Conditions for conditionality

Today Parliament debates the government’s plan to cut benefit payments from £5000 to £3500 per year for those it assesses as presently unable to work.  Meanwhile, the Green Paper on Work, Health and Disability ventures a system of discretionary conditionality regarding those assessed as entirely unable to work.  The government, it says, wants in pursuing these reforms to ‘improve lives.’

In thinking about this I was reminded of the approach we took at the Disability Rights Commission with respect to our work to influence the then Labour government’s welfare reform policies (work led by Marilyn Howard in my policy team).   It’s so easy to get lost in the complexity of welfare reform as not to take a step back and ask simply ‘why’?  For the DRC, the answer was clear – welfare reform could only have purpose and validity if it advanced equal citizenship.   Thinking about citizenship allowed us to think beyond only ‘rights’ and to consider the importance of disabled people accruing corresponding responsibilities.   How could disabled people enjoy the rights and practice the responsibilities that equal citizenship implied?   One such responsibility was the responsibility to earn a living through paid work if one was able.  But clearly many disabled people did and do face significant barriers that would need to be overcome – as a matter of rights – before it would be just for the State and wider society to impose equal responsibilities.  Hence various tests needed to be met before the State could seek to leverage unfair or unreasonable expectations, impose conditionality and sanctions attached to benefit entitlement or change the levels of out of work benefit payment recognising long term disadvantage, as was the case with Incapacity Benefit and its successor ESA.

So we came up with a framework, which we called ‘conditions for conditionality.’  It included four principles:

  • Reforms should ensure human rights and equality of opportunity are promoted;
  • more flexible system that supports participation (the fact that a person is unable to assume paid employment should not prevent them engaging in public life);
  • A fair balance between individual and employer responsibility;
  • and that disabled people have access to the support they need in order to take up their responsibilities.

It was our position that these tests needed to be met before government could equalise the obligations or rates of benefit payment of those on Incapacity Benefit and those on Job Seekers Allowance. This submission to the Work and Pensions Committee from 2006 gives you a flavour or how these principles shaped the DRC’s policy response.

It’s painfully obvious that these conditions have not been met and yet have served as no impediment to the government extending – and planning to continue to extend – equality of obligation to disabled people and people with long term health conditions.  I share this only because it offers a way to think and talk about the inherent unfairness – and ineffectiveness –  of the government’s policy and proposals, without resorting to ideas and language around ‘cruelness’ and ‘vulnerability’ which simply add to the damage already being done to disabled people’s status in society.   At the same time, it offers a framework through which disabled people and their allies, including sensible employers, public services and providers of support can go about charting a principled and effective alternative.

 

 

 

 

Following the UN Disability Committee report – it’s time to focus

“This dithering is unacceptable” Mark Harper, Shadow Minister for Disabled People on the then Labour government’s delay in ratifying the UN Disability Rights Convention, January 2009

At the heart of this report lies an outdated view of disability which is patronising and offensive. We strongly refute its findings.”  Damian Green, Secretary of State for Work and Pensions, responding to the criticisms of the UN Committee on the Rights of Persons with Disabilities November 2016

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Some have concluded that the government has complacently dismissed an  inquiry report by the UN Committee on the Rights of Persons with Disabilities into the devastating impact of austerity measures since 2010.   I believe they are wrong and the government is on the run.

The clue is in the government’s considerable efforts to pre-empt and then sink the report. The work, disability and health Green Paper had been in preparation for over 2 years and was still highly speculative and vague when it was finally published on Monday 31 October having been heavily trailed in the press as including plans to reform the Work Capability Assessment.  While the details – insofar as they can be described as details – pointed in a very different direction, the overall tone of messaging around the paper seemed designed to signal the arrival of a more measured and benevolent tone.  Various disability charities were (unwittingly? foolishly?) co-opted for the press effort and the government ruthlessly exploited this.   Damian Green described the Green Paper as  “a turning point in our action to confront the attitudes, prejudices and misunderstandings within the minds of employers and across wider society.” By publishing something so seemingly significant and appearing to signal a change of approach, the government was striving to distance itself from what had gone before while pre-empting and striving to submerge what was about to come.

The UNCRPD inquiry – also in train for two years – was leaked by the government to the Daily Mail on 6th November, apparently forcing the the Office for the High Commissioner on Human Rights’ hand to publish it without any notice or fanfare on 7 November.  Anyone with even a basic knowledge of the media would have known that the prospects for coverage would be very slim indeed as the outcome of the US Presidential Election loomed large.   The government’s official response to the CRPD report was to dismiss it, with Damian Green arguing ‘The UN measures success as the amount of money poured into the system, rather than the work and health outcomes for disabled people. Our focus is on helping disabled people find and stay in work, whilst taking care of those who can’t.’ A spokesperson was quoted in the Daily Mail as saying ‘Their evidence period runs up until the end of 2015, so it is already out of date.’ (the article doesn’t mention that the government was sent the report in early 2016 and has only just got ’round to responding to it).

Why try so hard to bury bad news if you are so confident that the news is inaccurate, or its implications so light?

Perhaps it’s because this is the beginning not the end of a process, one that will refuse to go away for some time and which will become tougher as time goes by.  While officially a confidential inquiry, we were always likely to find out by stealth what the Committee had concluded.  Published or not, when it comes to conducting its public examination of the UK’s implementation of the Convention in 2017 the Committee will rely on its findings and subject the government to even deeper scrutiny.   But published it is, and moreover so is the government’s very detailed and lengthy response.  As such, one might argue that DWP’s media management will ultimately backfire.

Armed as we are with the government’s response to the findings and conclusions put before them we are now much better equipped both to scrutinise the Green Paper and to support the UNCRPD Committee in its public examination in 2017.   As President Obama would say, now is the time to focus.   Complaining to the government, or to the Secretary General of the United Nations, about the tone of the government’s response is wasted energy.  Did anyone really expect them to say ‘its a fair cop’ and to embrace the criticism?  Instead our focus has to be on unpicking the government’s arguments:

  • Yes, money isn’t everything and there’s more to life than social security, so let’s shine the light on how well government is supporting people to escape poverty, to exercise choice and control and to participate fully in practice – what is happening to people’s everyday opportunities?  Just how far will the proposals in the Green Paper, or action to implement the Care Act go to address these issues?
  • But with respect to the money, let’s not let the government get away with its glib claim to be spending more today than in 2009-10. Let’s ask how much it would have been spending were it not for cuts, count the human cost of those cuts, and also scrutinise just how well the considerable amount of public money is being spent in support of human rights.

In forcing publication of the UN Committee’s findings and its own response and publishing the Green Paper the government has provided a major opportunity to put it to the test.  Let’s not waste it.

All eyes on the ‘pipeline of innovation’

There was moment during my speed-read of the Work, Health and Disability Green Paper that I felt I had entered either the world of ‘W1A’, the BBC’s almost documentary about itself or perhaps that of Nicola Murray-era The Thick of It and her brainchild ‘Fourth Sector Pathfinders’.  At paragraph 69 the Green Paper says ‘We are committed to building a pipeline of innovation to rapidly improve support for individuals.’

Actually, that commitment is probably the best bit about the Green Paper.  I’ve long advocated a shift away from top down commissioning to a model of promoting, speculating for and investing in innovative practice to support disabled people into work.  I welcome the shift towards localism and personalisation and the recognition of the value of peer support.  But the ‘innovation pipeline’ is also aimless, unattached to any measure of success or progress save the grand ambition to halve the disability employment gap. It’s not made clear what sort of resources could ever be committed to ‘rapidly scale up’ initiatives that prove effective.   It reminded me of the Department for Health’s ambitions to reduce the number of people committed to and stuck in Assessment and Treatment Units – masking the impotence of government to really make a difference.

There do not seem to be any plans to tackle prejudice or stereotypes, beyond the Disability Confident programme.  At this morning’s launch at Scope, Minister for Disabled People Penny Mourdant referred to ‘finding imaginative ways to ensure compliance with the Equality Act other then suing employers.’  I’d welcome that – measures such as Stonewall’s equality index and transparency measures concerning gender equality on company boards have proved powerful.  But the introduction of Employment Tribunal Fees has seen a 54% drop in disability discrimination claims and the EHRC does not systematically enforce the Act.  Enforcement and redress has to be part of the mix, albeit used creatively and proportionately.  Rights are not rights without redress and weak enforcement merely says to employers that they can get away with it.

While the paper talks about personalisation and integration, there is not a single mention of personal budgets or personal health budgets, which is strange to say the least.  If the government really want to reach those facing the most complex barriers then the wider public service support infrastructure (including the role of Personal Independence Payment) has to factor into this strategy.  It’s not clear that it does.

When asked how the government would manage to get 1.2 million disabled people into work by 2020 when the OBR reports that the government aims to secure jobs for 900,000 more people overall, the Minister pretty much confirmed that ‘halving the Disability Employment Gap’ was little more than a distant aspiration.  It is of course a more attractive and apparently noble way to frame policy than ‘cutting benefits for disabled people’ and my sense is that it is little more than a new frame, as cutting benefits expenditure – and the costs to business and the NHS of ‘sickness’ –  appears to remain the primary driver.

Already we have the £30 per week cut in ESA from 2017 to those assessed as belonging to the Work Related Activity Group – that is people the government accepts are presently unable to work, but capable of some work related activity who will receive the JSA rate, presently around £73 per week.  Given the real ‘innovation’ in this paper is the link drawn between promoting health and employment, it’s worth reminding ourselves of the much more definite link between poverty and ill health.  With the WRAG cut the government is undermining its own professed aims and objectives.

Paras 130-137 of the Green Paper are opaque to say the least, but under the rubric of ‘personalisation’ appear to envisage some people who might presently be assessed as falling into the Support Group being subject to some degree of conditionality:

‘establishing entitlement to financial support could still be decided by an assessment, but that assessment could be used solely to determine whether an individual should get additional financial support. Decisions on whether someone should engage with Jobcentre Plus or specialist programmes could then be made through a separate process. This would avoid the current situation where someone’s entitlement to additional financial support can also result in them being given no employment support.’

That appears to separate the question of how much money a person should receive – which would I assume be an assessment based on common criteria –  from whether they should be under any obligations to engage with job centre plus, which would be on a case by case basis (‘personalised’) and at the discretion of a ‘Work Coach.’  Conditionality and sanctions are not mentioned by name, but the section refers to ‘requirements’ and to ‘safeguards’, neither of which indicate voluntary participation.

There’s an infographic to help explain the proposed process but it reminded me of this optical illusion and made my head want to explode:

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Ben Baumberg-Geiger very adeptly nailed the danger of this shift when he said:

‘We are therefore moving away from the dangers of an iron cage of bureaucracy – but this introduces a new danger, the danger of discretion.’

As I said on Sunday, the benefits-reform-cart has long zoomed way ahead of the increasing-employment-opportunity-horse.  Again here, the timeline for implementation of the Green Paper’s proposals puts reforms to the benefits system at the front of the queue.  While claiming that there was nothing in the Green Paper involving more cuts to the benefits budget, Mourdant also said this morning that the government hoped that they might be able to legislate to reform the WCA ‘during this Parliament.’  As others more knowledgeable about the WCA than me have pointed out – the government doesn’t really need legislation to reform the WCA.  What seems to be on the cards then is legislation reform the current categories and the rules attached to them that make up ESA, so opening up the scope for deeper cuts in the next Parliament.

The government’s apparent good intentions to ‘halve the disability employment gap’ cannot be allowed to obscure the ineffectiveness of its proposals to do so, or to mask any duplicity regarding the true purpose of its actions.  I promise to contribute towards this debate with an open mind, but on first reading I’m afraid an even worse deal for disabled people seems to be coming down the pipeline.

Let equality be our measure of the employment, disability & health Green Paper

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Noelia Garella, 31, Argentina’s first qualified nursery teacher with Down Syndrome Picture: Getty

 

The much awaited Employment, Disability and Health Green Paper will finally be published on Monday. One might welcome the fact that government has chosen to consult on a Green Paper rather than push ahead with a White Paper had it not already decided that from 2017 it will cut by £30 a week the benefits of those who in future are assessed as not presently capable of work.  Where welfare to work is concerned, the benefits reform cart has long since run far ahead of the employment support horse.   The long-term promise of support into work is continually used to justify immediate term increases in coercion and cuts.  The massive failure of the government’s work programmes for disabled people are attributed to the recalcitrance of those who have to endure them.  This in turn is used to justify more coercion and cuts, presented as ‘incentives to work’ and on it goes. As if to prove this point, news headlines clearly based on DWP pre-briefing of the Green Paper this evening are majoring on a planned ‘overhaul of the Work Capability Assessment’.  The benefits cart rushing off into the distance once again?

Nothing will change until this formula is turned on its head. The only way to do that is by rejecting the dead hand of ‘welfare to work’ as the framing of policy and discourse.  The opportunity to do so has come in the form of the government commitment to halve the disability employment gap – the gap being of course that in equality between disabled and non- disabled people.

If we take equality of opportunity as our focus and measure we can begin again to cast light on the genuine barriers to disabled people getting in, staying in and getting on at work – the things that should form the focus of an employment green paper worth the megabytes it will take up on our laptops.

So what should be in a employment strategy focused on equality of opportunity?  I think it should include the following ingredients:

Sweeteners and sanctions for employers

Employers need to recognise clearly the benefits of employing, developing and retaining disabled talent. But they also must face a clear cost when prejudice, discrimination and destructive convenience gets in the way.  Theresa May recently celebrated the good things that government can do. Well why not pick up where the last Labour government left off and create a new version of the future jobs fund, targeted at the employment of disabled people and people with long term health conditions?    At the same time, government should emulate legislation in the Netherlands, creating clear financial incentives for employers to support people who have developed an impairment or health condition to come back to work, such as extending the period of statutory sick pay and should promote and strengthen rights to flexible working for disabled people. It should also abandon employment tribunal fees, properly support the EHRC to promote and enforce the Equality Act and extend its audit of public services regarding race discrimination to other grounds, including disabled people.

Skills and qualifications

The one group to have seen little change in their employment prospects over the past 20 years is people with no or low formal qualifications. A large percentage of that group have a disability or health condition. Yet the gap in educational attainment between children with and without Special Educational Needs has actually grown since 2009. Skills rarely features in any discussion about supporting more disabled people into work and disability rarely features in discussions about improving the skills of our workforce.   In 2007, the Social Market Foundation estimated that bringing disabled people’s skills levels up to the national average would generate £13 billion for the economy.   Improving skills offers a clear win win and should be at the heart of an effective strategy.  This will also demand that skills and training programmes are genuinely accessible and inclusive.

Workplace adjustments

Access to work should be given a major financial boost and radically overhauled (as part of a wider reform set out below).   A personalised system of employment support will pre-assess people for potential workplace adjustments and support, providing people with a ‘in principle’ commitment to provide them which can be shared with prospective employers and that commitment must be honoured in the fastest time possible once a job offer has been made. Once in employment, access to work should follow the individual, with people able easily to transfer items of equipment or the costs of support workers from one job to the next, as appropriate.   Administrative costs must be kept to a minimum to ensure that the budget is spent efficiently.   Employers and individuals should be able to access high quality information and advice, including a ‘Pinterest’ for workplace adjustments where people can go for inspiration and guidance and access to expert advice via a specialist online or telephone helpline.

 Public service reform and investment

James Purnell was on the right path with the Right to Control in the Welfare Reform Act 2009, integrating public services around the individual through personal budgets that can include employment support, support with long term health needs, social care and costs related to education and skills.   The government has continued along some of these paths, through personal health budgets, personal budgets in the Care Act and talk of personal budgets in relation to Access to Work. But it is still a fragmented system, and social care in particular is unfit for purpose as regards working age disabled people who require its support to hold down a job. My suggestion? Be brave and truly radical: a single integrated system of support for disabled people from age 16 to retirement. Let’s call it the ‘Access to Living Scheme.’ Building on the blueprint of the National Disability Insurance Scheme in Australia, it would represent a major investment in and change of approach to disabled people by a Conservative government, echoing and building on its past radicalism in areas like Disability Living Allowance and Direct Payments, while ensuring scarce public resources are spent in the most efficient and effective ways.

We live in hope…

Reflections on ‘Who are we? Hate, Hostility and Human Rights in a post Brexit world’ by Martha Spurrier

Just back from a lecture by the new(ish) Director of Liberty, Martha Spurrier at the LSE, chaired by Professor Connor Gearty titled ‘Who are we? Hate, Hostility and Human Rights in a post Brexit world.’  You can listen to it here and a video will be available soon.

First of all, to say what a wonderful public speaker Martha is – clear, authoritative but infused with humanity and humility. I don’t know how long Martha spoke for but it flew by. And to answer so masterfully questions which spanned deeply complex ethical, philosophical and legal matters was deeply impressive.

Martha began by reference to her background in history, rather than law, quoting Benedict Anderson’s concept of nations as ‘imagined communities’ founded on ‘horizontal comradeship’, venturing that human rights could offer the ethics, values or principles on which such comradeship could be rebuilt at a time of such apparent social division. In doing so she echoed her predecessor Shami (now Baroness) Chakrabarti, under whose leadership Liberty launched its ‘common values’ campaign and long time Liberty Associate and LSE luminary Professor Francesa Klug author of ‘values for a godless age’.

In building on this argument, Martha went on to talk of her time at the Bar, speaking movingly about the family of a woman who had committed suicide following detention in a psychiatric institution. Martha noted how their intuitive sense of injustice – of the idea that the organization responsible should lead an investigation of itself and that it should have taken all steps to eliminate risk while their daughter was in their care – meant that they already understood human rights. This put me in mind of Mary Robinson’s observation that ‘human rights are inscribed in the hearts of people’.

On this basis, she argued, human rights were not ‘toxic’ or unpopular as the Conservative Party argued.

This is where, for me, her argument came unstuck.

First, the polling Martha referred to was not commissioned by the Conservative Party but by the Equality and Diversity Forum to inform the development of its ‘Equally Ours’ initiative and carried out by YouGov. It found that 80% of the British public possessed either negative, conflicted or ambivalent attitudes to human rights.   Far from offering a platform on which to build a new ‘horizontal comradeship’ it appears human rights are today a focus of division. Only once these negative attitudes are overcome might human rights offer the framework of values for any future ‘imagined community.’   Doing so needs to go hand in hand with the other major challenge Martha identified – shifting from a sense of national identity founded on the existential threat of conflict, to one where we are differentiated by shared values of, inclusion, openness and tolerance.   As Professor Gearty argued at the close of the event this is ultimately a battle between and for values (he actually used the phrase ‘culture war’ which I think is deeply unhelpful, risking falling into the trap of being seen as metropolitan liberals going to war with members of some of the most deprived communities in Britain over their lack of support for human rights).

Second, human rights are being used to challenge and resolve injustices faced by everyday people, all the time. But these stories are rarely told, told well or heard as having any relationship with human rights.   As a result, while notions of justice may be inscribed in people’s hearts, people do not intuitively connect this to human rights.

Martha’s answer to this was for human rights champions to take every opportunity to set out the facts when confronted with myths and misunderstanding.   I’ve heard other human rights advocates suggest the same. But most evidence about how attitudes form and what it takes to challenge them points to the ineffectiveness of rational argument as a primary strategy.   Indeed, YouGov having carried out the polling work for EDF concluded that:

‘At present, the debate is both too rancorous and too alien for people to engage with the subject matter in the considered and rational manner required to emphasise the benefits human rights can have for society.’

The only answer in my view, if we are serious about ensuring that human rights are regarded as in the common good, is, through empirical research to find a new narrative with which to situate human rights as part of our past, present and future national story. It must navigate what the Frameworks Institute refers to as ‘the swamp’ of public opinion and discourse, understanding the most fruitful values to strive to command and the most effective metaphors and simplifying models to employ.   This does not, incidentally, mean pivoting away from talking about groups or issues that parts of the public or media do not like, but rather finding better ways to talk about why their human rights are of equal importance.

It needs to be as potent as ‘taking back control’ was in commanding support to vote to leave the EU. Not ‘protecting and promoting the right to life of large sub aquatic mammals’, but ‘Save the Whale.’*   And it should not, in my view, be frightened of invoking patriotism, just as the Labour government was not afraid to when it coined the phrase ‘Bringing Rights Home’ to frame the ECHR as a British innovation and the HRA merely our ‘taking back control’ of it. Tradition, patriotism and strong notions of national identity need not be enemies of openness and tolerance, as Danny Boyle’s 2012 Olympic opening ceremony so ably demonstrated.   When YouGov tested various messages about human rights they found that by simply referring to the ‘British Human Rights Act’ support rose. Of course, this may not work well in parts of the UK, but those are on the whole not the parts of the UK where problematic public attitudes, political or media hostility to human rights prevail.  This is about finding messages to suit and command the support of target audiences, not wholesale rebranding.

Strategic communications is going to have to enjoy equal status with strategic litigation if we wish to see an imagined future come to pass where human rights bind us together rather than push us apart.

* Thanks to Lucia Nader for this last example.

These ideas are explored in more depth in my recent post Building public support for human rights – where next?

Building public support for human rights – where next?

“They (human rights) carry no weight unless the people know them, unless the people understand them, unless the people demand they be lived.” Eleanor Roosevelt 1948

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For the past several years I’ve been engaged in one way or another in thinking how to stop the rot of public discourse and public opinion surrounding human rights, first at the Equality and Human Rights Commission than latterly as Director of the Thomas Paine Initiative.   Theresa May’s assault on ‘left wing activist human rights lawyers’ during her Party Conference speech this week shows we’ve rather a lot of work left to do.

The work I’ve been involved with has helped to establish initiatives such as Equally Ours and Rights Info, underpinned by new research into how the public thinks about human rights and how we can communicate about human rights more effectively.  A key insight from the research is that to enjoy public support, stories about human rights need to be relatable, foster an intuitive sense of injustice or unfairness and be told by spokespeople that enjoy high levels of trust.   Or as Eleanor Roosevelt advised almost 60 years ago, human rights must make sense in the ‘small places close to home’ if we are to expect them to have meaning and enjoy support in the wider world.

The challenge of course is that much of what we read about human rights fails these tests on a massive scale.  In the domestic context human rights often appears to be securing intuitively unjust and unfair outcomes for people many of us find it difficult to relate to or feel empathy with and we have little trust in the spokespeople for such causes.  We may know the role human rights played in securing justice for the families of those killed at Hillsborough, or those of patients who died in Mid Staffordshire hospitals, or how it has helped bring about peace in Northern Ireland for example, but the public does not for the most part.   It is in my view this gap in perception (and experience) that creates the impression that human rights are not universal – that they benefit ‘other’ people who do not ‘play by the rules’.    In his book the Politics of Hope (2000) the then Chief Rabbi Jonathon Sacks argued:

‘The universality of moral concern is not something we learn by being universal but by being particular. Because we know what it is to be a parent, loving our children, not children in general, we understand what it is for someone else, somewhere else, to be a parent, loving his or her children, not ours. There is no road to human solidarity that does not begin with moral particularity – by coming to know what it means to be a child, a parent, a neighbour, a friend. We learn to love humanity by loving specific human beings. There is no short cut.’

Unless we take heed of this, I fear we stand little hope of earning at least tolerance of the fact that human rights also protect ‘unpopular’ groups and individuals as well.   The cost of failing to address this will be human rights that in future are no longer universal: the UK outside the European human rights system; a hierarchy of protection tied to citizenship status; a government determining the merit of human rights cases brought against it.   If you think this couldn’t happen, you’ve been asleep since June 23.

But to rise to this challenge we need to overcome a number of hurdles, and I write this in the search for ideas and debate, not because I have the answers.

First, some human rights defenders believe that the strategic communications necessary to attend to public discourse and opinion involves the abandonment of the principle of universality, as it encourages communicators to pivot away from tricky issues such as defending the rights of prisoners or alleged terrorists onto more productive terrain.   Moreover, such approaches rely to a certain degree on appealing to ‘self interest’ rather than encouraging at the first instance respect for the equal dignity and worth of everyone.  By doing so, it can be argued, such communications strategies undermine human rights principles, risking deepening notions of ‘deserving’ and ‘undeserving’ people.   This criticism needs to be taken seriously.

Second, among those who we would need to become new human rights spokespeople to shift public discourse and opinion, there is resistance because talking about human rights is not regarded as offering any added value on issues such as the situation of people with mental health problems, older or disabled people for example.  There is reasonable concern that it may in fact unnecessarily undermine public support given how toxic a brand human rights has become.  And it is not only that human rights are not spoken about in these areas, they play little part in practice either.  This fact alone should be of deep concern to human rights defenders, irrespective of its significance for securing opposition to regressive legal reform.

It might be said that these challenges are merely a feature of where human rights fits in a modern, developed, largely democratic and free country.  That is to say, the reason human rights are so strongly associated with so called ‘unpopular groups’ is (a) because it is those groups – asylum seekers, migrants, prisoners, gypsy travellers, alleged terrorists – who fall back on the law for protection most and (b) because other groups and issues can appeal to intuitive notions of fairness and injustice and hence feel less need to assert human rights?

But I’m unconvinced by this argument.  It relies on false presumptions about and an unhealthy characterisation of the situation faced by certain groups in society.  Are we really saying that 3000 plus people with learning disabilities locked away in Assessment and Treatment Units are able to rely on the public’s intuitive sense of injustice to secure their freedom?  Is the public’s burning sense of unfairness acting as a bulwark against cuts to care packages that leave older and disabled people utterly isolated and without the support to secure their basic dignity?   If the public was so committed to ridding society of the scourge of violence against women, why would so many refuges have closed with so little opposition over the past 6 years?  Was it public opinion that secured the second inquest for the families of those killed watching a football match at Hillsborough?

The task then is not one that can so easily rely on mobilising intuitive notions of fairness and injustice or on appealing to self interest through communications because (a) it is not enough  (b) if it was we wouldn’t need human rights  (as the Director of Human Rights Watch, Ken Roth, has said; ‘If most people always wanted to do the right thing, democracies would not need to be concerned about human rights’) and (c) talking must be matched by doing.

But it must be a strategy that broadens out people’s sense of what human rights are about and who they matter to.  To these ends, I have (perhaps belatedly) come to a view that the task cannot be reduced to one only of communications.   Rather it is one of ‘democratising’ human rights.     That is, a strategy that sees spreading the practice of human rights as going hand in hand with changing the public narrative sufficient that human rights are recognised as having universal benefit and through doing so come to enjoy at least grudging respect, if not outright support when they protect people we don’t like very much.

On practice, I was pleased to see my ideas taken forward by the Baring Foundation and Legal Education Foundation in their new programme to support better use of the law and human rights by the voluntary sector. It is a modest and hugely oversubscribed programme, which I hope will inspire other donors.  It seeks to build bridges between the legal and non legal voluntary sectors to pool expertise and networks and bring human rights to areas it has rarely gone.  It too is working against the grain of cuts to the legal advice sector, a closing space for civil society to engage in advocacy, the toxic climate for human rights and a lack of confidence in using the law and human rights.   There is much work still be done, and our national human rights commission’s in England and Wales, Scotland and Northern Ireland also have a critical role to play.

On communications, we do have to continue to address the perception gap, but this has to involve more than just finding and communicating ‘relatable’ stories that already enjoy support for the reasons that I have outlined.  If we are to really change things we need to learn how and when framing issues as violations of or risks to human rights deepens or secures the public’s sense of unjustice and unfairness, rather than focusing  only on those areas that enjoy it already.  This is the only way to convince sceptics to become spokespeople and through doing so to tell a much more inclusive story of the importance of human rights in the UK today.   This will involve building on work already done by Equally Ours and others to engage and support civil society to talk about human rights in ways that matter to them.   But it also I think involves a bigger task of finding a new narrative for human rights in the round – one which masterfully secures recognition and support for the importance of human rights to the particular as a route for building support for the principle of universal human rights today and into the future.

This will require money – quite a lot of money – which presently is not being invested in the UK.

Answers on the back of postcard please…..

No Go Britain – why messages, messengers and tone matter

Quick post about last night’s Channel 4 News No Go Britain debate.

On the one hand it was positive to see a disabled MP debating disability issues with a disabled audience for a sizeable chunk of a primetime news programme.  The debate didn’t shirk from the issues of greatest concern: welfare reform, the implementation gap on anti discrimination and accessibility and so on.

My Twitter feed lit up with people excitedly announcing that disabled people were giving one to the government:

‘watch disabled people NOW on Channel 4 News make a joke of the government’s representatives who talk crap…..Great to see the truth told by disabled people to the powers that be who should be shamed’

Robert Halfon MP trotted out the usual government lines about ‘spending £50 billion a year on disabled people’ and ‘having to make difficult decisions’, while ADASS Chair David Pearson spoke of how the aims of the Care Act were being undermined by local government spending cuts.   Their replies were undoubtedly weak.  They did not look comfortable.

The audience became more and more frustrated with their replies, the interventions angrier and angrier:

‘Your policy is designed to remove benefits from disabled people, designed to kill, to make people homeless. Your government has blood on its hands.’

Problem after problem was highlighted (with few if anyone venturing any solutions).  Channel 4 News will probably regard this as having made good TV – there is a reason Jeremy Kyle is such a popular programme.

But I’m afraid for disabled people this was very likely not a successful broadcast.

As the Frameworks Institute has established through extensive research, tone matters hugely in terms of how audiences respond:

‘A reasonable tone activates a community response and a can do attitude. When people are presented with a reasonable discussion of the problem, its causes and potential solutions, they are much better at processing and understanding new information.  Your audience begins to think about how to solve the problems rather than how to identify the agendas of the messengers.

An argumentative tone is one that is opinionated, highly charged and ideological.  When social problems are communicated in this tone, the audience tends to respond with skepticism regarding the messengers motives, hear that it is about politics and factionalising and are less likely to be open to new information and solutions-based thinking’

Many (but not all) of the participants adopted the argumentative tone.  The tweets surrounding the programme, such as those above, encapsulate that tone.  One particularly notable exception was the mother campaigning for Changing Places who was reasonable, explained the problem clearly and advanced an easy to grasp solution that many parents of non-disabled children would empathise with.

And therein lies the problem.  The opportunity of such a programme is not for disabled people in a studio to shout at a disabled MP, or to excite their existing supporters watching at home.  It is to reach the wider viewing public – concerned about their own lives, such as the income and council tax they pay, whether the council is going to fix potholes, their and their children’s future job opportunities and the state of the economy – and to enlist their support, not to alienate them.

Halfon and Pearson may have lacked credibility with those already angry about government policy and inaction around disability rights.  But what both did was frame their responses in terms of  trying to solve the difficult problem of providing services while reining in spending –  a problem which much of the country sympathises with.  Moreover, both enjoyed the underserved benefit of sounding credible and that’s principally because they both came across as calm and reasonable in the face of anger and hostility.

Messages, messengers and tone matter whether we like it or not.

 

 

 

 

 

 

Leaving the ECHR will probably seem like a walk in the park after Brexit

David Cameron first threatened to scrap the Human Rights Act and replace it with a ‘British Bill of Rights’ in 2007.  Almost a decade later the phoney war continues, with Liz Truss today correcting recent media misreports that the new Prime Minister Theresa May had ditched the plan.  It had been reported that proposals drafted by Truss’s predecessor Michael Gove didn’t go far enough for May’s liking (they did not entertain the possibility of the UK withdrawing from the ECHR, which she called for during the EU Referendum).  But May herself had also suggested that going far enough would involve too many political obstacles (which provided her reasoning during her leadership campaign for saying she would not pursue leaving the ECHR).

So where does this leave things?

I expect May and her strategists are keen to leave open the possibility of human rights reform because it continues to serve as a useful political pawn in negotiations with right wing Conservative backbenchers and in positioning with the media over Brexit.  While human rights advocates are always keen to stress that the ECHR and EU are entirely separate, politically they are joined at the hip.  If May – as a remainer – wants to pursue a ‘soft Brexit’ with freedom of movement the ongoing price of staying in the single market, it seems reasonable to expect human rights reform to come back centre stage as the ‘taking control of our borders’ initiative.  In her apparent positioning for the leadership prior to the Referendum, May already argued that:

“The ECHR binds the hands of parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of governments like Russia’s when it comes to human rights….So regardless of the EU referendum, my view is this: if we want to reform human rights laws in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its court.”

While proposals for human rights reform this side of Brexit may not advocate the immediate withdrawal from the ECHR, I expect careful wording will leave the possibility open as a ‘sunset clause’ and that promises may be made in private.   Post 2020, with May likely enjoying an increased Parliamentary majority, wanting to make her own imprint having spent four years implementing a policy she opposed, with Brexit under her belt but with a need to foster Party unity, facing a desperately weak and fragmented opposition, with Scotland marching towards independence, and with leaving the ECHR likely to score significant public and media support (if we held a referendum on the question next month, it seems fairly obvious what the conclusion would be), it isn’t unthinkable that May’s desire to withdraw from the Convention could materialise.  By then, as a political project it will probably seem like a walk in the park.

 

 

 

 

 

 

 

Life’s moved on Mike Oliver….

Last year disability rights campaigners in the USA marked the 25th Anniversary of the Americans with Disabilities Act with nationwide celebrations. They did so not to sweep the very many inequalities still facing disabled Americans under the carpet. Rather, it was a chance to remind disabled people and the wider community of what the passing of the ADA symbolised and to refocus attention and energy on the campaign for full civil rights once again.

Contrast that with the 20th anniversary of the Disability Discrimination Act in the UK. Mike Oliver’s opinion piece for Disability and Society is essentially the elongated whine he gave at Scope’s event last year to mark 20 years of the Disability Discrimination Act.   In  Oliver’s view the DDA was not the legislation disabled people campaigned for, disability charities and ‘careerist individuals’ wanted something else and won and everything since has been a disaster.   Oh, and it’s only going to get worse.

In his article, Oliver sums up the situation as follows:

‘This (whether to support the government’s Disability Discrimination Bill or continue to pursue preferred alternatives) effectively split the disability lobby. Those organisations like the BCODP and others controlled by disabled people wanted nothing to do with it and argued that the campaign for comprehensive, fully enforceable civil rights legislation should go on. The disability charities, on the other hand, argued that this was the best on offer for at least a generation and that they should be fully involved in order to make the best of it. Some disability activists also took the latter course and became members of the Disability Task Force, which soon became the Disability Rights Commission whose responsibility was to monitor and evaluate the Act.

The Disability Rights Commission also had an enforcement function and while some cases did come to court, on the whole it saw its job as trying to educate and persuade people and institutions not to discriminate. The New Labour Government when it came to power shortly afterwards showed no more inclination to enforce the law than the previous government had, and eventually the Disability Discrimination Act became subsumed under broader equalities legislation and the Disability Rights Commission was integrated into the Equalities and Human Rights Commission.’

Oliver concludes his piece saying:

‘My version of this history therefore suggests that, far from being the landmark legislation which many people now claim, it was little more than a betrayal of disabled peoples’ struggle to be fully included in society and any reading of disability history since the millennium supports this view and it is clear that discrimination against disabled people is still alive and well in twenty-first-century Britain.’

In researching this post I came across an Institute for Public Policy (IPPR) report ‘Equal Rights for Disabled People – The case for a new law’ by Ian Bynoe, Mike Oliver and Colin Barnes written in the early 1990s. The IPPR thank ‘the Spastics Society, the Royal National Institute for the Blind and MIND, whose generosity has enabled us to publish this book.’ Barnes and Oliver begin by stating that ‘Disabled people have identified institutional discrimination as the main problem, and anti-discrimination legislation as the most promising way of tackling it’ and make a powerful case for anti discrimination law while Ian Bynoe (then Mind’s legal director) explores what it might look like.

I have separately been told how the Spastics Society (now Scope) funded transport to enable activists to attend rallies, including direct action, while campaigning for the Bill. The Rights Now campaign spanned organisations of and for in a manner that committed the considerable resources of the disability charities to the political campaigning of people like Oliver and Barnes. While there was then and remains a vital distinction between as Oliver and Barnes put it ‘the philanthropic and liberationist elements of the disability lobby’ all had supported the private members Bills sponsored by Harry Barnes and Roger Berry, not least because they had been involved in writing them.

But there was clearly a difference of view about tactics when it came to whether or not to support the government’s Disability Discrimination Bill. While some believed it best to reject the Bill out of hand, others came to the conclusion that it offered a stepping-stone.

It is of course true that the Disability Discrimination Act 1995 fell way short of what disability campaigners had been striving for. Huge areas of life like education and transport were excluded. The employment provisions excluded employers of 20 or fewer staff. Some discrimination could be justified. The Act included what many regarded as a wholly inappropriate definition of disability. There was no enforcement body of equivalence to the Commission for Racial Equality and Equal Opportunities Commission.   Why celebrate that? Well because it did mark the beginning, not the end.

Within a year of the DDA coming into force, New Labour won its landslide victory of 1997 and established the Disability Rights Taskforce to advise government on the legislative reform necessary to accord ‘full civil rights’ to disabled people. Between 1997 and 2005 the DDA was extended to provide protection to people with progressive conditions and past conditions, to cover auxiliary aids and services such as BSL and accessible information in goods and services, to cover schools, further and higher education, to all employers, to address the physical features of goods and services, to cover housing, transport and public functions.   The Disability Discrimination Act 2005 included a positive duty on public bodies to promote disability equality.   The Disability Rights Commission opened its doors in 2000.

By the end of this period almost all the features of the Barnes/Berry Bill had been enacted or improved on. Little of this progress would have happened without the Taskforce or the DRC, which is why Oliver’s criticism that ‘Some disability activists also took the latter course and became members of the Disability Task Force, which soon became the Disability Rights Commission whose responsibility was to monitor and evaluate the Act’ is so wrong-headed. Perhaps the most influential figure of all throughout this period was the late Caroline Gooding, both a prominent figure in disabled people’s struggle for civil rights and a senior Director at the DRC. Is Oliver really suggesting that Caroline ‘betrayed’ disabled people by taking this course?

The Equality and Human Rights Commission absorbed the responsibilities of the DRC in 2007, with additional powers to promote human rights and good relations. The Equality Act 2010 embodied all the features of the Disability Discrimination Act, while adding some additional provisions such as protection from discrimination for those associated with a disabled person or perceived to be disabled, prohibiting the use of pre employment health questionnaires and extending the duty to provide auxiliary aids and services to schools.

The period saw other significant developments in disability rights. Independent living took a leap forward with the Direct Payments Act 1996. The Human Rights Act 1998 incorporated the European Convention on Human Rights into UK law (and the UK will not leave the Convention by leaving the European Union as Oliver incorrectly asserts on his article). Disability hate crime was recognized in s146 of the Criminal Justice Act 2003. There were generally positive developments in relation to legal capacity in the Mental Capacity Act 2005.   The Prime Ministers Strategy Unit report on the Life Chances of Disabled People (2005) followed by the creation of the Office for Disability Issues, the Equality 2025 strategy and Independent Living Strategy all took their lead from this focus on disability equality.  The European Union adopted the Equal Treatment Directive prohibiting discrimination in the field of employment.  In 2009 the UK confidently ratified the United Nations Convention on the Rights of Persons with Disabilities with cross Party support – a human rights instrument far broader in scope than our domestic equality law and which codifies the right to independent living.

Are we as a result of all these developments where we ultimately want to be? No, of course not. Is discrimination against disabled people still alive and well in twenty-first-century Britain? Yes it is. Do great inequalities remain? Depressingly so. Is this because there was a ‘split’ between activists in 1994/5? No, because it did not prevent the ambition of Mike Oliver, Colin Barnes and others for comprehensive legislation to outlaw discrimination against disabled people from ultimately being realized and in a relatively short space of time.

So why are we not where people, including Oliver and Barnes, imagined we would be as a consequence of having such law in place?

I think three issues stand out: a growing implementation gap, a failure to develop broader strategies for social change, and that disability rights has not radically reshaped attitudes towards of public policy regarding the financial and practical support some require to participate fully.

On the growing implementation gap, the recent House of Lords report on the impact of the Equality Act on disabled people deals with this well. Since the DRC closed, effort put into promotion and enforcement of disability discrimination law and disability rights more widely has declined considerably. While the recent profile accorded to disability rights by the new Chair of the EHRC is welcome, he presides over an organization spanning all grounds of equality plus human rights that in 2016 enjoys fewer resources than the DRC had in its last full year of operation 2005-6.   The introduction of employment tribunal fees saw a 45% drop in disability discrimination cases in one year. There are no alternative dispute mechanisms regarding complaints of discrimination by providers of goods and services.  As the saying goes ‘rights without remedy are no rights at all.  These issues should be priority advocacy objectives for disability campaigners.

The government’s overall response to the House of Lords report is to air its preference for gentle persuasion over enforcement, despite the evidence of its effectiveness being next to non-existent.   Mike is of course correct to identify the lack of enforcement as a problem, and so the promise by the chair of the EHRC for a ‘more muscular’ approach has to be welcomed. We should be striving for ‘more muscular’ approaches in other arenas too, such as the enforcement of building regulations and planning law, transport accessibility and the prosecution of disability hate crime.

But enforcement alone is never enough and in some instances is counter-productive. The law provides a floor. Sometimes we have to use it to ensure that basic minimum standards of behavior and action are upheld. Doing so can send powerful signals to others. Standards are set. But the law is only one lever for social change and relying on it alone will not achieve the deep institutional and social change that eludes us.

For example, the disability employment gap remains a stubborn 30% in the UK (in the USA it is 46.5%). Is this simply a matter of more enforcement of the Equality Act? Partly perhaps but disabled people’s labour market disadvantage stems from a complex web of interacting factors.   We can only make real progress by taking on the factors that are genuinely shaping opportunity. This does not mean abandoning the notion of ‘barrier removal’ – it just requires clarity about what these barriers actually are and identifying the most effective ways to remove them.   It must also not be assumed that legal enforcement of itself affects institutional change.   As the equality champion Bob Hepple pointed out, the law is just one sub-system in society, it does not sit ‘above’ all else, and in order for it to affect wider social change it has to interact with those other sub-systems such as culture, attitudes, practices and so on. Institutions such as the DRC/EHRC have a critical role to play in providing that translation and ensuring that legal judgments lead to real change on the ground.

But change is also being led by those other ‘sub-systems’. Take technology for example: yesterday while waiting at traffic lights on Tower Bridge Road I noticed a young woman using Facetime on her Iphone to conduct an animated conversation using British Sign Language with the person at the other end. ICT has radically transformed the lives of people with sensory impairments, arguably more than anti discrimination law ever could. The arts, media, sport, education and so on can all provide as if not often more powerful levers for change than the law and must be effectively harnessed to those ends.

The disability movement has adopted many methods of campaigning for change, showing itself to be highly effective at self-organization and mobilisation, parliamentary lobbying, influencing public officials, innovative practice, civil disobedience and strategic litigation. It has sprung an entirely new strand of academic research and thinking with disability studies departments around the world.   One area where I believe it has been weak is in strategic communications to reframe discourse and turn around public attitudes.   Paternalistic notions of disability as tragedy and disabled people as vulnerable persist, sometimes in the communications of disability activists themselves.   We are unlikely to see real progress unless we begin tackling discourse and attitudes head on, using framing methods such as those developed by the Frameworks Institute for example.

Last but not least, in the IPPR report Barnes and Oliver argue that anti discrimination law ‘can force the pace of change towards forms of welfare provision which are no longer discriminatory, but instead are truly enabling’

As I wrote earlier this week:

‘while it is true that government is required to comply with equality law (and the European Convention on Human Rights) when making new laws, it has never felt to me that the fundamental principles of disability rights – that people have a right to independent living, to inclusion and to participate fully in all spheres of life without discrimination – have been the starting point when it comes to designing policy and legislation regarding the financial or practical supports that some disabled people require to make those rights a lived reality.  In fact, there is evidence that these principles have been rejected outright.’

The DDA/Equality Act (and more recently the UNCRPD) and the principles underpinning them have impacted on wider public policy, but ‘welfare provision’ is clearly far from being ‘truly enabling.’   This continued detachment of ‘welfare provision’ from disability rights has not only undermined efforts to reform policy and practice in support of independent living and equality, it continues to leave such provision extremely exposed to austerity cuts.

Advocates in the USA have evidently reached the same conclusion, but rather than bemoan the ADA as having failed they have decided to try do something about it.   As the preamble to the Disability Integration Act, currently winding its way through the US Senate and Congress says:

‘The right to live in the community is necessary for the exercise of the civil rights that the ADA was intended to secure for all individuals with disabilities. The lack of adequate community-based services and supports has imperiled the civil rights of all individuals with disabilities, and has undermined the very promise of the ADA. It is, therefore, necessary to recognize in statute a robust and fully articulated right to community living.’

 The DIA would in effect subordinate ‘welfare provision’ to the goals of the Americans with Disabilities Act. Hence any failure to provide support, or providing support in a manner that does not accord with the principles of non discrimination and independent living would clearly be regarded as a violation of civil rights.   The Care Act does not achieve this and we should continue to strive for freestanding legislation to promote independent living.

In conclusion, the solution that Oliver and Barnes put forward has mostly been implemented, albeit with the shortcomings in implementation I outline above. But even without those shortcomings it seems unlikely it would have alone provided the answer that they hoped for.

Those who in 1994/5 chose not to engage with the government over the Disability Discrimination Act have been proved right.   Far from it: The DDA – from the first Act in 1995 to the final in 2005 and its incorporation into the Equality Act is worth celebrating both because it has changed countless people’s lives for the better and because it represents an enormous achievement by disabled people and their allies.   Characterising that achievement as failure dismisses the huge power disabled people had and have to shape events.   Recognising its shortcomings, reviving and redirecting that power to address them is what is required today if we are to ‘make hope possible, rather than despair convincing.’

 

Is the US leading the way on disability rights once more?

I’m fascinated and inspired in equal measure by the US Disability Integration Act (DIA), currently making its way through the US Senate and Congress and enjoying high level political support from among others Democratic Party Presidential nominee Hillary Clinton.

It has many similarities to the LB Bill, with its core purpose being to:

‘clarify that every individual who is eligible for long-term services and supports has a Federally protected right to be meaningfully integrated into that individual’s community and receive community-based long-term services and supports’

The US has yet to ratify the UN Convention on the Rights of Persons with Disabilities, but the DIA in essence implements Article 19 of the CRPD – living independently and being included in the community.   However, the starting point with the DIA is the Americans with Disabilities Act 1990 (ADA). As the preamble to the DIA notes:

‘In enacting the Americans with Disabilities Act of 1990 (referred to in this Act as the “ADA”), Congress—

(A) recognized that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem”; and

(B) intended that the ADA assure “full participation” and “independent living” for individuals with disabilities by addressing “discrimination against individuals with disabilities [that] persists in critical areas”, including institutionalization.’

Most critically for me, the preamble goes on to say that:

‘The right to live in the community is necessary for the exercise of the civil rights that the ADA was intended to secure for all individuals with disabilities. The lack of adequate community-based services and supports has imperiled the civil rights of all individuals with disabilities, and has undermined the very promise of the ADA. It is, therefore, necessary to recognize in statute a robust and fully articulated right to community living.’

To solve this, the DIA proposes:

‘(1) to clarify and strengthen the ADA’s integration mandate in a manner that accelerates State compliance;

(2) to clarify that every individual who is eligible for long-term services and supports has a Federally protected right to be meaningfully integrated into that individual’s community and receive community-based long-term services and supports;

(3) to ensure that States provide long-term services and supports to individuals with disabilities in a manner that allows individuals with disabilities to live in the most integrated setting, including the individual’s own home, have maximum control over their services and supports, and ensure that long-term services and supports are provided in a manner that allows individuals with disabilities to lead an independent life;’

Five years after President George Bush Snr signed the ADA into law – and 14 years before the UK ratified the UNCRPD – the UK introduced the first Disability Discrimination Act (DDA) 1995.   Flawed though that first Act was, it signaled a major breakthrough for those who had campaigned for ‘full civil rights for disabled people’ just as the ADA had done in the US (and other similar law such as the Australia DDA had elsewhere).  In doing so it suggested a major political and cultural shift regarding the principles and intention of public policy regarding disabled people.

In the subsequent decade, many of the original gaps in the DDA were closed – all employers were brought within its scope, as was education, transport, housing and public functions. An enforcement body was established. The 2005 Disability Discrimination Act included a proactive duty on public bodies to eliminate discrimination and to promote equality.   In 2010, the Disability Discrimination Act was largely incorporated into the Equality Act 2010, which included a Public Sector Equality Duty.

Yet, while it is true that government is required to comply with equality law (and the European Convention on Human Rights) when making new laws, it has never felt to me that the fundamental principles of disability rights – that people have a right to independent living, to inclusion and to participate fully in all spheres of life without discrimination – have been the starting point when it comes to designing policy and legislation regarding the financial or practical supports that some disabled people require to make those rights a lived reality.  In fact, there is evidence that these principles have been rejected outright.

The Law Commission, in considering options for legislation that came to shape the Care Act 2014 responded to proposals to incorporate Article 19 of the CRPD into the Act as follows:

We agree that a principle based on an assumption of home-based living would not be suitable to be included as a principle in the statute. The key issue should be the person’s wishes and feelings, and in effect this principle could skew choice in one particular direction’

In effect the Law Commission advised the government to ignore the requirements of international law to which it had only a few years earlier agreed to be bound. Hence the ‘well-being’ principles in the Care Act fail sufficiently to reflect the principles of independent living, inclusion and the right to full participation that form the foundation stones of the UNCRPD and disability rights more generally.

While I am not bang up to date on education law, I expect the same can be said for supports for disabled children, which remain predicated on ‘meeting needs’ not on supporting full participation in inclusive educational life.   That is to say, the ‘promise’ of the DDA has not embedded itself in the way that other policy and legislation of instrumental importance to disabled people’s human and civil rights are conceived of or designed. With some notable exceptions, such as Access to Work or Disabled Students Allowance, much of the web of financial and practical assistance on offer to disabled people remains rooted in a ‘needs based’ rather than rights-based model of disability.

The Care Act is as a consequence insufficient to meet the requirements of the UNCRPD in statute and – because it includes nothing to ensure sufficient energy and resources are committed to supporting people to live independently in the community – in practice also, especially in the context of the massive cuts in local council budgets. For example, it includes no equivalent obligation to that proposed in the DIA:

‘to establish a comprehensive State planning requirement that includes enforceable, measurable objectives that are designed to transition individuals with all types of disabilities at all ages out of institutions and into the most integrated setting’

What fascinates me so much about the Disability Integration Bill in the US is not just its specific provisions but that it does take as its starting point the promise of full civil rights in the ADA.  As such its purpose is to extend civil rights to those denied them by virtue of their institutionalisation via steps to ensure adequacy of support for community based living.

In Britian, the narrative included in the preamble to the DIA would go something like this:

‘In enacting the Disability Discrimination Acts of 1995 and 2005 and their successor the Equality Act 2010 Parliament intended that the law ensured full participation and inclusion for disabled people.   The right to live in the community is necessary to the exercise of civil rights that our body of equality law is intended to secure for all individuals. Moreover, the UK as a Party to the United Nations Convention on the Rights of Persons with Disabilities has undertaken to ensure that disabled people can live independently to be fully included in the community.   The lack of adequate community based services and supports has and continues to imperil the human and civil rights of all disabled people and has undermined the very promise of our equality law.   While containing important and valuable provisions, the Care Act 2014 fails to fully accord with these principles or to provide sufficiently robust guarantees that they will be ensured in practice. It is therefore necessary to recognise in statute a robust and fully articulated right to community living.’

In practice this would see resources committed to social care explicitly directed towards the end of securing and supporting full civil and human rights for disabled people.   In doing so, the current major shortcomings of public policy and spending on care and support would be fully revealed (a reason it probably won’t happen soon). Applying this same provision to support for disabled children and young people both in education and wider life would have similar implications (and may be similarly resisted).

But…. while the DDA was undoubtedly the achievement of British disability campaigners and their allies in Parliament, the ADA had a massive impact in Britain and internationally. It was not only a legal template, it was even more so a political and cultural template for how States should treat their disabled citizens.   The US has arrived at a point where – even if the DIA does not become law this time around – it recognizes that the inadequacies of public services deny many of its citizens their civil rights and that this is a sufficient basis to legislate for, in effect, progressive social rights.

Just as the ADA changed the world, I hope the DIA gives us reasons to be optimistic once again.