Wot no disability Commissioner?

A quick post, away from the limited and needlessly heated confines of Twitter, about the question of whether the post of ‘Disability Commissioner’ has or has  not been ‘scrapped’ by the government or Equality and Human Rights Commission following the recent appointment of (Lord) Kevin Shinkwin as a Commissioner.

Firstly, unlike say the Children’s Commissioner, or Information Commissioner there is, nor ever has been, in reality a post of ‘disability Commissioner’ at the EHRC.   The Equality Act 2006 – the law establishing the EHRC – obliges the Secretary of State to appoint Commissioners, at least one of who must be a person who is or has been a disabled person.  This requirement is designed to ensure representation of disabled people on the Board.  There could be more than one person fitting this criteria.  It does not demand that any person or people meeting this criteria are experts in the field of disability rights or that they specialise in disability rights once appointed.  Nor does it confer any exclusive powers to the person or people meeting this criteria with respect to disability issues.   The government fulfils its obligations solely by ensuring this representation on the Board.

Separately, the 2006 Act required the Commission (not the Secretary of State) to appoint a  Disability Committee, the Chair of which and at least half of the members had to be a have been disabled people.  The Act did not require that the Chair was a Commissioner, although in practice its three formal chairs Jane Campbell, Mike Smith and Chris Holmes all were (with Alun Davies and Rachel Perkins – both non-Commissioners – performing brief ‘caretaker roles’ while Commissioner appointments were filled).  This made sense as the Committee enjoyed exclusive statutory decision making powers with respect to some areas of the Commission’s duties and powers as they related to disability, such as decision’s about which legal interventions to pursue in the area of goods, facilities and services.

As a result, an alignment came into being between the government’s statutory obligation to ensure representation of disabled people on the Board of the Commission, the Commission’s obligation to establish a Disability Committee and its ongoing preference to appoint a Commissioner as Chair of the Committee (who had to be or have been a disabled person).  The result was a disabled Commissioner with delegated powers on disability issues through their chairmanship of the Committee, or in shorthand a ‘disability Commissioner.’

Following an independent review in 2014, the Commission took the decision to extend the Disability Committee’s life for two further years, and to wind it down this year.  This in effect brought to an end any statutory delegation of powers regarding disability (and hence to a ‘disability Commissioner’).  While the Commission has powers to establish non statutory Committee’s and to delegate powers to them (e.g. its regulatory committee) it is not doing so on disability.  Instead it plans to establish a ‘Disability Advisory Committee’, the chair of which need not be a Commissioner or enjoy the status of public appointee.

Meanwhile, (Lord) Chris Holmes stepped down as Commissioner – and Chair of the Disability Committee –  late last year.   In order to meet its statutory obligations regarding the Board, the government advertised for a Commissioner who is or had been a disabled person.  As I have already said, in law this obligation concerns only representation – it confers no specific powers, nor creates any unique expectations of any persons that are appointed to fulfil any obligations related to disability specifically.

However, while I have not seen the recruitment pack, a report by John Pring suggests that it implied the person would act as the ‘Disability Commissioner’ and that upon his questioning the Commission and the government about this, it is unclear whether the person appointed – Tory Peer, Kevin Shinkwin – will be assigned this status.  Pring concludes this means that the government has ‘secretly scrapped the post of disability commissioner.’  Upon my pointing out that such a post had never existed and querying why it was advertised as such Pring accused me of  ‘either trying to defend government or EHRC’, a curious accusation as I was in fact defending neither, merely pointing to the legal fact that the government has no obligations or powers to appoint or anoint at disability Commissioner.

So legalities aside, why might there be a reluctance to describe Shinkwin as the ‘Disability Commissioner’ despite a recruitment process that apparently indicated this was the role advertised?

Well, perhaps the EHRC, which has been striving hard to rebuild bridges with the disability community given the distrust caused by having had as ‘disability Commissioner’ a Tory Peer who voted in support of damaging welfare reforms in the House of Lords, preferred another candidate to a Tory Peer who voted in support of damaging welfare reforms in the House of Lords.  And perhaps, given the delay in the appointment, the Commission had been battling behind the scenes to secure its preferred candidate, but on failing to do so realised it has an ace in the pack: to deny the person appointed by government the status of ‘disability Commissioner’ given it is under absolutely no statutory obligation to confer such status and the government has no powers to do so either.   By doing so, it can avoid the appearance of special authority on disability having been conferred to Shinkwin, which would have needlessly undermined trust further still.  That is to say, the least damaging course of action following Shinkwin’s appointment is not to have a dedicated disability Commissioner.  None of which is to say that Skinkwin doesn’t bring valuable insight and experience to the Commission, including on disability.  I’m sure he does and personally believe its extremely valuable to have a plurality of political views and affiliations on the Board.

This,  I can assure you, is idle speculation. I have no inside track.  But if I am right, it suggests to me that Pring is misreading the lack of clarity about a disability Commissioner.   What it – and recent positive signs from the Commission suggest – is that we have a Commission that is prepared to fight for disability rights, not one that is striving to dilute it.

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