So, 8 years in the making, the United Nations Committee on the Rights of Persons with Disabilities finally conducted its examination of the United Kingdom. Their findings and recommendations – and in particular their view that UK government policy has led to a ‘human catastrophe ‘ received huge coverage, being the second story on the BBC’s Ten O’Clock News bulletin and featuring on Newsnight, Channel 4 News and across print media. Disabled and Deaf People’s Organisations played a vital role in providing expert advice and evidence to the Committee and should rightly celebrate their success in influencing the outcome.
Having been involved in drafting two of the reports submitted to the Committee, I’m pleased to see a significant number of our recommendations included in the Committee’s final report, not least its calls for reform of mental capacity law and practice, the elimination of detention and deprivation of liberty on disability grounds, to refrain from the use of restraint in mental health settings and schools and to ensure evidence based practice to improve the employment of disabled people (and disappointed to see others – such as in relation to the unacceptable number of unexplained deaths of disabled people in State care, or the treatment of people with mental health problems in the immigration system, overlooked).
But it is now, as the dust settles, that the real challenge begins. Neither the Convention or the Committee’s findings and recommendations are self-executing. The Committee has been highly critical, but it has no powers of enforcement. To have any effect they will need to be embedded in strategies for social change.
Despite the devastating impact of austerity measures taking centre stage in both DDPOs own advocacy and the Committee’s criticisms, this is where achieving change is going to prove deeply, deeply challenging. Brexit is going to deliver a further deep blow to the UK’s economy, squeezing public resources further still and making spending choices ever more difficult, whatever Party or Parties are in government. At the same time, public support for spending on working age social security has been in decline for a quarter of a century, hence it will be a very brave party that spends scarce political capital taking a radically different course any time soon. In turn there is a real risk that, having turned to the Committee as a last resort in fighting cuts, DDPOs and disabled people more generally will judge the Convention to be impotent, as this article by Mark Lambert appears tacitly to confirm.
So where might the Committee’s concluding observations offer opportunities, and how can those opportunities be leveraged? Here, we need to break things down into principles, structures and specific policy goals.
On principles, it’s vitally important to take heed of the Committee’s observation that the UK has failed consistently to incorporate ‘the human rights model of disability across all policy areas and all levels and regions of all devolved governments, and jurisdictions and/or territories under its control.’ This is not just a message to government, but to opposition Parties, disability charities and campaigners. As the godfather of British disability rights Mike Oliver noted in 1990:
“It is perhaps ironic that many of us spent the 1970s criticising the welfare state, only to find that these arguments were built upon and taken much further by a government determined to reduce state expenditure. Consequently we spent the 1980s defending what we had previously attacked. In sum, we defended the indefensible and I do not propose to spend the 1990s doing the same.”
Britain’s welfare state was not rooted in a ‘human rights model of disability’ nor was it ensuring an adequate standard of living and social protection prior to the austerity measures pursued since 2010, or the advent of Employment and Support Allowance. Framing the goal now as ‘system restore’ – to simply return to the pre-2010 situation, as some campaigners and the Labour Party appear to be doing – may have some short term expedience, but it will not address the fundamental disconnect between the outdated principles underpinning social security policy and that of modern day disability rights. To Labour’s credit, it does appear to have at least begun to contemplate the idea that benefit eligibility assessments should centre on the interaction between people with impairments and health conditions and the external factors shaping their opportunities, as opposed to isolated assessments of functional capacity. Yet at the same time, it refers to disabled people as ‘our most vulnerable in society’, positioning disabled people as passive objects of State spending, not equal citizens whose rights and opportunities are suffering from disinvestment.
There are bigger debates in play about the future role of the State that have profound implications for disability rights, with which disabled people and their allies should be centrally engaged rather than – as Mike Oliver said – defending (or being used to defend) ‘the indefensible’. In sum, disability rights demands investment in disabled people’s right to live independently and to be included in the community – a springboard, not just a safety net.
That is why the most important set of recommendations by the Committee in my view concern Article 19 – the right to live independently and to be included in the community – and it is around the right to independent living that I believe all with a commitment to disability rights should coalesce. The Committee recommends that the State enacts a freestanding, enforceable right to independent living, conducts impact assessments to ensure policies support – and do not undermine – independent living, ensure adequacy of funding and have plans to ensure a full and sustainable transition from institutionalisation to community based living. But a focus on independent living – and the principles that underpin independent living – offer a chance to create much needed cohesion across different policy areas (as the last Labour government had begun to understand). Independent living synthesises civil and political rights – governance over ones own life and equal participation in the community – with economic and social rights – access to the financial and practical support to make these rights a reality. These same principles can apply from cradle to grave and create coherence between policy and practice in relation to children and education, employment, social security, health and social care, transport and planning and so on. Indeed the ’12 pillars’ of independent living were designed to do just that. In her excellent new blogpost, Jenny Morris explores how the right to independent living can be given effect.
This leads to the question of structures to achieve policy coherence. The Office for Disability Issues was conceived specifically to address this but is woefully under-resourced and seems to lack the political support it enjoyed at its inception. The status of the government’s ‘Fulfilling Potential’ strategy is unclear, while its content appears to be a series of moving targets with no clear end game in sight. While a cross Ministerial group was in existence, it’s unclear whether it has made a difference. The deep involvement of disabled people which marked the early life of the ODI appears to have been replaced by passive, infrequent consultations, while DDPOs, so central to the enterprise of advancing disability rights have faced severe resource constraints. The EHRC and its sister organisations in Scotland and Northern Ireland lack sufficient, sustainable resources to promote and enforce the law independently.
One can look at fixing the above simply as a set of costs. But it is the absence of this structure that is costly: policies conflict and cancel one another’s intended benefits; employers and service providers discriminate with impunity, with costs born by the benefits system or social care; where civil society is weak, the State picks up the bill. The disinvestment in structures for implementation is a false economy.
So, independent living and the principles underpinning offer guiding principles to a create a coherent, human rights based approach for implementation, while structures for implementation and monitoring must be re-built or made new, taking account of the sometimes radical changes in the machinery of government over the past decade.
Sadly, with Brexit proving all consuming politically, the chances of central government leading a radically new agenda do however seem slim, even if the political will is there. To those ends, I found it interesting that the Committee felt able to celebrate (albeing somewhat questionably with little equivocation) efforts in Scotland and Wales and the lesson there is that positive change can happen, both because of and despite devolution and localisation. In the week we mourn the passing of one of UK disability rights’ greats, Lorraine Gradwell, who helped chart a course for disability rights in Manchester way before the rest of the country caught up and who continued to spearhead innovative approaches in areas such as employment support despite the corrosive effect of welfare work policies, it’s always worth remembering that independent living began, just as it should end – in the ‘small places close to home’.