for disabled people of not giving the CHR any powers to consider stand-alone human rights cases? Would she agree that such a review needs to look at the nature and extent of human rights violations against disabled people? It needs to look at current patterns of Human Rights Act litigation involving disabled people, at the evidence of unmet need for legal redress and whether disabled people have effective access to justice. When do the Government intend fully to review the case for activation of the power to bring human rights cases and under what circumstances would they consider that appropriate?
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