A commission on the future of disability rights in Britain?



Last year I drafted this concept note, proposing a Commission on the Future of Disability Rights in Britain and shared it with a few people – there was lots of positive comments but little sense that anyone was in a position to pick it up and move it forward at that stage.  I’m sharing it on here to see if any organisations would be interested in hosting and/or funding such an important and timely project.  Although I would welcome involvement, I am not precious about the idea and welcome its development and being taken forward by others.  I certainly cannot make it happen working alone.  If you’re interested, don’t hesitate to get in touch using the contact form at the end of the post.  Best wishes, Neil


1.      Aims, objectives and outputs


1.1          Aim


The aim of the project is to critically review and report on the state of disability rights in Britain and to make recommendations for priority action to ensure continued progress in implementing the United Nations Convention on the Rights of Persons with Disabilities with a view to influencing both domestic debate and the examination of the United Kingdom by the United Nations Committee on the Rights of Persons with Disabilities expected in 2015.


1.2          Objectives


The objectives of the study are to:


a)      Map the state of disability rights in Britain and identify, via research, consultation and engagement, key priority themes


b)      Critically evaluate the British government’s performance in relation to implementation of the United Nations Convention on the Rights of Persons with Disabilities across key priority themes


c)       Identify priority areas for action and develop recommendations


d)      To consider how greater receptiveness by the public, media and other actors to the rights of disabled people might be achieved and to make recommendations regarding new frames and narratives


1.3          Outputs


a)      The establishment of a short-life commission on the future of disability rights


b)      An evidence map identifying the key priorities for action on disability rights in Britain


c)       A report identifying positive and negative features of government policy and practice in relation to these priority areas for action


d)      A report identifying recommendations for future policy and practice


e)      Framework analysis, narrative and message development, including the output of public polling and focus group, to further to implementation of the identified recommendations

2.       Background


2.1   Rights, then


When the United Nations Convention on the Rights of Persons with Disabilities was adopted in December 2006, the landscape regarding disability rights in Britain looked radically different to today.


A diverse alliance of organisations of and for disabled people helped ensure that the previous decade was bookended by two Disability Discrimination Acts (1995 & 2005), and punctuated by a series of legal developments which together prohibited disability discrimination in almost all areas of life.  In December 2006, new positive duties on public bodies to proactively eliminate discrimination and promote disability equality came into force.


The Human Rights Act 1998 had begun to reach the parts discrimination law could not, securing dignity and autonomy for disabled people using or requiring health or social care.  The Mental Capacity Act 2006 introduced a new presumption of mental capacity, aiming to safeguard rights to liberty and self-determination.


The Prime Ministers Strategy Unit report on the Life Chances of Disabled People (2005) saw the adoption of independent living as official government policy, with a new Office for Disability Issues established to oversee its development and implementation across government.   This was accompanied by a commitment to involve disabled people in policy-making, piloted in initiatives such as Equality 2025, an advisory group to government made up of disabled people, the co-productive approach by which the Independent Living Strategy (2009) was developed between disabled people and government officials and other mechanisms such as the Disability Employment Advisory Committee and the Disabled Persons Transport Advisory Committee.    The Disability Equality Duty also helped transform the relationship between disabled people and public bodies by requiring duty-holders to involve disabled people in meeting the duty.


The Disability Rights Commission, established in 2000, played a critical role in promoting the implementation of the new legal duties as well as promoting good practice and public awareness and understanding.  In its final full year of operation 2006-7 its annual budget was £22 million.  It – and the then separate organisations regarding race and gender discrimination – was replaced in 2007 by the Equality and Human Rights Commission (EHRC, which also has responsibilities in relation to age, sexual orientation, religion and belief and human rights.   The EHRC’s founding statute included a statutory decision-making Disability Committee (an arrangement not extended to the other ‘equality grounds’) which was conceived to ensure continuity regarding the ongoing implementation of disability discrimination law and expert advice to the commission regarding the distinctive technical aspects of both the law and its application in practice.   The Equality Act 2010 replaced the Disability Discrimination Acts, consolidating them with other non-discrimination law.


Areas of policy and public services of central importance to disability rights, such as social care, suffered under-investment and required reform, and the seeds of the divisive and unsuccessful welfare reforms underway today were being sown.   While the UK may have been a trailblazer in relation to disabled people’s civil and political rights, little if any progress was made in embedding economic and social rights to support and resources, with benefits and public services continuing to be designed and allocated as ‘welfare’ to be distributed at the discretion of the benevolent State.   This reflected a broader lack of willingness by the UK government to move beyond codifying the civil and political rights contained in the European Convention on Human Rights.


However, the overall direction of travel was aligned to a commitment to disabled people as equal citizens, with both the commensurate rights and responsibilities that such status endows.   It was unsurprising that the UK Government felt able to confidently sign and then ratify the UN Convention on the Rights of Persons with Disabilities in June 2009.  In the government’s own words ‘After signing the Convention in 2007, the UK reviewed its existing legislation for consistency with it. Because of the approach to disability equality that had been developed over a number of years, and the progress already made, it was able to ratify the Convention successfully.’


2.2          A ‘lost decade’ for disability rights?


It seems that the mid 2000’s may have been the high watermark in relation to progress on disability rights in Britain.  It is of course important to recall that these developments took place against a backdrop of continuous and unprecedented economic growth (which may also have generated some degree of complacency about continuing expenditure on public services and jobs growth).  Nevertheless, it appears not only that further progress has stalled in the context of the UK’s post-crash political and economic climate; a number of the key building blocks put in place before the crash are now being dismantled, undermined or neglected.   Moreover, in 2013 ‘disability rights’ as a concept appears to have diminishing purchase on public and political debate, government policy, the action of public bodies or even in framing the advocacy of disabled people and their organisations.


Disabled people without doubt look set to be major losers as a consequence of the public spending cuts being implemented by the coalition government.   There will be less money in many disabled people’s pockets and fewer public services available.   While programmes of ‘de-institutionalisation’ are underway in parts of Eastern Europe, disabled people in parts of Britain face the prospect of ‘re-institutionalisation’ with residential care the only option offered to people requiring care and support.  Many of those able to remain living in their own homes will find themselves without the financial or other support to participate in the community.   For many disabled people rights have little meaning at all where civil and political rights become divorced from economic and social rights, such as the assistance needed to get out of bed and eat, to go the polling station, get an education or to go to work, yet that is the reality many will face in the months and years ahead.   The impact of the cuts also extends beyond simply the availability of resources and support.  It appears to be undermining reforms designed to accord disabled people greater autonomy over their lives with stricter rules being imposed over how resources are used or money spent.   Further, a general climate of suspicion regarding the authenticity of those claiming disability related benefits risks forcing disabled people in need of support having to enter a state of suspended animation lest their entitlement be brought into question, reflecting and compounding pre-existing stereotypes and prejudices that equate disability with dependency and lack of productivity.   Civil and political rights to dignity, respect and self-determination are also being undermined by austerity.


It is unsurprising that the most vocal campaigns being led by disabled people are those, such as the Spartacus Campaign, resisting such spending cuts.  However, these campaigns have typically employed frames and narratives which predate the focus of disability rights campaigners during the 1990’s, drawing instead on caricaturing disabled people as ‘our most vulnerable’ citizens who are deserving of society’s benevolent support rather than as equal citizens whose rights are being violated.  On the other side of the debate the focus of political parties and the media is almost overwhelmingly that of using welfare as an instrument of social control via ever more punitive sanctions in order to restore ‘fairness’ to the system.  Here the narrative is one of ‘welfare dependency’ resulting not from economic failure but from a lack of moral agency among those seeking support from the State.


Debates regarding welfare reform, local authority spending cuts or abolition of schemes such as the Independent Living Fund are conducted as though the State possesses no duties or obligations under international law to respect, protect or fulfil rights.  The Joint Parliamentary Committee on Human Rights has been a lone voice in describing these developments as at risk of breaching the UN Convention on the Rights of Persons with Disabilities.  The failure to have embedded rights in the way welfare and public services are debated, designed and allocated has left disabled people’s rights fatally exposed.


However, it is not only outcomes which are threatened.  In its initial report to the UN Committee on the Rights of Persons with Disabilities, the government said that ‘The UK supports the obligation of Article 4(3) that disabled people should be involved in implementation of the Convention, and in other decision-making processes on issues that relate to them so that their views, experiences and expectations are taken into account in policy development and delivery. This approach already informs the development of UK policy, and the report refers to a number of examples. Equality for disabled people can only be achieved by disabled people themselves and all parts of society working in partnership with Government.’  However, in practice what progress that had been made in securing disabled people a seat around the table in relation to the policy and decisions affecting their lives is being steadily eroded.  The Public Sector Equality Duty did not carry forward the duty under the Disability Equality Duty to involve disabled people,  Equality 2025 has been rationalised, the Disability Employment Advisory Committee was abolished and the EHRC has recommended that its Disability Committee is disbanded in early 2014.  The Disabled Persons Transport Advisory Committee was earmarked for closure but has recently been given a reprieve.   Disabled people’s organisations are struggling financially to survive, with the UK Disabled People’s Council recently losing its only paid member of staff and facing closure.


In its initial report to the UNCRPD Committee the UK Government positioned the Public Sector Equality Duty as a core vehicle for implementation of the UNCRPD arguing that: ‘With ratification achieved, new or reformed legislation and policies that may affect disabled people are considered in the light of Convention obligations, including the concept of progressive realisation to which Article 4 (2) refers. The requirements of the Equality Act 2010 (further described below) already mean that public authorities must have regard to the impact of new policies on disabled people. The Convention adds additional impetus to this.’  However, in its inquiry into disabled people’s right to independent living (March 2012) the Joint Parliamentary Committee on Human Rights said: ‘We are concerned that the UNCRPD, and Article 19 in particular, does not appear to have played a central role in the development of policy. Inadequate attention has been paid to the impact of relevant policy on the implementation of the UNCRPD, in contravention of Article 4(1) and 4(3).  In a speech to business in December 2012 Prime Minister David Cameron announced that the government was ‘calling time in equality impact assessments’ characterising the process as red-tape which got in the way of the priority business of government which was to bring about economic growth.    The Public Sector Equality Duty has since been the subject of a government-sponsored review.  Despite little supporting evidence, the Chair of the review, aided by government spin cast the duty as often amounting to little more than ‘red-tape.’


The Office for Disability Issues, which was described by the government as the UK’s ‘focal point’ and ‘coordinating mechanism’ for the implementation of UNCRPD can no longer be described as a standalone cross-government agency.  Though it has overseen production of a recently published cross government disability strategy and led some important work regarding the capacity of disabled people’s user led organisations, the Office itself been assimilated into the Department for Work and Pensions and rendered largely subservient to the welfare reform agenda, with little budget or influence.


The Equality and Human Rights Commission, which acts as an ‘independent mechanism’ under the UNCRPD and which as a national human rights institution is tasked with protecting and promoting its implementation, has struggled to combine its various responsibilities and was the subject of Parliamentary criticism.  Despite delivering important programmes of work regarding disability related harassment and actively promoting UNCRPD many disability stakeholders do not view it to have provided the focus of the Disability Rights Commission.  Further, its budget has been progressively cut, from pro rata £70 million per annum in its first year of operation to less than £26 million in 2014-15.  With a further cut of 10% recently announced for 2015-16, its budget – covering all areas of equality and human rights – will be lower than that of the Disability Rights Commission a decade after it closed for business, without even taking inflation into account.   Along the way the Commission has shed some of the functions which had successfully been deployed by the DRC, including the provision of a public helpline and providing mediation.


The Human Rights Act – and lately European Convention on Human Rights – is now subject to open criticism from senior politicians on left and right, including the present Prime Minister, Justice Secretary and Home Secretary.   The Conservative Party has indicated that it will repeal the Act if it wins an outright majority at the next election and explore withdrawal from the Convention.


As for the UNCRPD itself, it has made some inroads into the law and policy debates in the UK and Europe.  As a monitoring mechanism however it has been seriously hampered by the initial under-resourcing of the UN Committee on the Rights of Persons with Disabilities.  The consequent backlog means that though the UK delivered its initial report on implementation of the CRPD to the Committee in 2011, it has taken until 2015 for the UK’s examination to be timetabled.  At present no organisation is filling this gap in holding government to account for its adherence to the Convention.


2.3          Disability rights, now?


What is the state of disability rights in Britain today, by reference to the standards contained in the UN Convention on the Rights of Persons with Disabilities? What are the big priorities and what prospect is there of addressing them in the years to come?   How can a disability rights agenda negotiate a path between the myths and realities of austerity Britain? Can it finally bridge the gap between civil and political rights and economic and social rights to forge a new comprehensive disability rights agenda?  How receptive is the public to the attitudes of disabled people?  To what degree to disabled people view rights as a means to negotiate improved life outcomes?  What should be the priorities of a new rights agenda and what are its modern ‘theories of change’? What institutional architecture and mechanisms are required to promote and protect disability rights in Britain into the future?  What lessons can be drawn from the experience in other comparable countries, including those undergoing austerity?  These are some of the questions that this project would set out to answer.


It is proposed that in order to achieve the necessary profile and focus a short-life ‘Commission on the future of disability rights’ is established with expert members drawn from different areas of British life (emulating the National Disability Council, the Disability Rights Task Force and the Disability Rights Commission before it) including law, business, economics, public services, media and communications.    The Commission will have a dedicated secretariat team, access to academic support and to resources to commission such work as it deems necessary, such as in relation to public attitudes to disabled people’s rights.   It will actively engage and involve disabled people and other key stakeholders in its work.   Although such a process will be necessarily iterative, the key stages involved are outlined in the methodology below.


  1. 3.       Methodology


The following stages are proposed over a 18 month period:


(a)    Establishment of a Commission


(b)   Identification of priority themes via desk-based analysis, consultation and engagement


(c)    Analysis and consultation regarding government policy, practice and performance in relation to key themes


(d)   Development of recommendations via open process of deliberative debate, consultation and inviting submissions


(e)   Work on public opinion, framing and narrative development


(f)     Publication and launch of final report




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