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Lord Lester of Herne Hill: I am grateful to my noble friend. The problem of whether it creates new rights is exemplified by the fact that we asked the Government in our first report to tell us—to tell the public—how domestic law and practice are compatible with the requirements of the convention. I have already explained the Government’s reply to that, but it is impossible to tell whether it confers new rights unless one holds to the Government’s view of how it is

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compatible with domestic law. As they will not tell us, I for my part very much doubt whether it is correct to say that it does not conform to the rights, but that is why we cannot give a coherent answer.

Lord Maclennan of Rogart: I am grateful to my noble friend. I was attaching myself not so much to the formal reply or explanations in the memorandum as to what the Minister himself said, as I understood it, in his opening comment about this not conferring rights. I understand that that underlay part of the Government’s argument that for the avoidance of any doubt about whether they were amending the law, they would be required to include these reservations. However, there is some certainty about this. It is important that Parliament should not be uncertain before the treaty is ratified.

Notwithstanding the desirability of ratification being expeditiously concluded, if there are new rights, they ought to be clearly set out in an explanatory memorandum or in authoritative statements. If they are not, what is the intention? If domestic law does not reflect the requirements of the convention, the Government should indicate their intention to move towards accepting the agreed international standards.

There has been a definitional point in respect of the education of special needs children. The position is very different in Germany from that in Britain. Fewer children are in comprehensive education in special schools in Germany than in this country. I recall in earlier evidence to the Joint Committee that the Government indicated that they were not interested in the views of other countries in ratifying, that comparisons were not really a matter that exercised them and that some countries entered into such commitments because they were aspirational. Such ambiguity is not appropriate for this country. I accept that we have stated an acceptance of the need to conform our domestic law with the international law to which we subscribe.

The particular points have been made so well made by the noble Lords, Lord Hannay and Lord Lester. What I am most concerned about is that the process should allow that clarity to be fully displayed before Parliament, so that Members of Parliament can give their full-hearted consent to what is being done.

Notwithstanding the fact that the convention has, from the evidence deployed earlier by the Government, reached this stage under the allotted time by quite a margin from that of certain other UN conventions, I fear that because these issues have not been built into the process for ratification, they will be opened up for discussion not just with special interest groups but more widely with their representatives in Parliament.

I hope that we see this debate as one that reflects a transitional state in which the Government are moving towards the recognition that the Ponsonby Rule will not suffice and that in a modern legislature we have a duty to take on the burden of implementing these international obligations. I had hoped that by this time we would have seen the Government’s proposals for the Constitutional Renewal Bill published in a form that takes account of what was said about it by the Joint Committee on which I have the honour to serve.

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It seems to be slipping back in the parliamentary Session and one must express some concern about that. This is an important matter and it is not new. The Wakeham commission recommended that there should be a joint committee to scrutinise such legislation and pronounce on its importance, and indeed that has been progressively part of the Government’s own thinking. However, I fear that there has been some recoiling on this and that it is almost in a sense an accident that we are holding this debate. I say that because it is not conceived as appropriately necessary for Parliament to underpin and, indeed, along with the Government, take credit for the enhancement of the protection of human rights—in this case the rights of those with disabilities.

Although I understand the narrow focus of the debate, I hope that the Minister will feel able to give some indication of the Government’s intentions with respect to scrutiny by Parliament, confirm that we are moving in that direction, and further confirm that it is not their intention to confine the debate. The apology given in written evidence so far for not revealing the information requested by the Joint Committee explained that there was a need for speed. Of course that could have been foreseen and responded to earlier, and I hope that we can have a reassurance from the Minister on these points.

Baroness Thomas of Winchester: I, too, welcome the debate about the Government’s decision to ratify the UN Convention on the Rights of Persons with Disabilities. Slowly but surely the milestones are being reached on the long road towards equal treatment for those with disabilities. Like my noble friends, I deplore the Government’s refusal to consult publicly on the reservations they intend to make, which makes it sound as though they have something to hide or are ashamed of them. Before coming to the reservations, I also record my concern that there is still no formal procedure by which Parliament can scrutinise treaties or even conventions before they are ratified. I am grateful to the JCHR for publishing a report on which a debate can be held. In my ignorance, I thought that a treaty scrutiny committee had been agreed, and cannot for the life of me think why it has not.

Turning now to the only reservation I shall speak about, the one on special schools and parental choice in education, one immediately steps into a minefield. What we all want is for all mainstream schools to be able not just to cope with children with all kinds of disabilities, but to do the very best for all these children. I gather that if this reservation goes ahead, the Government are in danger of giving the wrong signal to the mainstream world that they do not have to bother with quite the same urgency with adaptations, extra help and so on, because the special schools are always there to take the children with the most challenging problems. I can see that point. However, I can also see that there are severely disabled children who flourish in some absolutely brilliant special schools, such as Prior’s Court near Newbury, which caters for children at the far end of the autistic spectrum.

So what is the answer? I think that it must be that if the Government are going to lodge this reservation, they will have to demonstrate that they will work

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doubly hard to ensure that the vast majority of disabled children are enabled to access mainstream education. I heard only this morning that there are still schools where there are no lavatories accessible to children with muscular dystrophy, for example. That is unforgiveable in 2009. I echo the question that my noble friend Lord Lester of Herne Hill asked about whether the purpose of the reservation is simply to clarify that nothing in the convention requires the UK to work towards the eventual elimination of special schools.

My last word on the subject is to ask the Government what new, positive action they are going to take to compensate, if that is the right word, for putting in this reservation on educating people with disabilities. If the noble Lord, Lord McKenzie, cannot answer that question now, as I do not expect him to, perhaps he could write to me. As far as the other reservations are concerned, I concur with the views of my noble friend and look forward to hearing the speech of my noble friend or, if I can call her that, my noble colleague Lady Campbell.

Baroness Campbell of Surbiton: First I must apologise to the Minister and to the noble Lord, Lord Lester, for not being here to hear their opening speeches. What can one do? I am a passionate speaker on behalf of haemophiliacs, so I had to support an amendment in the House, but I am equally passionate about this issue. One cannot be in both places at once, so thank you so much for allowing me to come in now.

The significance of the UN Convention on the Rights of Persons with Disabilities is immense. It represents an international acceptance that disabled people are disadvantaged in society due to social, economic and environmental barriers, and not because of their physical or mental conditions. In the disability world, we call that the social model. Disabled people have campaigned for this definition of their status for more than half a century. This convention reaffirms disabled people’s inalienable human rights to freedom, respect, equality, dignity and autonomy and it charts positive steps that Governments must take to make these rights a reality.

Most significant of all, this convention, the first international human rights treaty of the 21st century, is a genuine product of partnership, of co-production, between disabled people and Governments. The principle of partnership captured in the phrase, “Nothing about us without us” must continue as this treaty is implemented. That is why I must share with noble Lords my grave disappointment that the Government on this occasion have failed to involve disabled people and their organisations in the last stage before ratification. Oh dear, what a shame. We had such a good record on partnership work. It was only on 3 March, with the publication of the Explanatory Memorandum, that the Government set out in detail their proposed reservations and declarations in the areas of education, immigration, employment and legal capacity. This was the very first opportunity for disabled people and others, including the Equality and Human Rights Commission and the Joint Committee on Human Rights, to examine these reservations and declarations.

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6 pm

No formal consultation has taken place. It is extremely disappointing that a Government with such a proud record on disability rights, respected around the world for their efforts, should have decided that reservations and declarations were necessary, still worse that they were unwilling to consult on them. Of course, what do disabled people think? “What have they got to hide?” So silly.

As time is short, I shall confine my comments to the reservation regarding education, as it is my passion and, of course, because it concerns me the most. I find it extremely sad that the Government should take issue with part of the convention intended to encourage the progressive realisation of an education system that extends belonging and provides the very best start in life for every child, disabled or not. By keeping a place for segregation in the education system, the Government are, I believe, signalling their acceptance of a two-tier system status quo. Many of us, and certainly the disability community, who are campaigning for inclusion, feel that this reservation will keep the status quo and move us no further on.

Segregated special schools represent progress not yet made. It is an exercise in doublespeak to describe schools that separate disabled children from their non-disabled peers as inclusive, as the Government now seek to do. Such provision, often requiring children to attend residential schools many miles from their home, is not in my view compatible with the spirit of the convention for private and family life.

One can sympathise with parents deciding, in the absence of viable alternatives, to send their child to such a school, but it is not choice; it is Hobson’s choice.

Baroness Wilkins: My Lords, with your leave and with the permission of the House authorities, the noble Baroness, Lady Campbell, has asked that I speak from her notes while she regains her breath. I hope that meets with your agreement. She says that the progressive realisation of an inclusive education system is the only vehicle through which to genuinely expand parental choice and protect and promote human rights in the process. In the response to her letter, the department provided her with its rationale for this declaration. The department quoted Ofsted’s report, Inclusion: does it matter where children are taught?, as finding that,

“The most important factor in determining the best outcomes for pupils with learning difficulties and disabilities (LDD) is not the type but the quality of the provision”.

However, the department neglected to mention that the same Ofsted report goes on to say:

“There was little difference in the quality of provision and outcomes for pupils across primary and secondary mainstream schools and special schools. However, mainstream schools with additionally resourced provision were particularly successful in achieving high outcomes for pupils academically, socially and personally. PRUs were the least successful”.

It goes on to say,

“Pupils with even the most severe and complex needs were able to make outstanding progress in all types of settings. High quality, specialist teachers and a commitment by leaders to create opportunities to include all pupils were the keys to success”.

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The noble Baroness, Lady Campbell, says that she cannot help but fear that such commitment will be needlessly undermined by this declaration, which represents a firm commitment by the Government to a permanent and fixed role for special schools. As such, she considers the declaration incompatible with the objectives of the convention. She notes the commitment of the Home Office to review in 12 months the necessity for the reservation concerning immigration and she would like the Government to withdraw their reservation regarding education. If they are unwilling to do this, at least let them agree to also review this reservation in 12 months. In fact, she would like to ask the Minister whether he will consider securing a review of all the reservations and the specific declaration in relation to education not later than 12 months after the date of ratification, including the full consultation with disabled people and wider society that has been sadly lacking to date.

Lord Skelmersdale: I have to say that when I walked into the Moses Room this afternoon, I did not entirely expect the sort of debate that we have just had, but the Grand Committee should be grateful for the very full explanation that the Minister gave to an order that, on the face of it, can be described as nothing less than opaque. Thank goodness, then, for the Explanatory Memorandum, which, although brief, shorter than either the speech made by the Minister for Disabled People when he introduced the order in another place or that of the noble Lord himself, is some guidance to what we are discussing this afternoon, namely the United Nations convention.

Interested as I am in parliamentary procedure, I will not be going into the parliamentary actions of treaty-making, or rather, as has been pointed out, the lack of them. They are for another day. I would point out, though, and I think I am right in so doing, that Governments usually sign treaties—one thinks, for example, of war treaties—in some degree of haste and the ratification depends on the number of signatories. I hope that the noble Lord, Lord Hannay, with his vast experience, will be able to confirm that.

To go back to the convention, its purpose is to promote, protect and ensure the full and equal treatment of all human rights and fundamental freedoms of all disabled people so that they can participate fully in society. Who better to remind us of that need than the noble Baroness, Lady Campbell?

As the noble Lord, Lord Maclennan, noted from the Minister’s speech, it is a reaffirmation of these human rights for disabled people. There are, as I understand it, no new rights involved, but one of the questions we ought to ask is where this reaffirmation springs from. Is it a previous UN treaty or is it something else?

As the Explanatory Memorandum sets out, this treaty confirms the obligation of the United Nations states to protect, promote and ensure the human rights that all people already have on an equal basis to those of able-bodied people. These are, of course, very wide and encompass several political, economic, social and cultural rights.

I have lost count of the number of times over the past 20 years that I have had said to me that disabled people are people first and disabled second. My second

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question to the Minister is what rights able-bodied people have that disabled people do not. I accept that all too often disabled people are treated as second-class citizens across the world, but I would like to hear the Minister’s answer, particularly as I do not believe that this is the case across the European Union. In this country, as has been pointed out, we have the Disability Discrimination Act, which we strengthened only recently, with all-party support. I understand that it has its equivalent in other EU countries.

Since the EU believes that it is necessary, we have to agree today’s order willy-nilly. Despite the speech of the noble Lord, Lord Lester, and the views of the Joint Committee on Human Rights, we on this side of the Grand Committee agree with the Government that a few exceptions are needed. The tenor of the remarks of all noble Lords who have spoken is this: are these reservations new, and are they needed now? I think that is a reasonable paraphrase of the debate that we have had so far.

My honourable friend the shadow Minister for Disabled People, Mr Harper, listed the exemptions in another place. There is an exemption for service in the Armed Forces, who, when able-bodied, do such a magnificent job in helping other nations secure peace around the world and on their own in Northern Ireland, although, mercifully, they are not needed there in such numbers as previously. I heard the noble Lord, Lord Lester, speak of compatibility. Our own DDA excludes them too. However, if they become disabled in the course of their service, there is no requirement to keep them on in another capacity within, say, the Army, or indeed in any other of the Armed Forces. In many cases this would be a waste of their training, and I hope that the MoD, which does so well for disabled veterans, will take that on board. The Minister will correct me, as he loves to do when I am wrong, but I do not believe that this reservation is to do with recruitment. Does he agree that it applies to the retention of troops who become disabled in the course of their armed service? Should our reservation not make that clear?

Another exemption retains the right to maintain Immigration Rules, which in essence give us the right to screen immigrants. I believe that this is entirely for health reasons. We agree with that too, although we note that the Government intend to review this in a year’s time to see whether it remains a useful tool in our public health armoury. Perhaps the Minister will expand on that. How confident can we be in this timing, though? The Minister for Disabled People committed the Government to laying this order by the end of last year and we have it three months later—not exactly, to quote from the Minister’s speech, at the “earliest opportunity”.

There is a third reservation, which concerns the DWP itself. The convention requires a regular review of what it calls “substituted decision-making” by a competent, independent and impartial authority or judicial body. The DWP has no review system for people who are appointed to claim and collect benefits on behalf of disabled people. I understand that the department is working towards just such a review. I would therefore be grateful for a progress report, both now and as things evolve.

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The noble Baroness, Lady Thomas of Winchester, majored on the interpretative declaration that makes clear that our general education system includes both mainstream and special schools. I am glad that this is so because I believe, perhaps unfashionably, that in most cases disabled children are better off in mainstream schools. The conventional education wisdom on this point has varied, I note, during my time in this House. Nevertheless, there are those for whom special schools are appropriate—indeed, are vital. Although education is not my subject and never has been, I think the Government are in a bit of a muddle here. On the one hand, they have a stated belief in special schools; on the other, local authorities are allowed to close them. I would be grateful for a response on that point.

Will these reservations and the interpretative declaration be attached to the ratification that the EU sends to the UN? How exactly does all this work? As I said earlier, this order does not permit the UK to ratify the convention. Indeed, as the noble Lord, Lord Lester, also said, no parliamentary debate is needed at all.

Lord Lester of Herne Hill: I am sorry to interrupt, but I think that the noble Lord is under the misapprehension that the reservation for the Armed Forces has only a limited application. I think that he said it applies only to retention within the service of those who have been injured in combat, or words to that effect. The text of the reservation is set out in paragraph 48 of the JCHR report. As does the Equality Bill in its present draft, it exempts the whole of the employment and occupation provisions—

at all. It is a completely blanket reservation and not of the narrow kind.

6.15 pm

Lord Skelmersdale: No, that is exactly so. What I was trying to get out of the Minister was whether the narrow interpretation, which I made during my remarks on that part, is appropriate. To me, it is appropriate.

Lord Lester of Herne Hill: I thank the noble Lord.

Lord Skelmersdale: I am now hopelessly lost. Notwithstanding these comments, we are pleased to support this order, even though it does not in itself ratify the convention. However, many more states or groups of states will be needed to achieve that. How many are we talking about? Are we talking 30, 40, 50 or 90? I have no idea. Did I understand the Minister correctly when he talked about ratification? As I now understand, and did not when I prepared my speech, we are talking about two ratifications; that is, the EU ratification and this country’s ratification. But still, if we ratify separately, do the reservations and the statutory declaration have to be attached to the EU ratification document?

In all this, I am concerned as to how the developing world, where 80 per cent of the world’s disabled people live, will be encouraged to sign up to it. What discussions have been undertaken within the Government to

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encourage developing countries to sign the convention? Is the Secretary of State for International Development bringing it to the attention of those countries as he and his Ministers go on their travels around the world? The Minister will be delighted to know that that is my final question.

6.15 pm

Lord Low of Dalston: I did not rise to speak before the noble Lord, Lord Skelmersdale, because I was expecting the noble Baroness, Lady Campbell, to come back into the debate. I apologise for perhaps missing my cue. As I sense that we are pressed for time and coming towards the end of the debate, I will cut short my remarks. I shall cut to the chase and make a few remarks about a couple of the proposed reservations. I welcome the JCHR report. The Convention on the Rights of Persons with Disabilities has iconic significance for disabled people as providing important validation and underpinning of their rights, which have provided such a potent focus for campaigning by disabled people in recent years for improvements in their situation.

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