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.

Wot no disability Commissioner?

A quick post, away from the limited and needlessly heated confines of Twitter, about the question of whether the post of ‘Disability Commissioner’ has or has  not been ‘scrapped’ by the government or Equality and Human Rights Commission following the recent appointment of (Lord) Kevin Shinkwin as a Commissioner.

Firstly, unlike say the Children’s Commissioner, or Information Commissioner there is, nor ever has been, in reality a post of ‘disability Commissioner’ at the EHRC.   The Equality Act 2006 – the law establishing the EHRC – obliges the Secretary of State to appoint Commissioners, at least one of who must be a person who is or has been a disabled person.  This requirement is designed to ensure representation of disabled people on the Board.  There could be more than one person fitting this criteria.  It does not demand that any person or people meeting this criteria are experts in the field of disability rights or that they specialise in disability rights once appointed.  Nor does it confer any exclusive powers to the person or people meeting this criteria with respect to disability issues.   The government fulfils its obligations solely by ensuring this representation on the Board.

Separately, the 2006 Act required the Commission (not the Secretary of State) to appoint a  Disability Committee, the Chair of which and at least half of the members had to be a have been disabled people.  The Act did not require that the Chair was a Commissioner, although in practice its three formal chairs Jane Campbell, Mike Smith and Chris Holmes all were (with Alun Davies and Rachel Perkins – both non-Commissioners – performing brief ‘caretaker roles’ while Commissioner appointments were filled).  This made sense as the Committee enjoyed exclusive statutory decision making powers with respect to some areas of the Commission’s duties and powers as they related to disability, such as decision’s about which legal interventions to pursue in the area of goods, facilities and services.

As a result, an alignment came into being between the government’s statutory obligation to ensure representation of disabled people on the Board of the Commission, the Commission’s obligation to establish a Disability Committee and its ongoing preference to appoint a Commissioner as Chair of the Committee (who had to be or have been a disabled person).  The result was a disabled Commissioner with delegated powers on disability issues through their chairmanship of the Committee, or in shorthand a ‘disability Commissioner.’

Following an independent review in 2014, the Commission took the decision to extend the Disability Committee’s life for two further years, and to wind it down this year.  This in effect brought to an end any statutory delegation of powers regarding disability (and hence to a ‘disability Commissioner’).  While the Commission has powers to establish non statutory Committee’s and to delegate powers to them (e.g. its regulatory committee) it is not doing so on disability.  Instead it plans to establish a ‘Disability Advisory Committee’, the chair of which need not be a Commissioner or enjoy the status of public appointee.

Meanwhile, (Lord) Chris Holmes stepped down as Commissioner – and Chair of the Disability Committee –  late last year.   In order to meet its statutory obligations regarding the Board, the government advertised for a Commissioner who is or had been a disabled person.  As I have already said, in law this obligation concerns only representation – it confers no specific powers, nor creates any unique expectations of any persons that are appointed to fulfil any obligations related to disability specifically.

However, while I have not seen the recruitment pack, a report by John Pring suggests that it implied the person would act as the ‘Disability Commissioner’ and that upon his questioning the Commission and the government about this, it is unclear whether the person appointed – Tory Peer, Kevin Shinkwin – will be assigned this status.  Pring concludes this means that the government has ‘secretly scrapped the post of disability commissioner.’  Upon my pointing out that such a post had never existed and querying why it was advertised as such Pring accused me of  ‘either trying to defend government or EHRC’, a curious accusation as I was in fact defending neither, merely pointing to the legal fact that the government has no obligations or powers to appoint or anoint at disability Commissioner.

So legalities aside, why might there be a reluctance to describe Shinkwin as the ‘Disability Commissioner’ despite a recruitment process that apparently indicated this was the role advertised?

Well, perhaps the EHRC, which has been striving hard to rebuild bridges with the disability community given the distrust caused by having had as ‘disability Commissioner’ a Tory Peer who voted in support of damaging welfare reforms in the House of Lords, preferred another candidate to a Tory Peer who voted in support of damaging welfare reforms in the House of Lords.  And perhaps, given the delay in the appointment, the Commission had been battling behind the scenes to secure its preferred candidate, but on failing to do so realised it has an ace in the pack: to deny the person appointed by government the status of ‘disability Commissioner’ given it is under absolutely no statutory obligation to confer such status and the government has no powers to do so either.   By doing so, it can avoid the appearance of special authority on disability having been conferred to Shinkwin, which would have needlessly undermined trust further still.  That is to say, the least damaging course of action following Shinkwin’s appointment is not to have a dedicated disability Commissioner.  None of which is to say that Skinkwin doesn’t bring valuable insight and experience to the Commission, including on disability.  I’m sure he does and personally believe its extremely valuable to have a plurality of political views and affiliations on the Board.

This,  I can assure you, is idle speculation. I have no inside track.  But if I am right, it suggests to me that Pring is misreading the lack of clarity about a disability Commissioner.   What it – and recent positive signs from the Commission suggest – is that we have a Commission that is prepared to fight for disability rights, not one that is striving to dilute it.

How to talk about disability & human rights

Thanks to Catherine Townsend from Wellspring Advisers for allowing me to share this fascinating and incredibly useful report by the Frameworks Institute on how to talk about disability and human rights.   The report is the first stage in a longer exercise in finding more effective ways to communicate about disability in more persuasive ways.       Perhaps the most challenging question posed in the report is whether the language of rights is particularly helpful at all where disability is concerned….

In summary, the report found that disability organisations (those working in the international sphere) typically:

• Blitzed on unframed facts and numbers which only experts understand
• Described the situation of disabled people without explanation
• Concentrated on problems while offering few if any solutions, removing any sense that problems could be fixed
• Relied on crisis stories, which also tends to overwhelm (or excuse) any sense that problems can be addressed
• Employ vivid stories, which counterproductively locate problems at the individual rather than systemic level

I expect we can all recognise these fault-lines in communications around disability and other areas.   Frameworks recommend that effective communication demands:

• Using thematic stories, not individual stories, to foreground the systemic factors shaping outcomes
• Leading with values, not facts/information
• Combining urgency with efficacy – people must feel a problem can be solved.  Set out the solution
• Avoiding crisis language
• Developing and deploying examples that emphasise solutions, not problems
• Connecting outcomes to society as a whole – explain how the positive or negative outcomes facing disabled people affect everyone
• Contextualising numbers – don’t expect them to speak for themselves
• Avoiding myth busting – it tends to affirm the myths, not overcome them.

Fully adopting the lessons herein can be deeply challenging, but the rewards could be enormous.

Care crisis, what crisis? £10 a week should do it….

So Labour’s burst of policy announcement’s over Easter included its plan to increase Carers Allowance by 17% (or £10 per week), at a cost of £538m, to be funded by reversing George Osborne’s cut to inheritance tax. It’s a good bit of politics, aimed at cementing Labour’s claim to be the true party of fairness. Very Milibandian even….

I’ve no doubt many families would welcome a 17% increase in their benefit income. The income penalty associated with disability – whether born by disabled people or those who support them – is high and it is right that this is recognized via redistributive measures.

At the same time, such policies, absent of any wider plans for social care, further consolidate the normalization of unpaid care-giving, while negating to offer anything to address it.   Listen to the rhetoric from Corbyn surrounding the announcement.

“Britain’s social care crisis was made in Downing Street by cutting £4.6bn from council care budgets. Millions of unpaid carers have been forced to fill the gap and put under even greater pressure as a result.

“We believe these unsung, unpaid heroes not only deserve our praise and recognition – they deserve better financial support. That’s why Labour is convinced it’s both morally and economically right to give the carer’s allowance a boost of £10 a week.”

First, the ‘social care crisis’ has been made worse by austerity – significantly worse. But its cause is a result of decades of political failure, including 1997-2010.   Labour offers nothing here to address its own past failings or in terms of future vision. Increasing Carers Allowance by £10 per week is the cheap and easy route politically, while leaving millions of people without the support they urgently need.

The reality is unpaid care-givers are over-sung and over-heroised by politicians in order to create a smokescreen. Only politicians benefit. The Association of Directors of Social Services estimates that a third fewer older people receive any statutory support than a decade ago. Who picks up the slack? Are they willing heroes?

We need a revolution in the area of adult care and support, one with equivalent transformational political force as that which has taken place in relation to childcare over the past 20 years. Care and support needs to be recognized as part of the public infrastructure, linking together goals of health and wellbeing, increasing employment, promoting good family life and stronger communities.   That is, like childcare, it needs to be viewed not as a cost, but as an investment. Until then the crisis will not be averted, it will just continue to be ignored.

 

 

 

 

 

Summary of the UN Committee on the Rights of Persons with Disabilities ‘list of issues’ for the UK

On Tuesday 4 April 2017 the UN Committee on the Rights of Persons with Disabilities published its ‘list of issues’ for the UK. This followed a meeting with DPOs and equality and human rights bodies in Geneva in March to discuss the evidence that they submitted to the Committee concerning the state of UK disability rights.

The ‘list of issues’ sets out the areas where the Committee believes there may be shortcomings in the UK’s action to implement its obligations arising from the question and takes the form of a number of questions to the government(s) of the UK, which it is asked to answer before the full examination which will take place at the end of August. DPO’s, wider civil society and the equality and human rights commissions are also all invited to respond, most likely by sometime in June (date to be confirmed). The Department for Work and Pensions has said that it will consult on its own response during May

Below is a summary of the headline issues. The Committee has asked the UK:

• To set out how policy on disability is based on a human rights approach


• About the mechanisms for coordinating implementation of the Convention across national, devolved and local government

• In particular it inquires about the status and outcomes resulting from ‘Fulfilling Potential’, the UK government’s disability strategy

• About measures taken to protect the right to life and to address inequalities in life expectancy

• About gaps in the Equality Act 2010 and in relation to parts of the Act not yet implemented concerning reasonable adjustments

• About ‘Measures to prevent discrimination on the basis of potential impairment as regards pregnancy termination‘

• How intersectional discrimination is being addressed and in particular about steps to tackle violence against disabled women

• 
About action to address high levels of poverty among families with disabled children

• How disabled children and their families are involved in decision-making about their support

• About steps to tackle disability related harassment and bullying of disabled children in schools

• How the UK is tackling negative attitudes, in particular towards people with dementia or learning disabilities


• What steps are being taken to implement, coordinate, monitor and sanction in relation to advancing accessibility

• What steps are being taken to repeal discriminatory legal capacity laws and to provide access to supported decision-making

• For evidence regarding the impact of legal aid reforms and employment tribunal fees on disabled people’s access to justice

• What training has been provided to the judiciary regarding the rights of persons with disabilities

• 
How measures concerning deprivation of liberty are rooted in the principle of supported decision making

• About steps taken to eliminate involuntary detention of disabled people in hospitals, institutions and residential homes on the basis of disability

• About steps to eliminate the use of restraint in all settings

• About the scope and efficacy of the governments strategy and action to eliminate disability hate crime


• To identify the legal protection of the right to independent living and the means by which disabled people can enforce it

• About sufficiency of budget allocation to ensure realisation of the right to live independently and to be included in the community

• ‘How the State party calculate the costs of independent living vis-à-vis institutionalization of persons with disabilities’

• About the legal mechanisms to ensure the availability of support based on choice, control and inclusion


• About the availability and funding of sign language interpretation


• For data on numbers in mainstream or segregated education and for info on measures to promote inclusive education

• About measures to mitigate any negative impact on  access to education to young persons with disabilities in particular from low income households vis-à-vis the reduction in the Disabled Students’ Allowance (DSA) in England;

• How health inequalities are monitored & eliminated

• 
What mechanisms exist to address the suicide rate among disabled people

• About measures to eliminate disability poverty and for evidence of outcomes of any strategies to do so

• How government monitors impact on the right to an adequate standard of living of policies and programmes, including cumulative impact

• How the government ensures the Work Capability Assesment is individualised and based on the social not medical model of disability

• About steps to ensure equal access to voting in elections

• For updated information on the coordinating mechanism (the Office for Disability Issues) and the involvement of disabled people


The list is a good outcome for all who have been contributing to the examination and helpfully frames the chief challenges facing disability rights in the UK.  This will provide a benchmark for future examinations, irrespective of which party or parties form the governments of the UK.

The chief task now is to secure some sharp, actionable findings and recommendations in the Committee’s ‘concluding observations’ that can underpin advocacy efforts in the months and years ahead, and in particular to ensure that they speak to the ever more devolved context of the UK.

It always seems impossible until it’s done

Yesterday afternoon the Equality and Human Rights Commission published a detailed report highlighting major equality gaps facing disabled people in Britain today.  The report echoes and amplifies many of the issues raises in the ‘alternative reports’ recently sent by the Commission and civil society organisations to the UN Committee on the Rights of Persons with Disabilities.

Unsurprisingly, pinpointing as it does policy and institutional failure, it makes for depressing reading.  As Baroness Jane Campbell recently opined in the Guardian, in too many areas progress has stalled or we are going backwards.  The promise of freedom, independence and opportunity that motored a rapid period of change in disability policy, law and practice from the early 1990s feels to have hit a wall following the financial crash of 2008, the austerity measures and massive political upheavals that have followed.

Britain and the wider world today and in the years to come is a world away from that in which these major achievements took hold.  The past will not return.  We have no choice but to think differently.  Yet in finding a way forward we need to learn from past mistakes without disinheriting those achievements.   And in arguing the case for inclusion, we need to avoid the trap of communicating only the problems, absent of any account of the many major steps forward of the past few decades.

Many people classed as disabled under the Equality Act or UNCRPD – the majority even – are doing well and far better than their predecessors.  They are living, learning and working alongside non-disabled people, are healthier and wealthier,  leading lives they wish to lead, contributing socially and economically and so on: a result both of social progress generally and of specific measures regarding disability rights.  In many areas things did improve and marked progress was made.  This is not a story of abject failure, or people having dreamt impossible dreams.

Yes, ‘inspiration porn’ of the sort peddled by Disability Confident must be avoided, but equally corrosive is the ‘desperation porn’ that can make problems seem inevitable and insurmountable and which can leave people feeling hopeless and despondent.   We have to tell a positive story of the world as it can be to convey the unfairness and waste of the world as it presently is for too many people.   We must convey solutions and possibilities  in line with the UNCRPD’s requirement to ‘promote awareness of the capabilities and contributions of persons with disabilities.’   We should be concerned about the most disadvantaged but not in a way that excuses government from attending to the lives of disabled people in the round within a vision of equal, shared citizenship.

Only high expectations shine a light on injustice.   As Nelson Mandela said, ‘it always seems impossible until its done.’

 

 

 

 

 

 

 

 

 

 

 

 

 

Why enhancing, not diminishing the value accorded to people with learning disabilities must be our starting point

Unemployment amongst people with learning disabilities is far from inevitable.

In the State of Vermont USA, almost 40 per cent of adults with learning disabilities are in employment, paid at least the minimum wage, in the open labour market.   The backstory to this success involves the state closing down its sheltered workshops, where people were paid below the minimum wage, and redirecting the savings and other resources towards support to participate in the community, via direct payments, placing people with learning disabilities and their advocates in the driving seat, to spend on employment, training and other community support.  The minimum wage has proved no impediment to significantly increasing employment opportunities for people with learning disabilities.   Arguably it is central to this story of success, for it signals the equal worth attached to people with learning disabilities, without which real inclusion cannot hope to prosper.

In Britain, fewer than 2 in 10 adults with a learning disability are in paid employment. Among people receiving long term support from their council the figure is an appalling 5.8%.  There is zero evidence that this is a consequence of the national minimum wage, or its recent increase.   There is plenty of evidence that it is a product of low expectations, barriers experienced during common recruitment practices and a lack of often basic and cost free workplace adjustments. More appallingly, there is also evidence that these factors can be overcome through effective, personalised employment support of a sort that both local councils and the DWP continue to fail to invest in.  The recent Work, Health and Disability Green Paper holds little promise.

Of course the size of the learning disability employment gap, coupled with chronic under-investment in effective support has not stalled benefits reform, with ever increasing numbers of people with learning disabilities forced to survive on incomes that the European Committee on Social Rights has described as ‘manifestly inadequate’, while subject to ever more draconian, yet entirely unproductive conditionality and sanctions.   This is a system that robs people of agency and hope; where despondency sets in and becomes ever more difficult to escape.

I sense that the challenge of living on benefits, or for that matter on an income below the national minimum wage, was not front of mind when Rosa Monkton and Libby Purves wrote their respective articles. In response to criticism on Twitter Purves replied:

‘The problem you furious people have is thinking “worth” only means money. ‪@MoncktonR is talking of lives, happiness, reality.’

Of course it’s so much easier to say ‘worth’ doesn’t only mean money when your reality is one where you rarely if ever worry about having it.  Money might not bring happliness, but not having enough money to eat or pay the bills, let alone live any sort of life, certainly has a habit of getting in the way. Most people’s reality is day-to-day survival.   Lives, happiness and reality’ are ‘free to those who can afford it….very expensive to those who can’t.’*

One senses Monkton and Purves’ reality is somewhat removed from the majority. They argue that people with ‘serious’ learning disabilities need not be paid the minimum wage because ‘Most people involved, will be living with parents or in sheltered communities and have benefits help.’ That is to say, in their view, most people already lead a comfortable life, with all the money and support that need. Nothwithstanding the huge inaccuracy of this statement, it also shows utter disregard for people’s desire for financial independence, their own home, social status, a relationship and family of their own, a job that rewards them fairly….for, err, ‘lives, happiness…’  But then, the fact that Purves prays in aid the views on disabled peoples rights of Tory MP Philip Davies, presently to be found filibustering legislation to improve protection for women from domestic violence, reveals how devoid her outlook is of any commitment to equality and inclusion for people with learning disabilities.  

Monckton and Purves argue that demanding the minimum wage is ‘denying them (people with learning disabilities) the fulfilment of work by making them unaffordable.’ This is an astonishing statement for many reasons, not least that there is not a shred of evidence to support it, but particularly because it perpetuates the very foundations of prejudice and discrimination that lock people with learning disabilities out of the labour market and society more generally: low expectations. The act of employing a person with a learning disability is reduced to one of charity. They should not expect the minimum wage because they are worth even less than the minimum. They will be alright financially because their parents will look after them (until they die) and if not they can be looked after in ‘sheltered communities’ and live off £73 a week, which they don’t need anyway. In fact, according to Purves money doesn’t matter because ‘Some — not all — don’t quite understand money’ (translated: they lack the wherewithal to enjoy equal rights).

This ‘soft bigotry of low expectations’ often masquerades as care and compassion and through doing so masks the causes of injustice and inequality. We live in a country where the recently bereaved parents of adults with learning disabilities who have died are told by medical professionals that their death was ‘probably for the best,’ where local councils have no idea as to the employment status of a third of people with learning disabilities that they support, where a prime-time BBC programme shows people with learning disabilities being tortured in institutions and yet five years on just as many people are stuck in them.

This soft bigotry also clouds our judgment of the parents of people with learning disabilities. In her article Purves decried how ‘the voice of close experience gets shouted down by formulaic pieties.’ Yet accepting without question the views of parents about their adult children’s best interests is itself a manifestation of prejudice and inequality. Society sees only sacrifice and presumes only good intentions, even when parents are calling for their adult children to be legally regarded as worth less than everyone else.

In truth all parents are fallible and all parents are capable of prejudice about their own children’s capabilities and potential, whether disabled or not. As parents we can also project our own fears and insecurities onto our children in ways that limit them now and in the future. And as parents we are not isolated from the prevailing social attitudes around us, whether in relation to disability, gender or homosexuality for example.

Many parents are strong advocates of their adult children’s rights to equality and full participation, yet are often frustrated by a lack of resources, choice and opportunities. Others respond to these constraints by striving to replicate what they consider to be the protective shield of family life via a ‘custodian model’ of care. This has historically often involved people with learning disabilities being denied the right to self-determination, to live independently, to have relationships and a family and so on under the rubric of protecting their ‘best interests.’ In the past, many parents opted for the institutionalisation of their adult children with learning disabilities, sometimes for want of any other support but also sometimes out of shame and to evade stigma.   Monckton herself has been an opponent of moves from institutional care to community-based living, albeit under the banner of promoting ‘choice.’

Monckton is of course absolutely correct to identify the isolation, loneliness and lack of identity and purpose many people with learning disabilities continue to experience. In a seemingly hostile society, manufacturing alternatives to full inclusion can seem like the kindest response. But the successes in Vermont show that there is another path to overcoming these realities if we really want to take it.  Institutionalising inequality and low expectations will set us in the wrong direction.  According people with learning disabilities equal value, and raising our expectations, has to be the starting point.

*courtesy of Bruce Robinson, from ‘Withnail and I’

Why it’s time to be patriotic about equality

Britain’s equality law story certainly features some important chapters involving the European Union. It is clearly important to consider the implications of Brexit for equality and non-discrimination and to strive to mitigate any risks resulting from our departure.   Yet in truth, Britain has on the whole gone far faster and much further on equality and non-discrimination law despite, not because of our membership of the European Union.   This is as a result of highly effective civil society activism, pioneering Parliamentarians, shifting social attitudes and inspiration drawn not for the most part from Europe but from the USA.

Britain’s first race discrimination laws came onto the statute book in the 1960’s and were inspired by US civil rights law. The Americans with Disabilities Act 1990 provided the template for the Disability Discrimination Act 1995. Both in turn are widely held to have provided inspiration for the anti-discrimination Directives of the European Union, which only appeared in 2000.

Importantly, the Employment Equality Framework Directive 2000 did expand the range of protected characteristics to be covered by anti-discrimination law to include age, sexual orientation and religion.  Further, the Coleman v Attridge law case in the CJEU saw those discriminated on grounds of their association with disabled people, such as carers, brought within the protection of the law.  Yet in implementing the Directive Britain went further than required by protecting people from discrimination not only in employment but also in relation to goods and services. A draft EU Directive to extend protection from discrimination beyond the field of employment has made little progress for almost a decade. Britain did not wait for the EU: the Equality Act 2010 harmonised all of Britain’s anti-discrimination law, providing parity of protection in relation to race, gender, gender identity, disability, age, sexual orientation and religion and belief.

British equality law also goes way beyond the ‘formal equality’ demanded by the EU Directives.   The intention of the Public Sector Equality Duty is to get at those causes of discrimination and inequality that are institutionally bound through a model of ‘enforced self regulation’ by public bodies, aimed at their taking steps to eliminate discrimination and advance equality.  And we have gone further in other ways too, first with civil partnerships, then with Equal Marriage, for example.

Conversely, under the rubric of de-regulation, the 2010-15 coalition government rowed back on key features of employment protection in the Equality Act 2010, introduced employment tribunal fees and imposed huge cuts in the budget of the Equality and Human Rights Commission without once facing censure by the European Commission.

In sum, while Britain has had to comply with the EU law it has helped to create, equality and non discrimination policy and law has largely been a domestic matter.

I’ve no doubt legal and constitutional law experts (of which I am not one) will point out that it is loss of the ‘constitutional underpinnings’ of our membership of the EU that really matter and which require attention. Specifically, that the protection and promotion of equality will be weakened once our laws operate outside of EU principles, the Charter of Fundamental Rights and cease to be directly shaped by the jurisprudence of the Court of Justice of the European Union. One way to mitigate this has been proposed by the House of Commons’ Women and Equalities Committee:

‘Leaving the EU provides an opportunity to return to Parliament its role to ensure that equalities are robustly protected. The Equality Act 2010 is the culmination of decades of development of domestic protection of equalities. An additional clause in that Act adding a function of a declaration of compatibility into the Equality Act would act as an entrenchment of these rights that were enacted by Parliament. (Paragraph 42)

4.The Government should give strong consideration to bringing forward an amendment to the Equality Act 2010 to mirror provisions in the Human Rights Act 1998. The purpose of that amendment would be to set out that public authorities must not act in a way that contravenes the Equality Act unless required to do so by another Act of Parliament; that ministers, when presenting any Bill, must make a declaration of compatibility with the Act; that interpretation of legislation by the courts must take account of the Act and be read as far as possible to comply with its provisions; and that, if any legislation is incompatible with the Act, a declaration of incompatibility should be made by the court. (Paragraph 43)

The case for ‘constitutionalising’ equality in this way was made during debates about the Equality Act in 2010. Specifically it was proposed that the Act offered a vehicle for the UK to ratify Protocol 12 of the European Convention on Human Rights (establishing a freestanding right to equality). The proposal was rejected by the then Labour Government and enjoyed little if any support from the Conservative Party.

In making this proposal the drafters of the Women and Equalities Committee report have clearly tried to sing in harmony with the mood music by presenting the idea as restoring or reaffirming Parliamentary sovereignty. The wording ‘return to Parliament its role’ is curious. Return from where? Was Parliament robbed of its role, and if so, by whom – the European Commission? The Court of Justice of the EU?

This is ‘taking back control of equality’ and it has unsurprising echoes of ‘bringing rights home’ – the branding in 1998 of the Human Rights Act as bringing home the ECHR. But therein lies the problem. First, the positioning of this proposal as necessitated by Brexit and – in effect – involving further incorporation of the ECHR – suggests that it is in practice about constitutionalising not just equality, but ‘European’ equality. Second, it is ultimately about binding Parliament, not empowering it and will be seen as handing further power to the Courts at a moment where judges are being cast as ‘enemies of the people.’

In any case, with a government committed to repealing the Human Rights Act, a Prime Minister keen to take the UK out of the ECHR and the general antipathy towards ‘judicial activism’ this is a proposal that seems very likely to be ‘dead on arrival’.  And while objectively I can see its merits, politically I fear it will be a disaster if equality activists invest their energies in pursuing it now.

I think the future of equality in post-Brexit Britain has to be won politically, not via binding legal measures as attractive as they may seem.   We have much to build on. Britain has been able to go further and faster than the EU has demanded because in time a general political consensus has evolved which regards discrimination as an unacceptable and a socially and economically undesirable feature of modern British life.

Brexit is an inflection point, where we will be forced to ask ourselves who we are and what we stand for.  Our challenge now is to set out a compelling story of equality, not as a hangover of our membership of the EU, but as a proud part of our national story and as central to a thriving future.

 

Postscript

I’m advised that the measure proposed by the Women and Equality Committee could be achieved without ratifying Protocol 12 of the ECHR, for example by amending the Equality Act 2010 to insert provisions similar to those in the Human Rights Act regarding the obligations of Ministers and the respecting obligations and powers of the Courts and Parliament.   That provides a way around the ECHR Protocol 12 obstacle, but it still begs the question: if our equality laws are home grown, why is Brexit the moment to do this?