Last year disability rights campaigners in the USA marked the 25th Anniversary of the Americans with Disabilities Act with nationwide celebrations. They did so not to sweep the very many inequalities still facing disabled Americans under the carpet. Rather, it was a chance to remind disabled people and the wider community of what the passing of the ADA symbolised and to refocus attention and energy on the campaign for full civil rights once again.
Contrast that with the 20th anniversary of the Disability Discrimination Act in the UK. Mike Oliver’s opinion piece for Disability and Society is essentially the elongated whine he gave at Scope’s event last year to mark 20 years of the Disability Discrimination Act. In Oliver’s view the DDA was not the legislation disabled people campaigned for, disability charities and ‘careerist individuals’ wanted something else and won and everything since has been a disaster. Oh, and it’s only going to get worse.
In his article, Oliver sums up the situation as follows:
‘This (whether to support the government’s Disability Discrimination Bill or continue to pursue preferred alternatives) effectively split the disability lobby. Those organisations like the BCODP and others controlled by disabled people wanted nothing to do with it and argued that the campaign for comprehensive, fully enforceable civil rights legislation should go on. The disability charities, on the other hand, argued that this was the best on offer for at least a generation and that they should be fully involved in order to make the best of it. Some disability activists also took the latter course and became members of the Disability Task Force, which soon became the Disability Rights Commission whose responsibility was to monitor and evaluate the Act.
The Disability Rights Commission also had an enforcement function and while some cases did come to court, on the whole it saw its job as trying to educate and persuade people and institutions not to discriminate. The New Labour Government when it came to power shortly afterwards showed no more inclination to enforce the law than the previous government had, and eventually the Disability Discrimination Act became subsumed under broader equalities legislation and the Disability Rights Commission was integrated into the Equalities and Human Rights Commission.’
Oliver concludes his piece saying:
‘My version of this history therefore suggests that, far from being the landmark legislation which many people now claim, it was little more than a betrayal of disabled peoples’ struggle to be fully included in society and any reading of disability history since the millennium supports this view and it is clear that discrimination against disabled people is still alive and well in twenty-first-century Britain.’
In researching this post I came across an Institute for Public Policy (IPPR) report ‘Equal Rights for Disabled People – The case for a new law’ by Ian Bynoe, Mike Oliver and Colin Barnes written in the early 1990s. The IPPR thank ‘the Spastics Society, the Royal National Institute for the Blind and MIND, whose generosity has enabled us to publish this book.’ Barnes and Oliver begin by stating that ‘Disabled people have identified institutional discrimination as the main problem, and anti-discrimination legislation as the most promising way of tackling it’ and make a powerful case for anti discrimination law while Ian Bynoe (then Mind’s legal director) explores what it might look like.
I have separately been told how the Spastics Society (now Scope) funded transport to enable activists to attend rallies, including direct action, while campaigning for the Bill. The Rights Now campaign spanned organisations of and for in a manner that committed the considerable resources of the disability charities to the political campaigning of people like Oliver and Barnes. While there was then and remains a vital distinction between as Oliver and Barnes put it ‘the philanthropic and liberationist elements of the disability lobby’ all had supported the private members Bills sponsored by Harry Barnes and Roger Berry, not least because they had been involved in writing them.
But there was clearly a difference of view about tactics when it came to whether or not to support the government’s Disability Discrimination Bill. While some believed it best to reject the Bill out of hand, others came to the conclusion that it offered a stepping-stone.
It is of course true that the Disability Discrimination Act 1995 fell way short of what disability campaigners had been striving for. Huge areas of life like education and transport were excluded. The employment provisions excluded employers of 20 or fewer staff. Some discrimination could be justified. The Act included what many regarded as a wholly inappropriate definition of disability. There was no enforcement body of equivalence to the Commission for Racial Equality and Equal Opportunities Commission. Why celebrate that? Well because it did mark the beginning, not the end.
Within a year of the DDA coming into force, New Labour won its landslide victory of 1997 and established the Disability Rights Taskforce to advise government on the legislative reform necessary to accord ‘full civil rights’ to disabled people. Between 1997 and 2005 the DDA was extended to provide protection to people with progressive conditions and past conditions, to cover auxiliary aids and services such as BSL and accessible information in goods and services, to cover schools, further and higher education, to all employers, to address the physical features of goods and services, to cover housing, transport and public functions. The Disability Discrimination Act 2005 included a positive duty on public bodies to promote disability equality. The Disability Rights Commission opened its doors in 2000.
By the end of this period almost all the features of the Barnes/Berry Bill had been enacted or improved on. Little of this progress would have happened without the Taskforce or the DRC, which is why Oliver’s criticism that ‘Some disability activists also took the latter course and became members of the Disability Task Force, which soon became the Disability Rights Commission whose responsibility was to monitor and evaluate the Act’ is so wrong-headed. Perhaps the most influential figure of all throughout this period was the late Caroline Gooding, both a prominent figure in disabled people’s struggle for civil rights and a senior Director at the DRC. Is Oliver really suggesting that Caroline ‘betrayed’ disabled people by taking this course?
The Equality and Human Rights Commission absorbed the responsibilities of the DRC in 2007, with additional powers to promote human rights and good relations. The Equality Act 2010 embodied all the features of the Disability Discrimination Act, while adding some additional provisions such as protection from discrimination for those associated with a disabled person or perceived to be disabled, prohibiting the use of pre employment health questionnaires and extending the duty to provide auxiliary aids and services to schools.
The period saw other significant developments in disability rights. Independent living took a leap forward with the Direct Payments Act 1996. The Human Rights Act 1998 incorporated the European Convention on Human Rights into UK law (and the UK will not leave the Convention by leaving the European Union as Oliver incorrectly asserts on his article). Disability hate crime was recognized in s146 of the Criminal Justice Act 2003. There were generally positive developments in relation to legal capacity in the Mental Capacity Act 2005. The Prime Ministers Strategy Unit report on the Life Chances of Disabled People (2005) followed by the creation of the Office for Disability Issues, the Equality 2025 strategy and Independent Living Strategy all took their lead from this focus on disability equality. The European Union adopted the Equal Treatment Directive prohibiting discrimination in the field of employment. In 2009 the UK confidently ratified the United Nations Convention on the Rights of Persons with Disabilities with cross Party support – a human rights instrument far broader in scope than our domestic equality law and which codifies the right to independent living.
Are we as a result of all these developments where we ultimately want to be? No, of course not. Is discrimination against disabled people still alive and well in twenty-first-century Britain? Yes it is. Do great inequalities remain? Depressingly so. Is this because there was a ‘split’ between activists in 1994/5? No, because it did not prevent the ambition of Mike Oliver, Colin Barnes and others for comprehensive legislation to outlaw discrimination against disabled people from ultimately being realized and in a relatively short space of time.
So why are we not where people, including Oliver and Barnes, imagined we would be as a consequence of having such law in place?
I think three issues stand out: a growing implementation gap, a failure to develop broader strategies for social change, and that disability rights has not radically reshaped attitudes towards of public policy regarding the financial and practical support some require to participate fully.
On the growing implementation gap, the recent House of Lords report on the impact of the Equality Act on disabled people deals with this well. Since the DRC closed, effort put into promotion and enforcement of disability discrimination law and disability rights more widely has declined considerably. While the recent profile accorded to disability rights by the new Chair of the EHRC is welcome, he presides over an organization spanning all grounds of equality plus human rights that in 2016 enjoys fewer resources than the DRC had in its last full year of operation 2005-6. The introduction of employment tribunal fees saw a 45% drop in disability discrimination cases in one year. There are no alternative dispute mechanisms regarding complaints of discrimination by providers of goods and services. As the saying goes ‘rights without remedy are no rights at all. These issues should be priority advocacy objectives for disability campaigners.
The government’s overall response to the House of Lords report is to air its preference for gentle persuasion over enforcement, despite the evidence of its effectiveness being next to non-existent. Mike is of course correct to identify the lack of enforcement as a problem, and so the promise by the chair of the EHRC for a ‘more muscular’ approach has to be welcomed. We should be striving for ‘more muscular’ approaches in other arenas too, such as the enforcement of building regulations and planning law, transport accessibility and the prosecution of disability hate crime.
But enforcement alone is never enough and in some instances is counter-productive. The law provides a floor. Sometimes we have to use it to ensure that basic minimum standards of behavior and action are upheld. Doing so can send powerful signals to others. Standards are set. But the law is only one lever for social change and relying on it alone will not achieve the deep institutional and social change that eludes us.
For example, the disability employment gap remains a stubborn 30% in the UK (in the USA it is 46.5%). Is this simply a matter of more enforcement of the Equality Act? Partly perhaps but disabled people’s labour market disadvantage stems from a complex web of interacting factors. We can only make real progress by taking on the factors that are genuinely shaping opportunity. This does not mean abandoning the notion of ‘barrier removal’ – it just requires clarity about what these barriers actually are and identifying the most effective ways to remove them. It must also not be assumed that legal enforcement of itself affects institutional change. As the equality champion Bob Hepple pointed out, the law is just one sub-system in society, it does not sit ‘above’ all else, and in order for it to affect wider social change it has to interact with those other sub-systems such as culture, attitudes, practices and so on. Institutions such as the DRC/EHRC have a critical role to play in providing that translation and ensuring that legal judgments lead to real change on the ground.
But change is also being led by those other ‘sub-systems’. Take technology for example: yesterday while waiting at traffic lights on Tower Bridge Road I noticed a young woman using Facetime on her Iphone to conduct an animated conversation using British Sign Language with the person at the other end. ICT has radically transformed the lives of people with sensory impairments, arguably more than anti discrimination law ever could. The arts, media, sport, education and so on can all provide as if not often more powerful levers for change than the law and must be effectively harnessed to those ends.
The disability movement has adopted many methods of campaigning for change, showing itself to be highly effective at self-organization and mobilisation, parliamentary lobbying, influencing public officials, innovative practice, civil disobedience and strategic litigation. It has sprung an entirely new strand of academic research and thinking with disability studies departments around the world. One area where I believe it has been weak is in strategic communications to reframe discourse and turn around public attitudes. Paternalistic notions of disability as tragedy and disabled people as vulnerable persist, sometimes in the communications of disability activists themselves. We are unlikely to see real progress unless we begin tackling discourse and attitudes head on, using framing methods such as those developed by the Frameworks Institute for example.
Last but not least, in the IPPR report Barnes and Oliver argue that anti discrimination law ‘can force the pace of change towards forms of welfare provision which are no longer discriminatory, but instead are truly enabling’
‘while it is true that government is required to comply with equality law (and the European Convention on Human Rights) when making new laws, it has never felt to me that the fundamental principles of disability rights – that people have a right to independent living, to inclusion and to participate fully in all spheres of life without discrimination – have been the starting point when it comes to designing policy and legislation regarding the financial or practical supports that some disabled people require to make those rights a lived reality. In fact, there is evidence that these principles have been rejected outright.’
The DDA/Equality Act (and more recently the UNCRPD) and the principles underpinning them have impacted on wider public policy, but ‘welfare provision’ is clearly far from being ‘truly enabling.’ This continued detachment of ‘welfare provision’ from disability rights has not only undermined efforts to reform policy and practice in support of independent living and equality, it continues to leave such provision extremely exposed to austerity cuts.
Advocates in the USA have evidently reached the same conclusion, but rather than bemoan the ADA as having failed they have decided to try do something about it. As the preamble to the Disability Integration Act, currently winding its way through the US Senate and Congress says:
‘The right to live in the community is necessary for the exercise of the civil rights that the ADA was intended to secure for all individuals with disabilities. The lack of adequate community-based services and supports has imperiled the civil rights of all individuals with disabilities, and has undermined the very promise of the ADA. It is, therefore, necessary to recognize in statute a robust and fully articulated right to community living.’
The DIA would in effect subordinate ‘welfare provision’ to the goals of the Americans with Disabilities Act. Hence any failure to provide support, or providing support in a manner that does not accord with the principles of non discrimination and independent living would clearly be regarded as a violation of civil rights. The Care Act does not achieve this and we should continue to strive for freestanding legislation to promote independent living.
In conclusion, the solution that Oliver and Barnes put forward has mostly been implemented, albeit with the shortcomings in implementation I outline above. But even without those shortcomings it seems unlikely it would have alone provided the answer that they hoped for.
Those who in 1994/5 chose not to engage with the government over the Disability Discrimination Act have been proved right. Far from it: The DDA – from the first Act in 1995 to the final in 2005 and its incorporation into the Equality Act is worth celebrating both because it has changed countless people’s lives for the better and because it represents an enormous achievement by disabled people and their allies. Characterising that achievement as failure dismisses the huge power disabled people had and have to shape events. Recognising its shortcomings, reviving and redirecting that power to address them is what is required today if we are to ‘make hope possible, rather than despair convincing.’