How can UK organisations make the most of the opportunity presented by the UK’s examination by the UN Committee on the Rights of Persons with Disabilities?
Keep all eyes on the prize
The primary goal of this process for disability rights advocates in the UK is to secure a range of ‘concluding observations’ (findings and recommendations) which command the attention of and action by future government’s (and other actors) to advance disabled people’s rights.
Using it solely to protest at the current government is a wasted opportunity – think broad, and think long term
There is generally little value in seeking only for a Committee to censure an existing government and this is especially the case with the upcoming examination under the UNCRPD as a general election will follow within weeks which could lead to a change in administration. The examination is as much an opportunity to win support for a future programme as it is one of securing criticism of past or current policy. Hence it’s important to be thinking about influencing the agenda of an incoming, different government and not by stealth allowing it off the hook by concentrating all attention on the sins of the current administration. Moreover, while government’s come and go, problems have a habit of traversing different government’s and of proving persistent over time with policy very often changing gradually between and across administrations rather than radically – for example, Employment and Support Allowance and the Work Capability Assessment built on previous policy, were designed by the last Labour Government, taken forward by the current Coalition Government and are unlikely to be replaced by the next government, whatever Party or Party’s win the next election. Meanwhile, levels of unemployment and poverty among disabled people have not been improved by these policies, which means that the policies of all Party’s are failing. The examination is an opportunity to level pressure on all Party’s to up their game and a lost opportunity if used only to protest about the existing administration.
The Committee will not give equal weight and time to each and every issue raised by those submitting evidence. In September 2014 the Committee will choose to focus on a number of issues, perhaps breaking them down in terms of grave and systematic human rights abuses, areas requiring small tweaks and some long term strategic aims. These are called ‘the list of issues’ and the Committee will issue a list of questions the UK Government and invite other interested parties to submit evidence related to these questions. It will help the Committee if those submitting evidence have established consensus about what their priorities are. It will not help the Committee if they have to second guess these and it could result in things being overlooked which UK disabled people’s organisations regard as of vital importance.
In deciding these key factors are:
- Gravity – how serious is the issue you are raising for the rights of disabled people? This may mean relatively few people are affected but that the risks are grave – an example would be the deaths of people with learning disabilites in ‘assessment and treatment units’
- Scale – how many are affected? For example, the scale of poverty and unemployment and the risks posed by welfare reform and austerity or the numbers of disabled people being deprived of their liberty.
- Direction of travel/persistence – is the issue getting better or worse and at what pace? For example, progress on inclusive education is stalling and support for inclusion shows signs of weakening, the employment rates of some groups including people with a learning disability or those with mental health problems have been persistently low for many years with little sign of concerted effort to address them.
- Policy or legislative compliance: are areas of UK law so obviously at odds with or insufficient to meet the requirements of the Convention? For example, Northern Ireland’s equality law has not been reformed since the Malcolm Judgement in the House of Lords, the recent House of Lords inquiry into deprivation of liberty has concluded that Deprivation of Liberty Safeguards require reform, is the codification via the Care Bill of state provision of care and support for those deemed to have critical and substantial needs in conformity with the duty to progressively realise the right to independent living?
Disabled people’s organisations should play a leading role in the examination process and the more the Committee can feel confident that disabled people are speaking with one voice the better. This does not mean all DPO’s must act in concert with one another, but when dealing with different groupings the Committee needs to know who it is dealing with, who those organisations represent and who they do not. Further, the more groupings there are covering the same ground the more complex a task is faced by the Committee in determining who it should listen to and which evidence it should pay attention to. If organisations are for whatever reasons struggling to work together, it is in their interests to be as open and transparent as possible about what they are or are not planning to cover and say so that others can at least have the opportunity to fill any gaps.
Remember who and what you’re dealing with
Finally it is helpful to recall that – though disabled people’s organisations played a central role in drafting the Convention, have a key role to play in its implementation, and can expect a key role in the examination process, the UN is a body of States, not civil society. States give their consent to be bound by international human rights treaties by ratifying them. The primary means by which they are held account is through examinations by Committee’s, the members of which are nominated by States. These Committee’s can sometimes be challenging and radical, but they cannot act beyond their mandate – to assess compliance by States with what States have agreed voluntarily to comply with. The credibility of the committees, and the willingness of States to pay attention to them rests heavily upon the credibility of the evidence on which the Committee relies to carry out its examination. Furthermore the UN Committee is examining the action and performance of States possessing wildly different political traditions, cultures, economic policies and at vastly different stages of progress around the world. It must examine the performance of States objectively based on accurate evidence and will do so proportionately. Although the UN High Commissioner for Human Rights (and the Council of Europe Commissioner for Human Rights) have raised concern about the impact of the policy of austerity on human rights, it is not within the gift of the Committee to critique or criticise the ideology of democratically elected governments, only the impact of their policies on the enjoyment of human rights.
Hence, shadow reports which are based upon weak or anecdotal evidence, which do not ground their analysis in the Convention principles and articles or which are dogmatic in nature are unlikely to find currency with the Committee, just as such evidence submitted to a Parliamentary Inquiry in the UK would not do so.
Disabled people and their organisations have been accorded the right to participate in the monitoring process by Article 33.3 of the Convention. They have also been given the duty to do so, and to do so as effectively as possible. By doing so they can help ensure a potent and influential first examination by the UN Disability Committee which should help set the disability rights agenda for years to come.