From civil rights to human rights? Has UK disability rights been reframed since 2010?

I’ve written frequently over the past 5-6 years about what I’ve regarded as the dangers inherent to confining disability rights activism to an anti-austerity frame. This is not because I am pro-austerity or believe that it should go unchallenged – quite the opposite. It’s because I fear doing so in such narrow terms risks reinforcing prejudices that disabled people are passive objects of charity, State or otherwise and that disability is synonymous only with ‘welfare spending’.  That, in turn, will, I believe, further undermine political and wider public support for the social change necessary to build an inclusive society.

In response to what I have argued, some people countered that the disability equality agenda of the 1990s and 2000s, which focused on ‘full civil rights’ and ‘non discrimination’, failed to account for the support that some disabled people required to take up such opportunities, and moreover, its ambition was in some cases beyond the reach of some people, especially those with chronic health conditions.   In sum, it’s been argued that some people are dependent on social security benefits to achieve inclusion and for basic survival and that we shouldn’t be helping to sustain narratives that deny this reality.   Moreover, without adequate food, shelter and support with day to day living we rob people of the hope and agency necessary to make equality policies work.   As the late Sir Bert Massie said of under-investment in social care back in 2006:

‘some disabled people have been invited to look up at the stars while having the rug pulled from beneath them.’

This latterly caused me to identify the ‘fault-line’ in the disability rights activism of that period as being its neglect of economic and social rights. I quoted the anti-apartheid campaigner and South African Supreme Court judge Albie Sachs who said of the inclusion of economic and social rights in the South African constitution:

‘it would have been ironical indeed had the struggle (against Apartheid) ended up doing little more than to guarantee people dying of hunger the inalienable right to use their last breath freely to curse the government.’

This fundamental weakness in UK disability rights meant that when austerity arrived we had little by way of a disability rights-based narrative or tools with which to respond and resist.  For example, when Jenny Morris and I worked as Specialist Advisers to the Joint Committee on Human Rights on its inquiry into independent living in 2011/12 we found very few of the 100+ witnesses referenced human rights when giving evidence on the impact of reforms and spending cuts.  This was why we spent so much time in the final report explaining what the right to live independently and to be included in the community (Article 19 CRPD) meant.

As austerity gained pace, this weakness quite naturally left the door open to narratives of vulnerability and victimhood to fill the void.  By way of illustration, to challenge disability discrimination in the mid-1990s and early 2000s we sought to cultivate public opposition to the idea that a person with mental health problems could be deemed incapable of being a productive employee, emphasising people’s strengths and potential. To challenge welfare reform since 2010, some campaigners seek to cultivate public opposition to the idea that people with mental health problems are capable of work, emphasising their fragility and lack of productive potential.  Both are calibrated to achieve legitimate goals in their own right: to challenge discrimination and to confront punitive welfare reforms. But they rely on entirely contradictory narratives concerning the most appropriate response to disability.

Recently, I’ve been writing a journal article with Liz Sayce that seeks to trace the impact that the UN Convention on the Rights of Persons with Disabilities has had in the UK since it was ratified in 2009.   It seems that the Convention – and human rights as a framing for disability rights advocacy – has grown in stature during a period that many regard as one of regression in the lived experience of many disabled people.   That might simply be because the Convention’s ratification coincided with the financial crash and emergence of the austerity era. Or because, having exhausted domestic legal and political remedies, activists turned not to the Convention but to the Committee on the Rights of Persons with Disabilities for support as a place of last resort. But I think the clue to the ascendance of ‘human rights’ within disability rights activism is also captured well by Theresa Deneger, the current chair of the UN Committee on the Rights of Persons with Disabilities in an article on the ‘Human Rights Approach to Disability’:

‘The social model of disability served as a stepping-stone in struggles for civil rights reform and anti-discrimination laws in many countries….…Within disability studies,  this rights-based approach in disability was characterized as a tool for stipulating citizenship and equality. To demand anti-discrimination legislation was a logical consequence of analyzing disability as the product of inequality and discrimination….

….The focus on rights was perceived as an alternative to needs-based social policy which portrayed disabled persons as dependent welfare recipients. Thus, anti-discrimination legislation was seen as a remedy to a welfare approach to disability. Disabled persons could thus be described as citizens with equal rights….…The shift from welfare legislation to civil rights legislation in disability policy became the focus of disability movements in many countries. ‘We want rights not charity’ was and still is a slogan to be heard around the world from disability rights activists….

…However, anti-discrimination law can only be seen as a partial solution to the problem. Even in a society without barriers and other forms of discrimination, people need social, economic and cultural rights. People need shelter, education, employment or cultural participation. This is true for all human beings, and thus for disabled persons. However, because impairment often leads to needs for assistance, it is especially true that disabled persons need more than civil and political rights….

 Degener makes the case for a human rights-based approach on the basis that:

‘….while the social model (of disability) supports anti-discrimination policy and civil rights reforms, the human rights model of disability is more comprehensive in that it encompasses both sets of human rights, civil and political as well as economic, social and cultural rights.’

The historic absence of human rights from the UK’s equality and social justice landscape was not unique to disability rights. Writing about the development of equality law and practice in the UK Fredman (2003) noted

‘in most jurisdictions, equality is firmly embedded within human rights law. By contrast, anti-discrimination law in Britain has emerged from labour law, and pre-dates human rights law by a long way…..

….it might have been expected that this would change with the incorporation (via the Human Rights Act 1998) of the ECHR. However, little attempt has been made to build bridges between the two jurisdictions.

Yet within disability rights, this appears to have changed dramatically.

Where the homegrown disability rights narrative had pushed questions of social security to the periphery, the UNCRPD and human rights have offered a rights-framework to encompass it, which in turn has grown in salience and stature because of austerity. It appears as a consequence that UK disability rights has shifted its framing from pursuing ‘full civil rights’ to seeking respect for ‘human rights’ since 2009.

However, by sometimes focusing on economic, social and cultural rights in isolation, under the rubric of anti-austerity, the problems that had led disability campaigners in the past towards anti-discrimination/civil rights framing may persist. Where the ‘civil rights’ frame may have neglected basic material needs in its focus on freedom and opportunity, we today risk cultivating a human rights approach that neglects freedom and opportunity by concerning itself only with basic material needs.

Doing so could turn back the clock, repeating what leading figures of Britain’s disability rights approach, such as Vik Finkelstein and Mike Oliver, warned of in the 1970s and 1980s. In particular, by focusing overwhelmingly on what Finkelstein termed ‘State Charity’ rather than full social inclusion – even with a human rights frame – it risks once again confirming societies view of disabled people as ‘passive objects’, not citizens and offers little by way of a vision for inclusion in which an empowering welfare state can be articulated and pursued.

There are also real risks that anti-austerity campaigns neglect to attend to the qualitative dimensions of welfare and social policies, focusing only on how much public money is spent, not how well it is spent to support choice, control and participation. Mike Oliver noted how in similar times gone by, disability campaigners ended up ‘defending the indefensible’ in the face of cuts, through seeking to maintain or restore policies and systems which in better times they had hitherto sought to reform (an example in recent times would be the defence of sheltered employment).

It also includes the question of who provides services. Anti-austerity campaigners, often ‘hard left’ aligned, seem to unquestioningly follow the public = good, private = bad doctrine, and be signed up to mass-nationalisation of services such as social care promised by Jeremy Corbyn without any evident attention to the capacity of a State monopolies to respect disabled people’s rights to choice and control (for which there are plenty of warnings from history if people would only take off their Loachian rose-tinted spectacles to see). While so-called ‘neoliberalism’ has become the bogeyman of anti-austerity campaigners, times past and present show, even within the doctrine of ‘from each according to his abilities, to each according to his needs’ discrimination towards disabled people can persist and fundamental human rights can be neglected. If in doubt, check out the ongoing scale of institutionalisation of disabled people in central and eastern Europe and the Baltic states or the situation of disabled people today in China. Poverty clearly plays a significant role, but lack of respect for civil and political rights paves the way to these ‘solutions’.  It would be extremely dangerous for disability rights campaigners to align with those who appear to wish to ignore the left’s own critique of the State, for disabled people’s human rights have consistently been the cost of this neglect.

Deneger’s answer to this is that:

‘While welfare policies and laws in the past have failed to acknowledge and empower disabled persons as citizens, laws on personal assistance services or personal budgets proved that even classical social laws can give choice and control to disabled persons.’

That is to say, it is ‘independent living’ as an idea that continues to offer the best way of fusing civil and political rights to choice, control and participation with economic, social and cultural rights to housing, supports and community based services, underpinned by common framework of principles including individual dignity, autonomy, equality and non discrimination.   As a unifying idea, it also offers a bridge between the civil rights campaigns of the 80s and 90s and the anti-austerity campaigns of today. It demands that we attend to the fault-line in disability rights activism that was so nakedly exposed by austerity, while challenging the neglect of civil and political rights by some anti-austerity campaigners.

On the question of framing, we need to avoid reinforcing negative frames which undermine the achievement of our goals or which alienate political and public support.  We need to learn from other successful agents of social change, such as the campaign for marriage equality, which consciously reframed its goal by stopping talking about ‘same-sex partnerships’ or ‘gay marriage’ because of the ‘othering’ effect of such language on public perceptions.  By resituating their goals within the frame of ‘marriage equality’ opposition diminished, support grew and change began to accelerate.   ‘Anti-austerity’ may also have such an othering effect where disabled people are concerned.  It also seems likely to convey to many ideas of unaffordability (living beyond our means) rather than unfairness.  And because it is clearly politically partisan as an advocacy frame it risks alienating support from conservatives and centre-left voters (who are the majority).  While ultimately an empirical question, requiring research, it might be far more productive to avoid talking about ‘ending austerity’ at all and instead to talk about ‘increasing investment.’

Focusing on investment in independent living also offers a much-needed thing, too often missing from oppositional campaigns and resistance movements, and something which has been a core feature of all successful disability rights campaigns: a vision of a better future.

 

 

 

 

 

 

 

 

 

 

 

 

 

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Don’t let hate crime awareness week be hate crime disinformation week

 

The latest Home Office Hate Crime statistics are out,  so its time for my now traditional annual diatribe against the misinterpretation, abuse and misuse of this information.

First of all, all hate crime, including disability hate crime, is an abomination. One hate crime is one too many. As an expression of more widely held prejudices it reminds us how far we have to go to foster equality and respect for human rights. We must do all we can to rid our society of such vile, oppressive behavior.   That means understanding why it happens, taking action to prevent it, ensuring people who experience it recognise and report it, ensuring that the police and others respect and listen to people when they do, investigate alleged crimes thoroughly and with the Crown Prosecution Service ensure perpetrators are punished for their crimes. It means ensuring government, the media or others avoid and are deterred from cultivating social conditions which are either permissive of such behaviours or which motivate them.

Disability hate crime wasn’t really recognised as such in the UK before the Criminal Justice Act 2003. The late Nick Russell joined forces with Stonewall and the Disability Rights Commission to secure s146 of the Act, which for the first time recognised hostility towards people on grounds of disability or sexual orientation as an ‘aggravating factor’ to be taken account of in sentencing.   It was several years later that Disability Hate Crime came to be recorded by the police, the Crown Prosecution Service (CPS) and in the Crime Survey. My team at the Disability Rights Commission played a crucial role, as did key people such as Paul Giannassi, Joanna Perry, Mark Brooks, Anne Novis, Stephen Brookes and Katherine Quarmby.   We picked up the thread when the EHRC took over from the DRC, first with seminal research into disabled people’s experiences of violence and hostility and then the Disability Related Harassment Inquiry.

Since then there have been various drives by government, police forces and the CPS, often working with disabled people’s organisations to drive up reporting and to ensure recording of disability hate crime.  Unsurprisingly, the number of disability hate crimes recorded by the police has as a result increased since it was first recorded in 2007, and it is these recorded crimes that the Home Office reports on. They are though but a drop in the ocean. Over 90% of disability hate crime incidents still go unreported or recorded. Yet the way these statistics are reported manages both to obscure this fact, whilst giving a completely misleading and harmful picture of what is really happening.

In the past 24 hours it has been reported – by disability charities including Leonard Cheshire, the BBC and others – that disability hate crime has risen by 53% in the past year and that such crimes against children have increased by 150%. Yet these alarming figures concern the numbers of such crimes recorded by the police, not overall incidence.   The most recent analysis of incidence by EHRC actually suggests incidence has declined since 2011 from an average of 72000 disability hate crime incidents a year between 2007-11, to 56,000 per year between 2011-12 to 2013-14, reflecting a decline in crime overall.

As I tweeted last week, disability hate crime is one of those issues where things can look worse at the very point they are improving. For example, in March 2016 the Metropolitan Police and Inclusion London launched Disability Hate Crime Matters which aimed to improve the identification, investigation and response by officers to disability hate crime (DHC) through awareness raising across the force.   In March 2017 the Independent Newspaper reported a ‘huge rise’ in Hate Crime across London, and that ‘Numbers of disability hate victims have increased by 216 per cent in the last year alone, up from 251 in 2015-16 to 794 in 2016-17.’  Of course some of this rise may be down to increased incidence, but much of it is more likely a result of the success of the efforts of the Met and Inclusion London.

So, incidence of disability hate crime appears to be going down, while reporting to and recording by the police is continuing to go up.   That suggests we are beginning to get a handle on it, which one might hope and expect a decade or so on.   But it is incredibly slow progress, which really should be the focus of the story.   In the week that women on social media have used the hashtag #metoo to convey the scale of sexual harassment and abuse, these statistics should remind us how so many disabled people continue to simply live with such behaviour and we should recommit to ensuring people do not suffer in silence.

The second problem I’ve written about previously is the misappropriation of disability hate crime for other political ends. Intuitively I share the belief that rhetoric surrounding welfare reform has made permissive and indeed fostered a hostile climate towards benefit claimants and I have read enough personal testimonies of people experiencing hostility that they regarded as being connected to presumptions about their benefit claimant status.   But the quote below from Linda Burnip, which appeared in the now apparently-regulated-by-IMPRESS online journal The Canary has absolutely no evidential basis whatsoever:

‘It is very sad to see that even disabled children are now viewed as unworthy and subject to abuse from the public. This is the direct responsibility of a callous and uncaring government who from 2010 onward has dedicated itself to promoting the scrounger rhetoric in relation to disabled people, leading to a massive increase in hate crimes.’

As I have already explained, there has not been a ‘massive increase in hate crimes’ there has been a decline, according to official crime statistics, and that decline coincides the very period Burnip is referring to. If so called scrounger rhetoric was so central a cause of disability hate crime, one might at least expect a ‘blip’ coinciding the period before the Welfare Reform Act 2012, just as the latest Home Office statistic release reports a blip in racial and religiously motivated crime around the time of the EU referendum. Yet there is nothing in the overall incidence or stats on reporting of Disability Hate Crime to indicate this.   Moreover, there was nothing in the stories of disabled children’s experience of hate crime covered by the BBC linking it to so-called scrounger rhetoric either.   This did not stop Steve Topple from the Canary tweeting that the ‘biggest rise’ in disability hate crime was for disabled people, accompanied by an image of a person in a wheelchair being thrown off a cliff and the DWP’s logo. When I challenged and suggested he was abusing and exploiting the statistics for politics he replied that I was someone who ‘would prefer disability not to be an inherently political issue, when it is’ adding with a charming flourish ‘Bored of your trolling. Do fuck off.’   Disability hate crime is a political issue, just as welfare reform is a political issue. It’s just that they’re not the same political issue.

So I will fuck off in a moment. But before doing so, I’ll explain why I believe this misinterpretation, disinformation and misappropriation needs to end. First, because it causes alarm and needlessly increases the fear of crime, which evidence shows has a hugely negative impact on people’s lives as people take steps to avoid it, like never leaving the house at night. But perhaps more importantly because it is failing past, present and future victims of disability hate crime to obscure the facts, divert people from the real problems and to misdiagnose the causes in the pursuit of other political agendas.

So lets actually become aware this hate crime awareness week and really get a handle on eradicating the scourge of disability hate crime.

Bon voyage, Sir Bert

bert-massie

I knew Sir Bert Massie, who sadly passed away yesterday morning, for about a quarter of a century. I first encountered him as Chief Executive of RADAR when he was campaigning for what became the Disability Discrimination Act, for accessible transport and – critically – for accessible housing. Then, somewhat naturally, Bert became Chair of the Disability Rights Commission, leading several years of largely unbroken progress on disability rights.   I joined the policy team there in 2001 and became Head of Policy in 2004. It was only then that I got to know and to learn hugely from Bert the man: his history, what drove him and how he did business. Our paths then diverged for several years before I received a call from him while I was on holiday in 2013, asking if I’d join a commission on disability and poverty which the Labour Party had asked him to Chair. I didn’t have to think about it for long. Both before and afterwards he supported and encouraged me and I’ll be forever grateful.

Born to a working class family in Merseyside, Bert contracted Polio and spent much of his childhood in and out of hospitals and special schools. He left school without qualifications, but latterly took classes – which he persauded local nuns to teach him as no schools or colleges were accessible – passing his O levels before going on to study for his A levels at a specialist college. He graduated from Liverpool Polytechnic before completing a Certificate on Social Work at Manchester Polytechnic.  Many people claim to have pulled themselves up by their bootstraps – his was the real deal.

This early life clearly underscored his outlook, attitude and approach. He never gave up imagining the world could be a better place for disabled people. At the same time he was a realist and a gradualist rather than a revolutionary, though this was driven by a constant itching for progress rather than complacency with the status quo. I just don’t think Bert believed that there was a ‘magic bullet’ in terms of an ideology, single piece of law or approach that would solve all the world’s ills (and time is proving him right). A consummate negotiator, he was able to work across political party lines with a deep understanding of how politics and government worked: do deals; support the civil servants; become confidante to the Minister.   I’ll never forget the way Bert wheeled himself into position to obstruct Tony Blair’s path to his conference speech, securing a handshake and a ‘hello Bert’ in front of the world’s TV cameras before Blair was able to move on.  That same operator that secured an education from nuns secured countless commitments from some of the most senior and influential figures of the past 50 years.

Sadly, this approach would see some disability activists cast Bert as being too cosy with government. But as any Minister will tell you, that ‘cosiness’ came with a price and Bert’s legacy is intact.

Despite being hugely well connected, Bert remained rooted in the real world. I’ve never seen him more relaxed and at home than in his native Merseyside where we met as the Labour Disability and Poverty Commission. He would engage in the detail of policy, think and act strategically and politically at the highest levels of society but he was always driven by one thing only – the wellbeing of disabled people. This is why, when some disability activists saw him as the enemy, many more regarded him as a folk hero – as someone forever one of them and on their side.   Of course that ‘folksiness’ would sometimes collide with the modern world. Let’s just say Bert could be a man of his generation from time to time….

As for those who doubted Bert’s radicalism, I’ll end with a story about the Labour Disability and Poverty Commission.   We had one meeting at Portcullis House in Westminster where we were greeted by Rachel Reeves, then Shadow Work and Pensions Minister.   As Rachel removed the cellophane from our sandwiches, she repeated very clearly that our terms of reference meant that we should not put forward proposals that exceeded current spending levels.   Of course Bert agreed politely, but as soon as she was gone he was having none of it believing Labour had to challenge the doctrine of austerity and I imagine knowing deep down that the austerity straitjacket would eventual loosen. While our final recommendations included ideas for reducing disability-related costs at source and for making better use of existing resources, slap bang in the middle was a proposal for a new ‘Disability Costs Allowance’ to replace PIP – an idea Bert brought to the first meeting and which frankly was going to be in the final report no matter what, reflecting as it did a lifetime of campaigning. This had a price tag of £Billions and perhaps unsurprisingly the Labour Party sank the report, casting it as little more than a consultation response, despite having commissioned Bert to produce it.

Time will tell whether his idea ever comes to fruition (and I hope Labour might honour Bert’s memory by taking another look), but Bert made very clear his rationale for ignoring Reeves’ advice:

‘We’ve been given this opportunity and we just can’t let disabled people down.’

 

 

 

 

 

 

Enough is enough – can we reconcile fairness, security & human rights?

Anyone in the business of defending or promoting the importance of universal human rights must contend with two major features of UK public attitudes and their underlying values: the prioritisation of security over freedom and a deep belief that rights are commensurate with responsibilities.

Too often human rights have been framed as a constraint upon the ability of the State to protect the public. In the wake of the London Bridge attacks in June, Theresa May announced ‘enough is enough’ and pledged to scrap human rights laws if they stood in the way of fighting terrorism. Responding, Keir Starmer drew on his time as Director of Public Prosecutions to patiently explain how the Human Rights Act had never got in the way of prosecuting terrorists. Yet as Professor George Lakoff has advised, ‘negating a frame reinforces a frame.’   Starmer’s response did nothing to change the fundamental polarity – of human rights being framed as something potentially in contest with the task of keeping the public safe from harm.

Fairness is a common value, but most people’s conception of fairness is ‘you get out what you put in’ and ‘you reap what you sew.’   This is a major challenge to the human rights concept of fairness as equal treatment on grounds simply of membership of the human race. Many people consider it fair that people should forego their rights through their actions, or conversely that their rights must be earned.   When overlaid with people’s prioritization of security over freedom, advocating respect for the human rights of criminals (e.g. the right of prisoners to vote) or alleged terrorists (e,g. to not be deported) is inevitably challenging, if not impossible. This is of course why the detractors make so much of these stories. Further, as the British Social Attitudes found, attitudes to immigration – the driving force behind Brexit – and national security (and hence human rights) are entwined, collectively triggering fairness and security concerns.   Human rights defenders are assumed to support open borders, free movement and sanctuary for anyone claiming it and have done little to disabuse people of these assumptions.

Are these false or genuine dichotomies where perceptions of human rights are concerned? Is it a question of what human rights fundamentally are, or about how they have been used and characterised? Is our goal to encourage more people to prioritise freedom over security and to connect fairness to inalienable rights? Or do we need to find ways to work with the grain of common values and attitudes, sufficient that people associate human rights with feeling safer, and regard human rights as ground-rules for a fair society?

Whatever the answers, we have now to ask the questions.

After the UNCRPD examination – what now?

crpd room

So, 8 years in the making, the United Nations Committee on the Rights of Persons with Disabilities finally conducted its examination of the United Kingdom.   Their findings and recommendations – and in particular their view that UK government policy has led to a ‘human catastrophe ‘ received huge coverage, being the second story on the BBC’s Ten O’Clock News bulletin and featuring on Newsnight, Channel 4 News and across print media.   Disabled and Deaf People’s Organisations played a vital role in providing expert advice and evidence to the Committee and should rightly celebrate their success in influencing the outcome.

Having been involved in drafting two of the reports submitted to the Committee, I’m pleased to see a significant number of our recommendations included in the Committee’s final report, not least its calls for reform of mental capacity law and practice, the elimination of detention and deprivation of liberty on disability grounds, to refrain from the use of restraint in mental health settings and schools and to ensure evidence based practice to improve the employment of disabled people (and disappointed to see others – such as in relation to the unacceptable number of unexplained deaths of disabled people in State care, or the treatment of people with mental health problems in the immigration system, overlooked).

But it is now, as the dust settles, that the real challenge begins. Neither the Convention or the Committee’s findings and recommendations are self-executing. The Committee has been highly critical, but it has no powers of enforcement. To have any effect they will need to be embedded in strategies for social change.

Despite the devastating impact of austerity measures taking centre stage in both DDPOs own advocacy and the Committee’s criticisms, this is where achieving change is going to prove deeply, deeply challenging. Brexit is going to deliver a further deep blow to the UK’s economy, squeezing public resources further still and making spending choices ever more difficult, whatever Party or Parties are in government. At the same time, public support for spending on working age social security has been in decline for a quarter of a century, hence it will be a very brave party that spends scarce political capital taking a radically different course any time soon.  In turn there is a real risk that, having turned to the Committee as a last resort in fighting cuts, DDPOs and disabled people more generally will judge the Convention to be impotent, as this article by Mark Lambert appears tacitly to confirm.

So where might the Committee’s concluding observations offer opportunities, and how can those opportunities be leveraged? Here, we need to break things down into principles, structures and specific policy goals.

On principles, it’s vitally important to take heed of the Committee’s observation that the UK has failed consistently to incorporate ‘the human rights model of disability across all policy areas and all levels and regions of all devolved governments, and jurisdictions and/or territories under its control.’  This is not just a message to government, but to opposition Parties, disability charities and campaigners. As the godfather of British disability rights Mike Oliver noted in 1990:

“It is perhaps ironic that many of us spent the 1970s criticising the welfare state, only to find that these arguments were built upon and taken much further by a government determined to reduce state expenditure. Consequently we spent the 1980s defending what we had previously attacked. In sum, we defended the indefensible and I do not propose to spend the 1990s doing the same.”

Britain’s welfare state was not rooted in a ‘human rights model of disability’ nor was it ensuring an adequate standard of living and social protection prior to the austerity measures pursued since 2010, or the advent of Employment and Support Allowance. Framing the goal now as ‘system restore’ – to simply return to the pre-2010 situation, as some campaigners and the Labour Party appear to be doing – may have some short term expedience, but it will not address the fundamental disconnect between the outdated principles underpinning social security policy and that of modern day disability rights.   To Labour’s credit, it does appear to have at least begun to contemplate the idea that benefit eligibility assessments should centre on the interaction between people with impairments and health conditions and the external factors shaping their opportunities, as opposed to isolated assessments of functional capacity. Yet at the same time, it refers to disabled people as ‘our most vulnerable in society’, positioning disabled people as passive objects of State spending, not equal citizens whose rights and opportunities are suffering from disinvestment.

There are bigger debates in play about the future role of the State that have profound implications for disability rights, with which disabled people and their allies should be centrally engaged rather than – as Mike Oliver said – defending (or being used to defend) ‘the indefensible’. In sum, disability rights demands investment in disabled people’s right to live independently and to be included in the community – a springboard, not just a safety net.

That is why the most important set of recommendations by the Committee in my view concern Article 19 – the right to live independently and to be included in the community – and it is around the right to independent living that I believe all with a commitment to disability rights should coalesce. The Committee recommends that the State enacts a freestanding, enforceable right to independent living, conducts impact assessments to ensure policies support – and do not undermine – independent living, ensure adequacy of funding and have plans to ensure a full and sustainable transition from institutionalisation to community based living.   But a focus on independent living – and the principles that underpin independent living – offer a chance to create much needed cohesion across different policy areas (as the last Labour government had begun to understand). Independent living synthesises civil and political rights – governance over ones own life and equal participation in the community – with economic and social rights – access to the financial and practical support to make these rights a reality.   These same principles can apply from cradle to grave and create coherence between policy and practice in relation to children and education, employment, social security, health and social care, transport and planning and so on. Indeed the ’12 pillars’ of independent living were designed to do just that.   In her excellent new blogpost, Jenny Morris explores how the right to independent living can be given effect.

This leads to the question of structures to achieve policy coherence. The Office for Disability Issues was conceived specifically to address this but is woefully under-resourced and seems to lack the political support it enjoyed at its inception. The status of the government’s ‘Fulfilling Potential’ strategy is unclear, while its content appears to be a series of moving targets with no clear end game in sight. While a cross Ministerial group was in existence, it’s unclear whether it has made a difference. The deep involvement of disabled people which marked the early life of the ODI appears to have been replaced by passive, infrequent consultations, while DDPOs, so central to the enterprise of advancing disability rights have faced severe resource constraints. The EHRC and its sister organisations in Scotland and Northern Ireland lack sufficient, sustainable resources to promote and enforce the law independently.

One can look at fixing the above simply as a set of costs. But it is the absence of this structure that is costly: policies conflict and cancel one another’s intended benefits; employers and service providers discriminate with impunity, with costs born by the benefits system or social care; where civil society is weak, the State picks up the bill.   The disinvestment in structures for implementation is a false economy.

So, independent living and the principles underpinning offer guiding principles to a create a coherent, human rights based approach for implementation, while structures for implementation and monitoring must be re-built or made new, taking account of the sometimes radical changes in the machinery of government over the past decade.

Sadly, with Brexit proving all consuming politically, the chances of central government leading a radically new agenda do however seem slim, even if the political will is there. To those ends, I found it interesting that the Committee felt able to celebrate (albeing somewhat questionably with little equivocation) efforts in Scotland and Wales and the lesson there is that positive change can happen, both because of and despite devolution and localisation.   In the week we mourn the passing of one of UK disability rights’ greats, Lorraine Gradwell, who helped chart a course for disability rights in Manchester way before the rest of the country caught up and who continued to spearhead innovative approaches in areas such as employment support despite the corrosive effect of welfare work policies, it’s always worth remembering that independent living began, just as it should end – in the ‘small places close to home’.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In memory of Jan Sutton, a ‘striver’

Jan

 

For all the recent talk of online abuse it’s easy to forget the awesome positive power of social media to include, to connect, to mobilise and democratise, providing platforms and access to those who have historically been locked out of the ‘public square’.

Jan Sutton knew that power well and used it to huge effect. Jan’s MS and the fatigue it caused made participation in the physical world extremely difficult, yet as people have come to hear of her death last month, it’s clear that Jan was nevertheless everywhere.   Whether on posters around the country for Act for the Act, on videos for Equally Ours, at conferences, taking part in training sessions, and with me delivering them via Skype, in the blogosphere and of course on Twitter.

Jan’s chief passion was to promote the importance and value of human rights to all of us and to defend the legislation that protects them here in the UK, the Human Rights Act, which she did with every shred of her spare energy. Jan’s contribution also enriched human rights campaigns, clearly and authentically demonstrating why human rights matter so much in the ‘small places close to home’.   As Jan said in a blog for Authors of Our Lives in 2014 ‘I choose to out myself as a ‘striver.’ For her striving Jan won the Liberty ‘small places close to home’ award in 2015

Social media has transformed disability rights activism.   Despite the language of inclusion, it’s increasingly clear that many had been left on the margins or excluded altogether – their voices and lived experience given little or no attention. Social media has changed that, completely transforming the landscape, by opening up activism through networks such as Disabled People Against the Cuts, Spartacus Network, Justice for LB and Crip the Vote and to individual voices such as Jan’s.   I’ve little doubt established disability rights campaigners would have challenged austerity. But the combination of austerity and the emergence of social media has also challenged disability rights activists to think differently about disability rights, in particular by paying more attention to long term health conditions, their effects and the specific barriers experienced.

As the Seven Days of Action campaign recently showed, social media based campaigns, led by those with direct experience and often with little or no financial resources, are achieving what the best resourced charity communications departments often fail to do. This has re-balanced power, away from the well-funded charities, has enriched the debate and resulted in better-informed campaigning.

Writing in 2014, Jan said of disability rights ‘I believe it’s time for us to help society to write a different story.’  In bidding a sad farewell to one of its chief authors, I nevertheless look forward to reading the next chapters online as well as off.

Incorporating the UN Disability Rights Convention into UK law – what would it mean?

UN

At the recent UK General Election the Labour Party made the following commitment:

‘We will build on the previous Labour government’s commitment to people with disabilities in 2009 as signatories to the UN Convention on the Rights of Persons with Disabilities, and incorporate it into UK law.’

When I asked the shadow Minister for Work and Pensions Debbie Abraham MP what this meant on Twitter she replied:

‘It means we take it seriously Neil unlike Tories who UN found to have committed ‘grave…systematic violations ‘ of UN CRPD.’

Pressed further she replied:

‘Ltd on twitter so come along to one of our next Disability Equality Roadshow events so we can discuss.’

I will certainly take Debbie up on her offer as her answers provide no real clues.  In the meantime, it’s worth noting that different countries around the world take different approaches to meeting their international treaty commitments.  Broadly they fall into one of two categories ‘monist’ or ‘dualist’.

In a pure monist state, on ratification international law is just incorporated and has effect automatically in national or domestic laws.  A person is then able to assert international law in domestic courts in the same way they might national law.

In a pure dualist state, for international law to become national law it must first be ‘translated’ into national law.  This means old laws have to be repealed or reformed and any new policies or law proposals examined to ensure compliance.  Failure to do so amounts to a violation of international law.  However, a person cannot assert the international law in domestic courts (though Courts can refer to international law for guidance as to the meaning of rights).

With respect to international human rights law, with the partial exemption of the European Convention on Human Rights ‘translated’ into UK law by the Human Rights Act, the UK has adopted the dualist approach.  Hence the UN Convention on the Rights of Persons with Disabilities is not part of UK law and compliance is achieved via ensuring consistency between domestic law and policy and the Convention.  The process involved in such translation can be seen in debate surrounding the development of the Care Act 2014 or in the recent report by the Law Commission on reforming Deprivation of Liberty Safeguards where the CRPD’s meaning and significance is analysed.

Hence Labour’s commitment to ‘incorporate’ the Convention may mean no more than committing to do what it accepted to do when ratifying the Convention in 2009: to be  rigorous in ensuring compliance of existing and future law and policy.  Or in Abraham’s words ‘to take it seriously.’   That would of course be a very welcome thing.

But Labour could signal its seriousness by going a step further and introducing a duty of ‘due regard’ on Ministers and public bodies, similar to ‘The ‘Rights of Children and Young Persons (Wales) Measure’ 2011 which placed a duty on all Welsh Ministers to have due regard to the substantive rights and obligations within the UN Convention on the Rights of the Child and its optional protocols.  The Joint Parliamentary Committee on Human Rights has recommended a similar approach with respect to the UK’s economic, social and cultural rights obligations.

Or Labour could be truly radical and depart from the UK’s ‘dualist’ approach and to adopt a ‘monist’ one, with the UNCRPD enjoying equal status to our domestic law.   One would assume if it did so, that it would at the same take this approach with respect of all international law to which the UK was a party.   This would enable a disabled person in the UK to, for example, assert their right to an adequate standard of living under Article 28 of the CRPD in a UK Court, which may subsequently find prior welfare reform legislation, or a government budget, or a decision of a DWP assessor, to have been non compliant.

My prediction would be that Labour is promising just to meet existing commitments. I think the third option – monism – is way off the agenda.  The bold, fresh, but pragmatic move would be the second option – strengthening the domestic legal obligations of Ministers and public bodies to ensure compliance.

I look forward to hearing more.

 

 

 

 

 

 

Disability rights in the ‘post Truth’ era

‘The role of fake news’ and ‘alternative facts’ is arguably dwarfed by the general elevation of feeling over thinking as the benchmark for truth.’  Jamie Bartlett

Last week I made the mistake of alerting a person on Twitter, and the person who had just retweeted her tweet to several thousand others, that the article she had just posted was factually inaccurate.   Sometimes inaccuracies are minor and unimportant, but this one concerned the suggestion that 4000 people died within a few weeks of being declared ‘fit for work’ by the Department for Work and Pensions, latterly debunked by the independent organisation Full Fact.  In reply I was accused of defending the Tories and then blocked.

Now, I’m not sure it would be fair to refer to the initial misreporting of these statistics as ‘fake news’. More accurate and reasonable would be to call it ‘confused news’. The statistics on which the articles were based were released by the DWP following a Freedom of Information (FoI) request and are not clear. But while there is anecdotal evidence of benefits administration and decisions being linked to avoidable deterioration in health and possibly hastening death, the FoI data does not itself provide any conclusive evidence to these ends. In sum we presently have no way of quantifying how many people may or may not have died for reasons connected to the administration of their benefits claim (see this letter from the Statistics Authority to government recommending government carries out research to these ends).   The numbers provided by DWP are essentially meaningless in this respect. Despite this, the fact that the evidence also fails to prove that people didn’t die for reasons related to the administration of benefits has allowed belief to fill the gap.   Such is the deficit of trust between campaigners and government that the latter stands guilty until it can prove its innocence. The bigger the gap in the evidence, the greater the belief that it is guilty as charged.

Hence it is in the circulation and recirculation of these reports, even after they had been debunked, that so called ‘post truth’ has taken hold. ‘Post-truth’ was the Oxford Dictionary’s word of the year for 2016, defined as an adjective “relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.”

We have seen this elsewhere in the disability world in recent times.  For example, the belief that disability hate crime is rising exponentially and as a result of ‘scrounger rhetoric.’   Official statistics from the Crime Survey, analysed by EHRC, show overall incidence of disability hate crime has declined – including through the period when so called scrounger rhetoric was most prevalent in the press – from an average of 77000 per year to an average of 56000 per year.   At the same time there has been rise in disability hate crimes recorded by the police from 1748 in 2011-12 to 3629 in 2015-16.   It is the statistics regarding recorded crime that are seized upon and misrepresented. For example, in 2015 the Scotsman reported a 270% rise in disability hate crime in Scotland. In fact this wildly overstated a pretty paltry increase of 129 more reports in 2015 than 2011.

It is said that truth is the first casualty of war and I’m quite sure some consider themselves justified in peddling untruths in order to hurt the government.   Sadly, I believe the only people they are hurting are themselves and other disabled people.

The pre-occupation of campaigners with deaths and violence is about crafting a narrative of a ‘cruel government’. It rests on an assumption that by emphasizing the alleged gravity and scale of what is happening to disabled people then the media, politicians and public will be persuaded – or shamed – into action. In fact, evidence suggests it has the opposite effect, as the Frameworks Institute have explained:

‘Crisis framing emphasizes the overwhelming scope of a problem, using numbers, facts, and vivid examples as evidence of great urgency. Using crisis language is a common strategy; communicators assume it will boost people’s sense that an issue must be solved and increase support for solutions. Communications materials in this sample used crisis language to emphasize the extent to which people with disabilities face discrimination, disadvantage, and abuse.

FrameWorks research and other social science studies have consistently found crisis language to be ineffective. Rather than causing people to want to fix a problem, crisis frames actually immobilize people leading them to conclude that the problem is too big and too overwhelming to solve and that no viable solutions exist. In this sense, crisis language is likely to depress, rather than elevate, issue engagement and support for solutions.’

At the same time as being an ineffective way to win support, it is also hugely destructive to disabled people themselves while undermining the ability to hold the responsible to account and to focus on solutions.

It is well known for example that people’s fears about being a victim of crime tend to exceed the actual probability of their becoming a victim of crime and that these fears act as a constraint on their lives. Headlines erroneously screaming about 270% rises in disability hate crime needlessly compound its impact on the lives of disabled people, while obscuring the real problem: the gap between overall incidence and that reported to and recorded by the police.   That is to say, the real issue that must concern us about disability hate crime is not that incidence is rising – it isn’t – but that over 95% of all incidents continue to go unreported and hence not enough is being done to bring incidence down. That’s where the focus of campaigners should be.

Similarly with respect to policy and the administration of social security benefits, very real problems clearly exist which have and continue to cause deep anxiety among those who are the object of the Work Capability Assessment.   There is evidence implicating the tests with respect to people’s subsequent decision to take their own lives.   But let’s imagine then that a person with mental health problems, already anxious about their upcoming test reads the following quote in an article about the DWP’s policy on suicides:

‘This (the WCA) is now the most concerted attack on disabled people in western Europe since Germany’s Chancellor Hitler signed the executive order Aktion T4 in 1939 to murder disabled people the state judged ‘unworthy of life’

A supposedly credible source of disability news carries a quote suggesting that the WCA is not simply a flawed mechanism to determine benefit entitlement, but a deliberate attempt to kill people, albeit by their own hands, of equivalence to the action of the Nazi’s and it purports to be concerned about people’s mental wellbeing and anxieties? Circulating the unsubstantiated claim that 4000 (or sometimes it is suggested 10400) people died following a determination that they were fit for work also seems likely to cause untold damage while having marginal impact on policy or public opinion.

What does hurt government is the twin facts that (a) the WCA has cost taxpayers a fortune while not reduced public spending and (b) fails to ensure that the right people get the support that they need.   That again is where campaign communications should focus.

As I have written before, the connective tissue in these narratives is of disabled people as  victims – as vulnerable objects.  They invite pity where once disability rights proudly rejected it in the pursuit of equal citizenship.

This is not to disregard the indignities suffered and harm done to people by a botched welfare reform agenda or by disability hate crime. It is not an argument to hide terrible things under the carpet or to not press government to provide the evidence to answer our questions. It is plea simply to be responsible, to focus on solving the problems as they are and to avoid making bad situations far worse.

On defending human rights, let’s get to work

Oh where to start…..

….Corbyn has defied his critics – this writer included – and denied Theresa May the majority she clearly anticipated securing via the snap election.  So far so hurray.  Britain has not lurched to the right.  UKIP voters came back to the Labour rather than moving their votes to the Tories and Labour’s manifesto was able to attract both the young and middle class voters.

But May has clung onto power, for now, via a so called ‘confidence and supply’ agreement with the Democratic Unionist Party.   So where does this leave the Human Rights Act and the UK’s ongoing commitment to the European Convention on Human Rights?

Despite May’s personal desire for the UK to leave the ECHR, the Tory manifesto ruled this out for the duration of the next Parliament (however long or short that might be), said that a Tory government would not repeal or reform the Human Rights Act until after Brexit, but promised to review the domestic human rights framework.   Given her slimmest of majorities, the diversity of views within her own Party on the matter and the fact that the lack of specificity in the manifesto offers free reign to the House of Lords to oppose reform proposals, it would seem highly unlikely reform will be on the agenda.  The DUP has in the past given public support to the Conservative policy of repealing the Human Rights Act, but as with Brexit, it seems likely adherence to the Good Friday Agreement would prove an obstacle to their supporting actual reforms.

Nevertheless, as we saw in the days leading up to the election following the terrorist attack at London Bridge, the lack of real intent to repeal or reform does not stop the posturing that has characterised her and her Party’s position on human rights for the past decade or more.  Indeed, should the arrangement between the Tories and DUP prove unsustainable and a further election takes place soon, it seems highly likely the Tories would offer a combination of ‘one nation’ policies alongside ‘enough is enough’ policies on law, order and security, with reform of human rights law centre stage once more.

The toxic public discourse this long run phoney war has helped nurture has done deep damage to public confidence in our human rights laws and the institutions that exist to protect them, setting the stage for regressive reforms down the line.  It will continue to do so without concerted action by human rights defenders and their allies to change the narrative and build and mobilise new alliances across society and the political spectrum.

As someone has just said, let’s get to work

 

 

 

 

 

 

 

 

 

Advancing disability rights under a Conservative government – bring on the negotiators

It’s actually quite incredible to see positive, rights-focused mental health proposals be the first policy announcement of the Conservative Party at a general election. It shows just how far our culture has changed with respect to mental health, and it’s testimony to campaigns such as Time to Change and the work of people like Paul Farmer that political parties feel both motivated and permitted to advocate such change. It’s not so long ago that mental health policy was primarily about public safety and driven by fear.

Two lessons emerge out of this for me. The first is that some aspects of disability rights chime strongly with a Conservative worldview and are deemed to offer electoral advantage. Here they are proposing to reduce detention, non-consensual treatment and to strengthen protection from discrimination by amending the definition of disability in the Equality Act.   All of these issues were raised in the UNCRPD Committee’s list of issues for the UK. If carried though and carried through well they will mark a step forward for disabled peoples human rights.   The Party also announced a further 10000 specialist mental health nurses by 2020. While the latter involves a commitment of public money (albeit not necessarily ‘new’ money), the overall thrust of the policies is strongly in line with Conservative values of individual liberty and opportunity – of keeping an overreaching State in check and focusing resources on supporting individual agency and enterprise.   A look back to the last time the Conservatives held a majority in Parliament reveals progressive disability policies also rooted in these values: the Direct Payments Act, the Disability Discrimination Act and the introduction of Disability Living Allowance.   It interests me today that, while the cut to the Employment and Support Allowance Work Related Activity Premium passed largely unopposed by Tories in Parliament, many expressed deep opposition to further cuts to the Personal Independence Payment.   Of course, PIP was and is designed to constrain spending on disability benefits, but it seems that Tories intuit it in a different way to out of work benefits and those intuitions can be harnessed to positive effect (while perhaps having to accept that there will be little if any out of work disability benefits by the mid 2020s).   If we are to achieve further progress, understanding these intuitions and finding ways to appeal to them through strategic prioritization and framing will be key. Policy asks focused on and framed as extending freedom, nurturing agency and supporting people to get on in life are much more likely to find currency than those framed simply as being about the amount of social security money in people’s pockets.   While opportunities to secure higher spending may be few and far between, opportunities to secure smarter spending, in line with these values could help for example in resisting the forces of re-institutionalisation at play among local councils and CCGs.

There are also significant signs that May is shifting her party away from the economic liberalism that has dominated politics for the past 30 years – and indeed one can regard the EU referendum vote and support for Brexit as endorsing such a shift. The policy announcement on capping energy prices is a concrete sign of intent. Will this see the deregulatory zeal of those on the right of her party kept at bay? Does this create a space for a renewed discussion about tackling disability discrimination in the labour market, led perhaps by the scrapping of employment tribunal fees? Will May’s government be prepared to wield both carrot and stick when it comes to employers?  How about service providers?  Might we anticipate stronger action on accessible goods, facilities and services?  What about the proposals of Scope’s Extra Costs Commission that focus on market regulation to reduce the disability related costs of living?

Of course the Tories’ agenda on disability will be seriously wanting in many respects, particularly where it comes to spending on financial and practical support.   This has and continues to be the historic fault-line when it comes to securing progress on disability rights. Labour may be the party of the NHS and more generous State support for poor people, but it is also the party of community treatment orders, of putting public sector workers above those relying on services and of often being deeply suspicious of measures to accord people more control over services and support, such as via personal health budgets, all of which undermine disabled people’s right to autonomy.

All human rights are ‘interdependent and interrelated’ in theory, but in practice different political systems and parties always tend to emphasise one class of rights above another: civil and political rights or economic and social rights. As I have said before, this creates a ‘Hobson’s choice’ for disability rights which makes little sense unless one abandons these distinctions altogether. The right to independent living for example relies on meaningful freedom to make choices about where and with whom to live on an equal basis with others.   Legal safeguards and administrative mechanisms such as direct payments may accord a degree of control, but if a person has insufficient resources or options from which to choose the right is rendered fairly meaningless.   The same point has been made about the Conservative proposals on mental health – how can we expect to reduce detention when support to live in the community has been so eviscerated?

Clearly disability rights campaigners have to continue to defend and pursue more generous and more effective investment of public resources and to expose the impact of disinvestment in disabled people’s opportunities and wellbeing. But they also need to get much smarter about the way they do so. The lesson of the announcement on mental health policy is to avoid the trap of wholesale political opposition, as has so often been the case among some of the noisier members of the new school of disability activism since 2010 (see DPAC’s current election campaign against ‘Tory vermin’ for example).   There will always be a role for protesting outside the tent. But there is an equally valid and important role for the ‘negotiators’ who find opportunities to work respectfully with government and political parties of all sides to secure progress, while also being clear about red lines.

With the likelihood of at least a decade of Conservative government in front of us, the negotiators are needed more than ever before.