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The role of the UK and the process leading to the adoption of the convention have been widely welcomed, but the ratification process has become somewhat contentious as soon as it was learnt that there was some possibility that ratification might be attended by the entering of reservations. I can understand that concern. As the JCHR report says,

should proceed,

However, I have never thought that the call for ratification without reservation, irrespective of any consideration of what these reservations might be, was very credible. With the JCHR, I would say that the Government’s view that the UK should not accede to any treaty unless domestic law and practice are capable of complying with its obligations is clearly right. I therefore welcome the balanced approach adopted by the JCHR and the Equality and Human Rights Commission in accepting the necessity for some of the reservations, but subject to review, with the aim of getting rid of them at the earliest possible date.

I shall cut to the brief remarks I want to make about two of the proposed reservations. The first is on education. There seems to be some confusion here. The Joint Committee states that it welcomes the restatement in the Explanatory Memorandum of the Government’s commitment to inclusive education, but that,

If one wants the Government to reiterate that nothing in the convention requires the eventual elimination of special schools, one can hardly argue for no reservation on the ground that the convention is intended to lead to the progressive elimination of all special schools. However, the concern here is not with the maintenance of specialist provision, but with the Government being explicit about it in their reservation and interpretative declaration. The JCHR points out that Germany has ratified without reservation, although its system of special education is overwhelmingly based on specialist provision. This is surely disingenuous, and the UK is only being straightforward and above board in being explicit about its position—another case, perhaps, of the UK signing up to international obligations only on a basis that it is able to go along with, in contrast to the oft-observed tendency of others to sign up to obligations that they are largely content to ignore. The noble Lord, Lord Maclennan, was also at pains to make this point.

There is a continuing need for specialist provision. The disability community is divided about this. For example, the blind, the deaf and the deaf-blind had a major struggle in the negotiations leading to the convention to gain recognition at Article 24(3)(c) of the need to maintain specialist provision to meet their particular needs. Having achieved that, it seems only logical for the Government, in ratifying the convention, to make it clear that the UK’s education system includes specialist provision to meet highly specialised needs.

I turn finally to the reservation concerning service in the Armed Forces. The argument that bans all disabled people from serving in the forces on the basis that people in wheelchairs, or people who are totally blind for that matter, could not possibly go into action, which they could not, is based on a very narrow and outdated stereotype of what disability is, and is certainly not one which is recognised by the DDA. There, disability includes things such as severe disfigurement, diabetes, controlled epilepsy, a history of mental illness and many more conditions, none of which would disable a person from active service in the Armed Forces. All we are talking about here is a right not to be automatically excluded from serving in the forces, not an automatic right to serve. No one is saying that any disabled person can perform any role in the services. All that disabled people want is the right not to be subjected to a blanket ban which says that the one thing a disabled person cannot be allowed to do is fight for his country.

The matter came up—this is my final point—on the Disability Rights Task Force, which sat towards the end of the 1990s and brought forward the recommendations that led to the setting up of the Disability Rights Commission, on which I had the honour to serve with the noble Baroness, Lady Campbell. The task force was nothing if not reasonable on this question. We acknowledged the defence chiefs’ concerns about being sued by disabled people claiming to do things that were unreasonable. However, the Act gives disabled people rights only to do things that are reasonable.

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We suggested that a code of practice should be drawn up to regulate what was reasonable in return for removing the blanket ban. I am sorry to say that this suggestion was never followed up. However, I tentatively put it forward again as a basis on which the Government could feel safe in removing the blanket ban on bringing service in the Armed Forces within the scope of the DDA during the passage of the Equality Bill.

Lord McKenzie of Luton: I start by thanking everyone who has contributed to this debate which has been extremely well informed, if somewhat challenging from a Minister’s point of view.

Specification of the UN Convention on the Rights of Persons with Disabilities as a Community treaty under the European Communities Act 1972 may be a somewhat technical issue but nevertheless is a crucial step towards ratification of the convention, and one which must be in place before we can ratify. The convention itself is a very significant landmark for disabled people and their organisations, and for the Government and society as a whole. The noble Baroness, Lady Campbell, expressed that most forcefully. I am delighted that she is able to join us given that she had double duty in another place.

Several points about the Government’s proposals for ratification have been raised in the debate. I shall attempt to deal with as many as I can. As I said in my opening remarks, we need a formal government response to the JCHR report. As I indicated, we hope to move that forward fairly swiftly. I cannot guarantee what it will say or whether it will change anything that I am referring to now. The parliamentary scrutiny of treaties was raised by the noble Lords, Lord Lester, Lord Hannay, Lord Maclennan and Lord Skelmersdale, and by the noble Baroness, Lady Thomas. The point was made that the fact that we have a specification process in this case gives us a rare opportunity to debate treaties. Noble Lords called, not unreasonably, for Parliament to be able to scrutinise proposals to ratify treaties, and for proposals to enhance scrutiny to be brought forward. The Government intend to introduce before the Summer Recess the Constitutional Renewal Bill covering the ratification of treaties. I hope that news is welcome to those who have concerns about this.

I wish to pick up on one or two other points about ratification. The noble Lord, Lord Hannay, sought an assurance that we do not have to wait for the European Community to go through its ratification process before we can complete ours. I am advised that the answer to that is clearly no and that we will move ahead and ratify as soon as we can. The noble Lord, Lord Skelmersdale, asked whether our reservations and declarations have to be attached to the European Community’s ratification, and the answer to that is no as well. Our reservations and declarations reflect domestic UK needs. However, the European Community proposes to enter a complementary reservation to ours to cover the position of service in the Armed Forces.

6.30 pm

Lord Skelmersdale: Is that the only reservation that the new instrument will incorporate? What about the other two?



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Lord McKenzie of Luton: It is the only one that we are aware of. The EU and all member states are doing what we are doing at the moment. Those who have not ratified have to go through the process of reviewing their legislation practices and so on to see that there is compatibility.

Perhaps I can deal with one other general point, which the noble Baroness, Lady Campbell—

Lord Lester of Herne Hill: I am dismayed. Is the position that the UK Government, having decided on a very broad reservation about the Armed Forces, are saying that within the European Community there should be a matching Community-wide provision that would apply to the 27 member states? I hope that that is not what the Minister is implying. He will probably not know that so far as sex discrimination is concerned, EU law prevents such a broad exclusion, which is why we do not have it in our domestic law. It does not apply to the disabled, unfortunately, but surely the United Kingdom should be setting a good example, as the noble Lord, Lord Hannay, has indicated, by seeking a narrow exception across the European Union rather than by crafting a broad one and then getting a matching one for all the member states. Is the position that we are promoting a similar reservation to our own across the EU, or is it that, for some other completely separate reason, the EU wishes to have something as broad as this? Is the dog wagging its tail or the tail wagging the dog?

Lord McKenzie of Luton: I understand the point that the noble Lord is pressing me on. I see that the Box is scribbling a note and coming to my aid, so perhaps I might come back to that before I have finished dealing with the rest of the debate.

A number of noble Lords spoke about the reservations and the interpretative declaration. The noble Lord, Lord Lester, asked whether the Government agree that there should be as few reservations and declarations as possible. Our answer to that is yes, clearly we do. However, we do not consider that the handful we are proposing are excessive in this context, and we are proposing to enter them only where we consider there is a need. The noble Lord also asked whether the Government should be committed to making the legislative and other changes necessary to enable them to be withdrawn as soon as possible. The Government have made clear that the reservation in respect of arrangements for the review of benefit appointees will be removed when the proportionate system of review is introduced and the reservation in respect of liberty of movement will be reviewed after 12 months. The need for the other reservations will also be kept under review and where reservations become redundant they will be withdrawn.

The noble Baroness, Lady Campbell, raised the same point and asked whether there should be a commitment to review all reservations in 12 months. All the reservations will be subject to periodic review and where they are no longer needed they will be removed. The noble Baroness particularly emphasised the need for that review and I anticipate that the Equality and Human Rights Commission, in its role

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as part of the independent monitoring framework, will ensure that the Government are mindful of that, and rightly so.

There were many comments on education issues, not all taking the same position, from the noble Lords, Lord Low and Lord Skelmersdale, and the noble Baronesses, Lady Campbell and Lady Thomas. Concern has been expressed that the reservation and interpretative declaration in respect of education are unnecessary and that other countries with education systems similar to ours have not found it necessary to enter either. Germany was mentioned several times, including by the noble Lord, Lord Hannay. I reiterate that, although I cannot comment on the basis on which other countries may have come to their conclusions when ratifying, the UK Government consider both the declaration and the reservation necessary.

I note the concern expressed by noble Lords that the education reservation and declaration represent a change in policy. Let me be very clear: that is not the case. The purpose of the proposed declaration and the reservation is to maintain the present policy and legislative provision for inclusive education, which, in the UK, includes a range of provision including mainstream and special schools. I assure noble Lords that they do not represent a dilution of our commitment but are intended to make the UK’s current position clear. The interpretative declaration is proposed to make it clear that the UK’s general education system includes both mainstream and special schools and thereby clarifies how the UK Government interpret the convention. That will make it clear that special schools are considered part of the UK’s general education system and that parents have a right to express a preference for a special school. The reservation is proposed to allow for specific circumstances where disabled children's special needs may be best met through specialist provision, which may be some way from their home, so that they will need to be educated outside their local community. That also maintains parental choice for schools outside the local community.

Lord Hannay of Chiswick: On this point, can the Minister explain what the reservation adds to the interpretative declaration on education? It seems to me from this debate that there will be quite broad support for the interpretative declaration explaining what we actually do and how we interpret the obligations under the convention, but I fail to see the need for a reservation. Reservations are far more damaging than interpretative declarations.

Lord McKenzie of Luton: My understanding is that the reservation is to deal with the point that for some children specialist provision—which I think that there is agreement should be a part of our inclusive system—may be some way from the home. I think that that is why that reservation is lodged. I see the noble Lord shaking his head. I will certainly review that and I am sure that we will pick that up more specifically in our response to the JCHR report, but I think that that is the purpose of the reservation. The thrust of the convention is the right to have education in your local community, but some special schools may be some

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way away from someone's local community. We see inclusion as being about the quality of a child's experience and providing access to a high-quality education that enables them to make progress in their learning and to participate fully in the activities of their school and community.

I am conscious that there is not an identical view among noble Lords about the extent to which special schools should be maintained, but I am trying to set out the Government's current position on education and special schools. Given that that is the Government’s position, it is appropriate to have both the declaration and the reservation—the latter, perhaps, on the narrow point that I have just outlined.

One noble Lord raised the issue of Northern Ireland. The Northern Ireland Executive has been fully consulted throughout our work towards ratification of the convention and we understand that the Executive support the proposed basis for ratification. No concerns have been previously raised about the proposal to enter the declaration and reservation on Article 24. My honourable friend Jonathan Shaw is seeking clarification from the First Minister and the Deputy First Minister about Northern Ireland's overall position.

A number of noble Lords asked about the Armed Forces. The rationale for the reservation is based on the need to maintain the operational effectiveness of the Armed Forces, and that relies on teams consisting of fully able personnel who can meet a worldwide liability to deploy. Armed Forces personnel therefore need to have a robust constitution both physically and mentally to serve in situations where they may be called upon to work for prolonged periods under difficult and stressful conditions in arduous terrain. It has been suggested that the fact that the Armed Forces retain a number of personnel who become disabled in the course of their duties, a point probed by the noble Lord, Lord Skelmersdale, is evidence that the reservation is necessary.

We would agree that there is a clear moral obligation for the services to look after personnel who have been injured. Rehabilitation can often best be facilitated within a military environment, particularly as the individuals concerned often have relevant experience which can be exploited to the benefit of all serving. Cases are considered on an individual basis against manpower requirements, and while the services have continued to retain those people injured on operations who wish to stay, where necessary in an alternative role, they do not artificially create posts to accommodate them. There is a fundamental difference between retaining someone who has relevant military experience and recruiting someone with no previous experience and is unable to meet the standards required.

Lord Lester of Herne Hill: I am grateful to the Minister. I understand everything he has said, but what is not clear is why a narrow reservation to deal with the point made by the noble Lord, Lord Skelmersdale, would not suffice. Why is it necessary and proportionate to have a sweeping reservation that excludes from the entire employment and occupation provisions both under the convention and in the Equality Bill under our domestic law every aspect of recruitment,

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training, promotion, terms and conditions and terms of service throughout the entire Armed Forces? I do not understand why anything the Minister has said so far indicates the need for that kind of reservation when, as the noble Lord, Lord Hannay, has indicated, it does not apply to the police, the fire service, and certainly not to women, transsexuals or others under existing domestic law. Again, why is it necessary to have this extraordinary reservation in place? Indeed, where is the EU competence for a similar reservation to enter into EU law if that is what is proposed?

Lord Skelmersdale: All I can say to that is “ditto”.

Lord McKenzie of Luton: Let me acknowledge the concerns about the breadth of this reservation, which have been powerfully made. However, I have tried to set out the Government’s position. There is also an issue about the ECHR’s request for evidence in relation to the proposed reservation, and indeed the noble Lord referred to the correspondence with the Secretary of State, John Hutton. There is a general question about whether the reservation will be reviewed, and of course the answer to that is yes, it will. It will be kept under periodic review as part of the process of monitoring and reporting on the convention. This, of course, is not related to the Equality Bill. The noble Lord identified that legislation which was published, I think, on Monday, but it does not itself remove the necessity for a reservation in this area. I should also say that the reservation, as I understand it, does not preclude the Armed Forces from recruiting disabled people into the services. It is not a blanket provision, but judgment on these issues has to be provided. That is the thrust of the point. Perhaps I may refer to what the noble Lord, Lord Lester, said about the UK’s position in relation to the European Community. It will enter into a reservation that effectively mirrors that of the UK. We understand that that will not be outside compliance with Community law. It of course does not require other member states to enter an equivalent reservation. I can see the challenge that might come from the noble Lord about where Community competence runs on that and where that puts other member states. I will have to take further advice on that.

6.45 pm

Lord Hannay of Chiswick: It would be helpful if the noble Lord could write when he has had an opportunity to reflect on this. I am not very familiar with this particular area, but I have a certain familiarity with the EU. My assumption is that the EU is signing and ratifying this treaty only for areas where it has competence. It is not signing and ratifying it on behalf of all 27 member states wherever they have competence, which is why we are ratifying it ourselves and why we are entering reservations. If I have got it right, all our reservations as I see them are in areas where the European Union does not have competence directly. Certainly, regarding the Armed Forces, unless we are going to follow the noble Lord, Lord Pearson of Rannoch, galloping down the route towards a European army, I am not sure where the European competence for that comes. It would be a great pity if we were

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driving the European Union into making a reservation that was basically unnecessary. However, I am happy to await a reply from the noble Lord when he has taken further advice on that point.

Lord McKenzie of Luton: I am grateful to the noble Lord for allowing me that route to deal more specifically with that reasonable point, which deserves a proper, full and complete answer. I will make sure that that is forthcoming, if not through our response to the JCHR report, then otherwise in correspondence.

Noble Lords also asked about the reservation relating to immigration, the Australian approach to the right of freedom of movement and the review of our reservation after 12 months. Again, I cannot comment on the rationale or merits of the Australian approach. Our assessment has been that a reservation in the terms we are proposing is necessary.

However, as I made clear in my opening remarks, the Government are committed to reviewing this reservation 12 months after the UK has ratified the convention so that we can assess whether there is a continued need for it in practice. As we have made clear, disabled people and their organisations will be consulted at an early stage to ascertain how they can be involved in formulating the review. I hope that noble Lords are happy with the starting scope of that; namely, that the process to review it would find favour.

Lord Skelmersdale: Before the noble Lord leaves that point, will he confirm my understanding that it is there only for health reasons and for no other?

Lord McKenzie of Luton: I do not have the detailed wording in front of me. No, the reservation certainly covers health issues, but it is not limited to that. Again, I will look to the Box for some support on that later.

I hope that it is clear that, while we consider it necessary to have a reservation in respect of the arrangements for social security benefit appointees, we intend to remove that reservation as soon as is practical. We anticipate that it will take at least two years before that is possible. Given the number of customers with appointees estimated at half a million, introducing a review system would be a huge undertaking and we need to make sure that we get it right.

The noble Lord, Lord Lester, asked whether we should take the opportunity of the Welfare Reform Bill to ensure that the review system can be put in place. But at this time we do not think that we will need to make changes to primary legislation and have no plans to do so in the Welfare Reform Bill. Therefore, we believe that it is not necessary to have that in primary legislation.

The noble Lord, Lord Skelmersdale, asked about the timing of the review. I have indicated that it could take up to two years. We are scoping the task at the moment, which is neither simple nor small, given that half a million people might be affected by it. Introducing the review system will be a huge undertaking, but it is important that we do it.



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A number of noble Lords expressed concern that we are proposing to make more reservations than other countries, and that this could jeopardise our standing with other countries or send a signal that the UK has concerns about the contents of the convention. However, the Government’s view is that comparisons cannot be made on the basis of the number of reservations and/or interpretative declarations made by other countries. Countries have different cultures, different ways of doing things and different legal systems and policies, which may raise different issues. Whether that is us being meticulous or pernickety I leave to noble Lords to judge for themselves, but we believe that it is the right approach.


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