At the recent UK General Election the Labour Party made the following commitment:
‘We will build on the previous Labour government’s commitment to people with disabilities in 2009 as signatories to the UN Convention on the Rights of Persons with Disabilities, and incorporate it into UK law.’
When I asked the shadow Minister for Work and Pensions Debbie Abraham MP what this meant on Twitter she replied:
‘It means we take it seriously Neil unlike Tories who UN found to have committed ‘grave…systematic violations ‘ of UN CRPD.’
Pressed further she replied:
‘Ltd on twitter so come along to one of our next Disability Equality Roadshow events so we can discuss.’
I will certainly take Debbie up on her offer as her answers provide no real clues. In the meantime, it’s worth noting that different countries around the world take different approaches to meeting their international treaty commitments. Broadly they fall into one of two categories ‘monist’ or ‘dualist’.
In a pure monist state, on ratification international law is just incorporated and has effect automatically in national or domestic laws. A person is then able to assert international law in domestic courts in the same way they might national law.
In a pure dualist state, for international law to become national law it must first be ‘translated’ into national law. This means old laws have to be repealed or reformed and any new policies or law proposals examined to ensure compliance. Failure to do so amounts to a violation of international law. However, a person cannot assert the international law in domestic courts (though Courts can refer to international law for guidance as to the meaning of rights).
With respect to international human rights law, with the partial exemption of the European Convention on Human Rights ‘translated’ into UK law by the Human Rights Act, the UK has adopted the dualist approach. Hence the UN Convention on the Rights of Persons with Disabilities is not part of UK law and compliance is achieved via ensuring consistency between domestic law and policy and the Convention. The process involved in such translation can be seen in debate surrounding the development of the Care Act 2014 or in the recent report by the Law Commission on reforming Deprivation of Liberty Safeguards where the CRPD’s meaning and significance is analysed.
Hence Labour’s commitment to ‘incorporate’ the Convention may mean no more than committing to do what it accepted to do when ratifying the Convention in 2009: to be rigorous in ensuring compliance of existing and future law and policy. Or in Abraham’s words ‘to take it seriously.’ That would of course be a very welcome thing.
But Labour could signal its seriousness by going a step further and introducing a duty of ‘due regard’ on Ministers and public bodies, similar to ‘The ‘Rights of Children and Young Persons (Wales) Measure’ 2011 which placed a duty on all Welsh Ministers to have due regard to the substantive rights and obligations within the UN Convention on the Rights of the Child and its optional protocols. The Joint Parliamentary Committee on Human Rights has recommended a similar approach with respect to the UK’s economic, social and cultural rights obligations.
Or Labour could be truly radical and depart from the UK’s ‘dualist’ approach and to adopt a ‘monist’ one, with the UNCRPD enjoying equal status to our domestic law. One would assume if it did so, that it would at the same take this approach with respect of all international law to which the UK was a party. This would enable a disabled person in the UK to, for example, assert their right to an adequate standard of living under Article 28 of the CRPD in a UK Court, which may subsequently find prior welfare reform legislation, or a government budget, or a decision of a DWP assessor, to have been non compliant.
My prediction would be that Labour is promising just to meet existing commitments. I think the third option – monism – is way off the agenda. The bold, fresh, but pragmatic move would be the second option – strengthening the domestic legal obligations of Ministers and public bodies to ensure compliance.
I look forward to hearing more.