AMENDED 18th August 2014
I’m currently working on guidance for National Human Rights Institutions on the rights of persons with disabilities. I’m struggling to explain something I believe to be critically important in understanding disability rights: the unique interplay of civil and political rights with economic and social rights. So this is a ‘testing testing, 123’ kind of blogpost and I invite comments, or should I say ‘help!’
Typically we regard civil and political rights, such as the right to life, to liberty and to a private and family life as of immediate application. This is because – rightly or wrongly – we view these rights as being about restraint – that is, about the State or its agents refraining from acting in a way that violates them. Human rights jurisprudence has begun to develop the notion of ‘positive obligations’ – that is, that the State has a duty to take measures to secure that a persons human rights are respected. Doing so can incur costs, such as police training, the costs of the Courts system, holding inqests or having regard to dignity when carrying out care assessments. Yet unlike economic and social rights – to health, to social protection and an adequate standard of living and so on – we do not in relation to upholding civil and political rights apply the doctrine of ‘progressive realisation’ whereby States only must fulfil them over time to the maximum of their available resources.
For a disabled person requiring support or assistance to eat, clothe him or herself, to go to the toilet, to get out of bed and go out of the house, rights to liberty or to a private and family life have little meaning unless (a) sufficient such support is available and (b) the person can exercise choice and control over how it is provided – where, when and in what manner – such that it facilitates their liberty and their right to private and family life. The very real consequences of not committing resources to supporting these rights is plenary guardianship and institutionalisation at one extreme, through to a general lack of choice and control and isolation from the wider community on the other.
To these ends, Article 19 of the UNCRPD – the right to live independently and to be included in the community requires that:
‘States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:
a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;
c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.’
The Joint Parliamentary Committee on Human Rights in its report on independent living noted that Article 19 ‘gives more specific meaning to the general rights to liberty and security of person and to private and family life in the particular context of disabled people and their living arrangements.’ Yet in order to disabled people to enjoy the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and to not be obliged to live in a particular living arrangement, a sufficient range of in-home, residential and other community support services etc must be available.
So to which doctrine should Article 19 therefore be the object – progressive realisation or immediate realisation? Or does Article 19 give rise to something else altogether? Is this why some have suggested that despite the terms of reference given to the ad hoc Committee drafting the Convention to not go beyond the existing international ‘Bill of Rights’, that Article 19 in effect amounts to a new, distinctive right? The reference to personal assistance bears no relationship to any of the existing economic and social rights for example. But it is perhaps the ultra-indivisibility of rights in Article 19 that marks the most significant departure and by doing so renders the doctrines of immediate or progressive realisation unhelpful.
So far so theoretical. But the answer to this question has very real consequences. In the UK, while legal and administrative steps may still be being taken to accord disabled people more control over the support they receive, austerity measures mean fewer people are being deemed eligible for support and the range of financial and practical support is in fact shrinking. This in turn limits the scope for disabled people to exercise choice over where and with whom they live, and in particular to avoid segregation from the wider community, which in turn impedes rights to liberty and to private and family life as expressed through the concept of independent living. The ongoing insistence of government’s, including the UK’s, to regard economic and social rights as secondary to and disconnected from civil and political rights (or to attack or dismiss the idea of them altogether as this government has done several times) risks massively undermining our ability to advance the civil and political rights of disabled people, contingent as they are on investment in rights-respecting supports (let alone people’s standalone social and economic rights to health, an adequate standard of living, housing, employment and work). Yet the analysis above suggests that – despite requiring the investment of significant public resources – the right to live independently and to be included in the community may not rest upon economic and social rights at all, but rather rely upon a significant expansion of the doctrine of positive obligations. And if that is the case, by what yardstick might one judge whether States are committing enough resources to respecting the right to independent living and conversely when are they in breach?
The final word here goes to Arnardóttir and Quinn (2009):
‘In truth, all persons (whether disabled or not) depend on social supports at least at some point in their lives (especially when young or at the onset of old age) to make freedom and choice a reality. This underlying reality is simply more obvious in the case of persons with disabilities (though not for all of them). If one sought tangible proof of the interconnectedness of both sets of rights [i.e., civil and political, on the one hand, and economic, social and cultural, on the other] then disability is the obvious example. It is plainly not enough to enact anti-discrimination laws to break down arbitrary barriers. It is also necessary to assist people in getting past those barriers. The deeper paradox — one that obtains for all persons — is that personal freedom ultimately relies on social solidarity’
ADDITION 18th AUGUST 2014
Just been reading again the General Comment of the UNCRPD Committee on Article 12 and note this at para 30, which must logically also apply to Article 19:
The right to equality before the law has long been recognized as a civil and political right, with roots in the International Covenant on Civil and Political Rights. Civil and political rights attach at the moment of ratification and States parties are required to take steps to immediately realize those rights. As such, the rights provided for in article 12 apply
at the moment of ratification and are subject to immediate realization. The State obligation, provided for in article 12, paragraph 3, to provide access to support in the exercise of legal capacity is an obligation for the fulfilment of the civil and political right to equal recognition before the law. “Progressive realization” (art. 4, para. 2) does not apply to the provisions of article 12. Upon ratifying the Convention, States parties must immediately begin taking steps towards the realization of the rights provided for in article 12. Those steps must be deliberate, well-planned and include consultation with and meaningful
participation of people with disabilities and their organizations.