Advancing disability rights under a Conservative government – bring on the negotiators

It’s actually quite incredible to see positive, rights-focused mental health proposals be the first policy announcement of the Conservative Party at a general election. It shows just how far our culture has changed with respect to mental health, and it’s testimony to campaigns such as Time to Change and the work of people like Paul Farmer that political parties feel both motivated and permitted to advocate such change. It’s not so long ago that mental health policy was primarily about public safety and driven by fear.

Two lessons emerge out of this for me. The first is that some aspects of disability rights chime strongly with a Conservative worldview and are deemed to offer electoral advantage. Here they are proposing to reduce detention, non-consensual treatment and to strengthen protection from discrimination by amending the definition of disability in the Equality Act.   All of these issues were raised in the UNCRPD Committee’s list of issues for the UK. If carried though and carried through well they will mark a step forward for disabled peoples human rights.   The Party also announced a further 10000 specialist mental health nurses by 2020. While the latter involves a commitment of public money (albeit not necessarily ‘new’ money), the overall thrust of the policies is strongly in line with Conservative values of individual liberty and opportunity – of keeping an overreaching State in check and focusing resources on supporting individual agency and enterprise.   A look back to the last time the Conservatives held a majority in Parliament reveals progressive disability policies also rooted in these values: the Direct Payments Act, the Disability Discrimination Act and the introduction of Disability Living Allowance.   It interests me today that, while the cut to the Employment and Support Allowance Work Related Activity Premium passed largely unopposed by Tories in Parliament, many expressed deep opposition to further cuts to the Personal Independence Payment.   Of course, PIP was and is designed to constrain spending on disability benefits, but it seems that Tories intuit it in a different way to out of work benefits and those intuitions can be harnessed to positive effect (while perhaps having to accept that there will be little if any out of work disability benefits by the mid 2020s).   If we are to achieve further progress, understanding these intuitions and finding ways to appeal to them through strategic prioritization and framing will be key. Policy asks focused on and framed as extending freedom, nurturing agency and supporting people to get on in life are much more likely to find currency than those framed simply as being about the amount of social security money in people’s pockets.   While opportunities to secure higher spending may be few and far between, opportunities to secure smarter spending, in line with these values could help for example in resisting the forces of re-institutionalisation at play among local councils and CCGs.

There are also significant signs that May is shifting her party away from the economic liberalism that has dominated politics for the past 30 years – and indeed one can regard the EU referendum vote and support for Brexit as endorsing such a shift. The policy announcement on capping energy prices is a concrete sign of intent. Will this see the deregulatory zeal of those on the right of her party kept at bay? Does this create a space for a renewed discussion about tackling disability discrimination in the labour market, led perhaps by the scrapping of employment tribunal fees? Will May’s government be prepared to wield both carrot and stick when it comes to employers?  How about service providers?  Might we anticipate stronger action on accessible goods, facilities and services?  What about the proposals of Scope’s Extra Costs Commission that focus on market regulation to reduce the disability related costs of living?

Of course the Tories’ agenda on disability will be seriously wanting in many respects, particularly where it comes to spending on financial and practical support.   This has and continues to be the historic fault-line when it comes to securing progress on disability rights. Labour may be the party of the NHS and more generous State support for poor people, but it is also the party of community treatment orders, of putting public sector workers above those relying on services and of often being deeply suspicious of measures to accord people more control over services and support, such as via personal health budgets, all of which undermine disabled people’s right to autonomy.

All human rights are ‘interdependent and interrelated’ in theory, but in practice different political systems and parties always tend to emphasise one class of rights above another: civil and political rights or economic and social rights. As I have said before, this creates a ‘Hobson’s choice’ for disability rights which makes little sense unless one abandons these distinctions altogether. The right to independent living for example relies on meaningful freedom to make choices about where and with whom to live on an equal basis with others.   Legal safeguards and administrative mechanisms such as direct payments may accord a degree of control, but if a person has insufficient resources or options from which to choose the right is rendered fairly meaningless.   The same point has been made about the Conservative proposals on mental health – how can we expect to reduce detention when support to live in the community has been so eviscerated?

Clearly disability rights campaigners have to continue to defend and pursue more generous and more effective investment of public resources and to expose the impact of disinvestment in disabled people’s opportunities and wellbeing. But they also need to get much smarter about the way they do so. The lesson of the announcement on mental health policy is to avoid the trap of wholesale political opposition, as has so often been the case among some of the noisier members of the new school of disability activism since 2010 (see DPAC’s current election campaign against ‘Tory vermin’ for example).   There will always be a role for protesting outside the tent. But there is an equally valid and important role for the ‘negotiators’ who find opportunities to work respectfully with government and political parties of all sides to secure progress, while also being clear about red lines.

With the likelihood of at least a decade of Conservative government in front of us, the negotiators are needed more than ever before.

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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.

How to talk about disability & human rights

Thanks to Catherine Townsend from Wellspring Advisers for allowing me to share this fascinating and incredibly useful report by the Frameworks Institute on how to talk about disability and human rights.   The report is the first stage in a longer exercise in finding more effective ways to communicate about disability in more persuasive ways.       Perhaps the most challenging question posed in the report is whether the language of rights is particularly helpful at all where disability is concerned….

In summary, the report found that disability organisations (those working in the international sphere) typically:

  • Blitzed on unframed facts and numbers which only experts understand
  • Described the situation of disabled people without explanation
  • Concentrated on problems while offering few if any solutions, removing any sense that problems could be fixed
  • Relied on crisis stories, which also tends to overwhelm (or excuse) any sense that problems can be addressed
  • Employ vivid stories, which counterproductively locate problems at the individual rather than systemic level

I expect we can all recognise these fault-lines in communications around disability and other areas.   Frameworks recommend that effective communication demands:

  • Using thematic stories, not individual stories, to foreground the systemic factors shaping outcomes
  • Leading with values, not facts/information
  • Combining urgency with efficacy – people must feel a problem can be solved.  Set out the solution
  • Avoiding crisis language
  • Developing and deploying examples that emphasise solutions, not problems
  • Connecting outcomes to society as a whole – explain how the positive or negative outcomes facing disabled people affect everyone
  • Contextualising numbers – don’t expect them to speak for themselves
  • Avoiding myth busting – it tends to affirm the myths, not overcome them.

Fully adopting the lessons herein can be deeply challenging, but the rewards could be enormous.

Care crisis, what crisis? £10 a week should do it….

So Labour’s burst of policy announcement’s over Easter included its plan to increase Carers Allowance by 17% (or £10 per week), at a cost of £538m, to be funded by reversing George Osborne’s cut to inheritance tax. It’s a good bit of politics, aimed at cementing Labour’s claim to be the true party of fairness. Very Milibandian even….

I’ve no doubt many families would welcome a 17% increase in their benefit income. The income penalty associated with disability – whether born by disabled people or those who support them – is high and it is right that this is recognized via redistributive measures.

At the same time, such policies, absent of any wider plans for social care, further consolidate the normalization of unpaid care-giving, while negating to offer anything to address it.   Listen to the rhetoric from Corbyn surrounding the announcement.

“Britain’s social care crisis was made in Downing Street by cutting £4.6bn from council care budgets. Millions of unpaid carers have been forced to fill the gap and put under even greater pressure as a result.

“We believe these unsung, unpaid heroes not only deserve our praise and recognition – they deserve better financial support. That’s why Labour is convinced it’s both morally and economically right to give the carer’s allowance a boost of £10 a week.”

First, the ‘social care crisis’ has been made worse by austerity – significantly worse. But its cause is a result of decades of political failure, including 1997-2010.   Labour offers nothing here to address its own past failings or in terms of future vision. Increasing Carers Allowance by £10 per week is the cheap and easy route politically, while leaving millions of people without the support they urgently need.

The reality is unpaid care-givers are over-sung and over-heroised by politicians in order to create a smokescreen. Only politicians benefit. The Association of Directors of Social Services estimates that a third fewer older people receive any statutory support than a decade ago. Who picks up the slack? Are they willing heroes?

We need a revolution in the area of adult care and support, one with equivalent transformational political force as that which has taken place in relation to childcare over the past 20 years. Care and support needs to be recognized as part of the public infrastructure, linking together goals of health and wellbeing, increasing employment, promoting good family life and stronger communities.   That is, like childcare, it needs to be viewed not as a cost, but as an investment. Until then the crisis will not be averted, it will just continue to be ignored.

 

 

 

 

 

Summary of the UN Committee on the Rights of Persons with Disabilities ‘list of issues’ for the UK

On Tuesday 4 April 2017 the UN Committee on the Rights of Persons with Disabilities published its ‘list of issues’ for the UK. This followed a meeting with DPOs and equality and human rights bodies in Geneva in March to discuss the evidence that they submitted to the Committee concerning the state of UK disability rights.

The ‘list of issues’ sets out the areas where the Committee believes there may be shortcomings in the UK’s action to implement its obligations arising from the question and takes the form of a number of questions to the government(s) of the UK, which it is asked to answer before the full examination which will take place at the end of August. DPO’s, wider civil society and the equality and human rights commissions are also all invited to respond, most likely by sometime in June (date to be confirmed). The Department for Work and Pensions has said that it will consult on its own response during May

Below is a summary of the headline issues. The Committee has asked the UK:

  • To set out how policy on disability is based on a human rights approach

  • About the mechanisms for coordinating implementation of the Convention across national, devolved and local government
  • In particular it inquires about the status and outcomes resulting from ‘Fulfilling Potential’, the UK government’s disability strategy
  • About measures taken to protect the right to life and to address inequalities in life expectancy
  • About gaps in the Equality Act 2010 and in relation to parts of the Act not yet implemented concerning reasonable adjustments
  • About ‘Measures to prevent discrimination on the basis of potential impairment as regards pregnancy termination
  • How intersectional discrimination is being addressed and in particular about steps to tackle violence against disabled women
  • 
About action to address high levels of poverty among families with disabled children
  • How disabled children and their families are involved in decision-making about their support
  • About steps to tackle disability related harassment and bullying of disabled children in schools
  • How the UK is tackling negative attitudes, in particular towards people with dementia or learning disabilities

  • What steps are being taken to implement, coordinate, monitor and sanction in relation to advancing accessibility
  • What steps are being taken to repeal discriminatory legal capacity laws and to provide access to supported decision-making
  • For evidence regarding the impact of legal aid reforms and employment tribunal fees on disabled people’s access to justice
  • What training has been provided to the judiciary regarding the rights of persons with disabilities
  • How measures concerning deprivation of liberty are rooted in the principle of supported decision making
  • About steps taken to eliminate involuntary detention of disabled people in hospitals, institutions and residential homes on the basis of disability
  • About steps to eliminate the use of restraint in all settings
  • About the scope and efficacy of the governments strategy and action to eliminate disability hate crime

  • To identify the legal protection of the right to independent living and the means by which disabled people can enforce it
  • About sufficiency of budget allocation to ensure realisation of the right to live independently and to be included in the community
  • ‘How the State party calculate the costs of independent living vis-à-vis institutionalization of persons with disabilities’
  • About the legal mechanisms to ensure the availability of support based on choice, control and inclusion

  • About the availability and funding of sign language interpretation

  • For data on numbers in mainstream or segregated education and for info on measures to promote inclusive education
  • About measures to mitigate any negative impact on  access to education to young persons with disabilities in particular from low income households vis-à-vis the reduction in the Disabled Students’ Allowance (DSA) in England;
  • How health inequalities are monitored & eliminated
  • 
What mechanisms exist to address the suicide rate among disabled people
  • About measures to eliminate disability poverty and for evidence of outcomes of any strategies to do so
  • How government monitors impact on the right to an adequate standard of living of policies and programmes, including cumulative impact
  • How the government ensures the Work Capability Assesment is individualised and based on the social not medical model of disability
  • About steps to ensure equal access to voting in elections
  • For updated information on the coordinating mechanism (the Office for Disability Issues) and the involvement of disabled people


The list is a good outcome for all who have been contributing to the examination and helpfully frames the chief challenges facing disability rights in the UK.  This will provide a benchmark for future examinations, irrespective of which party or parties form the governments of the UK.

The chief task now is to secure some sharp, actionable findings and recommendations in the Committee’s ‘concluding observations’ that can underpin advocacy efforts in the months and years ahead, and in particular to ensure that they speak to the ever more devolved context of the UK.

It always seems impossible until it’s done

Yesterday afternoon the Equality and Human Rights Commission published a detailed report highlighting major equality gaps facing disabled people in Britain today.  The report echoes and amplifies many of the issues raises in the ‘alternative reports’ recently sent by the Commission and civil society organisations to the UN Committee on the Rights of Persons with Disabilities.

Unsurprisingly, pinpointing as it does policy and institutional failure, it makes for depressing reading.  As Baroness Jane Campbell recently opined in the Guardian, in too many areas progress has stalled or we are going backwards.  The promise of freedom, independence and opportunity that motored a rapid period of change in disability policy, law and practice from the early 1990s feels to have hit a wall following the financial crash of 2008, the austerity measures and massive political upheavals that have followed.

Britain and the wider world today and in the years to come is a world away from that in which these major achievements took hold.  The past will not return.  We have no choice but to think differently.  Yet in finding a way forward we need to learn from past mistakes without disinheriting those achievements.   And in arguing the case for inclusion, we need to avoid the trap of communicating only the problems, absent of any account of the many major steps forward of the past few decades.

Many people classed as disabled under the Equality Act or UNCRPD – the majority even – are doing well and far better than their predecessors.  They are living, learning and working alongside non-disabled people, are healthier and wealthier,  leading lives they wish to lead, contributing socially and economically and so on: a result both of social progress generally and of specific measures regarding disability rights.  In many areas things did improve and marked progress was made.  This is not a story of abject failure, or people having dreamt impossible dreams.

Yes, ‘inspiration porn’ of the sort peddled by Disability Confident must be avoided, but equally corrosive is the ‘desperation porn’ that can make problems seem inevitable and insurmountable and which can leave people feeling hopeless and despondent.   We have to tell a positive story of the world as it can be to convey the unfairness and waste of the world as it presently is for too many people.   We must convey solutions and possibilities  in line with the UNCRPD’s requirement to ‘promote awareness of the capabilities and contributions of persons with disabilities.’   We should be concerned about the most disadvantaged but not in a way that excuses government from attending to the lives of disabled people in the round within a vision of equal, shared citizenship.

Only high expectations shine a light on injustice.   As Nelson Mandela said, ‘it always seems impossible until its done.’

 

 

 

 

 

 

 

 

 

 

 

 

 

Why enhancing, not diminishing the value accorded to people with learning disabilities must be our starting point

Unemployment amongst people with learning disabilities is far from inevitable.

In the State of Vermont USA, almost 40 per cent of adults with learning disabilities are in employment, paid at least the minimum wage, in the open labour market.   The backstory to this success involves the state closing down its sheltered workshops, where people were paid below the minimum wage, and redirecting the savings and other resources towards support to participate in the community, via direct payments, placing people with learning disabilities and their advocates in the driving seat, to spend on employment, training and other community support.  The minimum wage has proved no impediment to significantly increasing employment opportunities for people with learning disabilities.   Arguably it is central to this story of success, for it signals the equal worth attached to people with learning disabilities, without which real inclusion cannot hope to prosper.

In Britain, fewer than 2 in 10 adults with a learning disability are in paid employment. Among people receiving long term support from their council the figure is an appalling 5.8%.  There is zero evidence that this is a consequence of the national minimum wage, or its recent increase.   There is plenty of evidence that it is a product of low expectations, barriers experienced during common recruitment practices and a lack of often basic and cost free workplace adjustments. More appallingly, there is also evidence that these factors can be overcome through effective, personalised employment support of a sort that both local councils and the DWP continue to fail to invest in.  The recent Work, Health and Disability Green Paper holds little promise.

Of course the size of the learning disability employment gap, coupled with chronic under-investment in effective support has not stalled benefits reform, with ever increasing numbers of people with learning disabilities forced to survive on incomes that the European Committee on Social Rights has described as ‘manifestly inadequate’, while subject to ever more draconian, yet entirely unproductive conditionality and sanctions.   This is a system that robs people of agency and hope; where despondency sets in and becomes ever more difficult to escape.

I sense that the challenge of living on benefits, or for that matter on an income below the national minimum wage, was not front of mind when Rosa Monkton and Libby Purves wrote their respective articles. In response to criticism on Twitter Purves replied:

‘The problem you furious people have is thinking “worth” only means money. ‪@MoncktonR is talking of lives, happiness, reality.’

Of course it’s so much easier to say ‘worth’ doesn’t only mean money when your reality is one where you rarely if ever worry about having it.  Money might not bring happliness, but not having enough money to eat or pay the bills, let alone live any sort of life, certainly has a habit of getting in the way. Most people’s reality is day-to-day survival.   Lives, happiness and reality’ are ‘free to those who can afford it….very expensive to those who can’t.’*

One senses Monkton and Purves’ reality is somewhat removed from the majority. They argue that people with ‘serious’ learning disabilities need not be paid the minimum wage because ‘Most people involved, will be living with parents or in sheltered communities and have benefits help.’ That is to say, in their view, most people already lead a comfortable life, with all the money and support that need. Nothwithstanding the huge inaccuracy of this statement, it also shows utter disregard for people’s desire for financial independence, their own home, social status, a relationship and family of their own, a job that rewards them fairly….for, err, ‘lives, happiness…’  But then, the fact that Purves prays in aid the views on disabled peoples rights of Tory MP Philip Davies, presently to be found filibustering legislation to improve protection for women from domestic violence, reveals how devoid her outlook is of any commitment to equality and inclusion for people with learning disabilities.  

Monckton and Purves argue that demanding the minimum wage is ‘denying them (people with learning disabilities) the fulfilment of work by making them unaffordable.’ This is an astonishing statement for many reasons, not least that there is not a shred of evidence to support it, but particularly because it perpetuates the very foundations of prejudice and discrimination that lock people with learning disabilities out of the labour market and society more generally: low expectations. The act of employing a person with a learning disability is reduced to one of charity. They should not expect the minimum wage because they are worth even less than the minimum. They will be alright financially because their parents will look after them (until they die) and if not they can be looked after in ‘sheltered communities’ and live off £73 a week, which they don’t need anyway. In fact, according to Purves money doesn’t matter because ‘Some — not all — don’t quite understand money’ (translated: they lack the wherewithal to enjoy equal rights).

This ‘soft bigotry of low expectations’ often masquerades as care and compassion and through doing so masks the causes of injustice and inequality. We live in a country where the recently bereaved parents of adults with learning disabilities who have died are told by medical professionals that their death was ‘probably for the best,’ where local councils have no idea as to the employment status of a third of people with learning disabilities that they support, where a prime-time BBC programme shows people with learning disabilities being tortured in institutions and yet five years on just as many people are stuck in them.

This soft bigotry also clouds our judgment of the parents of people with learning disabilities. In her article Purves decried how ‘the voice of close experience gets shouted down by formulaic pieties.’ Yet accepting without question the views of parents about their adult children’s best interests is itself a manifestation of prejudice and inequality. Society sees only sacrifice and presumes only good intentions, even when parents are calling for their adult children to be legally regarded as worth less than everyone else.

In truth all parents are fallible and all parents are capable of prejudice about their own children’s capabilities and potential, whether disabled or not. As parents we can also project our own fears and insecurities onto our children in ways that limit them now and in the future. And as parents we are not isolated from the prevailing social attitudes around us, whether in relation to disability, gender or homosexuality for example.

Many parents are strong advocates of their adult children’s rights to equality and full participation, yet are often frustrated by a lack of resources, choice and opportunities. Others respond to these constraints by striving to replicate what they consider to be the protective shield of family life via a ‘custodian model’ of care. This has historically often involved people with learning disabilities being denied the right to self-determination, to live independently, to have relationships and a family and so on under the rubric of protecting their ‘best interests.’ In the past, many parents opted for the institutionalisation of their adult children with learning disabilities, sometimes for want of any other support but also sometimes out of shame and to evade stigma.   Monckton herself has been an opponent of moves from institutional care to community-based living, albeit under the banner of promoting ‘choice.’

Monckton is of course absolutely correct to identify the isolation, loneliness and lack of identity and purpose many people with learning disabilities continue to experience. In a seemingly hostile society, manufacturing alternatives to full inclusion can seem like the kindest response. But the successes in Vermont show that there is another path to overcoming these realities if we really want to take it.  Institutionalising inequality and low expectations will set us in the wrong direction.  According people with learning disabilities equal value, and raising our expectations, has to be the starting point.

*courtesy of Bruce Robinson, from ‘Withnail and I’

Why it’s time to be patriotic about equality

brexit-blog

Britain’s equality law story certainly features some important chapters involving the European Union. It is clearly important to consider the implications of Brexit for equality and non-discrimination and to strive to mitigate any risks resulting from our departure.   Yet in truth, Britain has on the whole gone far faster and much further on equality and non-discrimination law despite, not because of our membership of the European Union.   This is as a result of highly effective civil society activism, pioneering Parliamentarians, shifting social attitudes and inspiration drawn not for the most part from Europe but from the USA.

Britain’s first race discrimination laws came onto the statute book in the 1960’s and were inspired by US civil rights law. The Americans with Disabilities Act 1990 provided the template for the Disability Discrimination Act 1995. Both in turn are widely held to have provided inspiration for the anti-discrimination Directives of the European Union, which only appeared in 2000.

Importantly, the Employment Equality Framework Directive 2000 did expand the range of protected characteristics to be covered by anti-discrimination law to include age, sexual orientation and religion.  Further, the Coleman v Attridge law case in the CJEU saw those discriminated on grounds of their association with disabled people, such as carers, brought within the protection of the law.  Yet in implementing the Directive Britain went further than required by protecting people from discrimination not only in employment but also in relation to goods and services. A draft EU Directive to extend protection from discrimination beyond the field of employment has made little progress for almost a decade. Britain did not wait for the EU: the Equality Act 2010 harmonised all of Britain’s anti-discrimination law, providing parity of protection in relation to race, gender, gender identity, disability, age, sexual orientation and religion and belief.

British equality law also goes way beyond the ‘formal equality’ demanded by the EU Directives.   The intention of the Public Sector Equality Duty is to get at those causes of discrimination and inequality that are institutionally bound through a model of ‘enforced self regulation’ by public bodies, aimed at their taking steps to eliminate discrimination and advance equality.  And we have gone further in other ways too, first with civil partnerships, then with Equal Marriage, for example.

Conversely, under the rubric of de-regulation, the 2010-15 coalition government rowed back on key features of employment protection in the Equality Act 2010, introduced employment tribunal fees and imposed huge cuts in the budget of the Equality and Human Rights Commission without once facing censure by the European Commission.

In sum, while Britain has had to comply with the EU law it has helped to create, equality and non discrimination policy and law has largely been a domestic matter.

I’ve no doubt legal and constitutional law experts (of which I am not one) will point out that it is loss of the ‘constitutional underpinnings’ of our membership of the EU that really matter and which require attention. Specifically, that the protection and promotion of equality will be weakened once our laws operate outside of EU principles, the Charter of Fundamental Rights and cease to be directly shaped by the jurisprudence of the Court of Justice of the European Union. One way to mitigate this has been proposed by the House of Commons’ Women and Equalities Committee:

‘Leaving the EU provides an opportunity to return to Parliament its role to ensure that equalities are robustly protected. The Equality Act 2010 is the culmination of decades of development of domestic protection of equalities. An additional clause in that Act adding a function of a declaration of compatibility into the Equality Act would act as an entrenchment of these rights that were enacted by Parliament. (Paragraph 42)

4.The Government should give strong consideration to bringing forward an amendment to the Equality Act 2010 to mirror provisions in the Human Rights Act 1998. The purpose of that amendment would be to set out that public authorities must not act in a way that contravenes the Equality Act unless required to do so by another Act of Parliament; that ministers, when presenting any Bill, must make a declaration of compatibility with the Act; that interpretation of legislation by the courts must take account of the Act and be read as far as possible to comply with its provisions; and that, if any legislation is incompatible with the Act, a declaration of incompatibility should be made by the court. (Paragraph 43)

The case for ‘constitutionalising’ equality in this way was made during debates about the Equality Act in 2010. Specifically it was proposed that the Act offered a vehicle for the UK to ratify Protocol 12 of the European Convention on Human Rights (establishing a freestanding right to equality). The proposal was rejected by the then Labour Government and enjoyed little if any support from the Conservative Party.

In making this proposal the drafters of the Women and Equalities Committee report have clearly tried to sing in harmony with the mood music by presenting the idea as restoring or reaffirming Parliamentary sovereignty. The wording ‘return to Parliament its role’ is curious. Return from where? Was Parliament robbed of its role, and if so, by whom – the European Commission? The Court of Justice of the EU?

This is ‘taking back control of equality’ and it has unsurprising echoes of ‘bringing rights home’ – the branding in 1998 of the Human Rights Act as bringing home the ECHR. But therein lies the problem. First, the positioning of this proposal as necessitated by Brexit and – in effect – involving further incorporation of the ECHR – suggests that it is in practice about constitutionalising not just equality, but ‘European’ equality. Second, it is ultimately about binding Parliament, not empowering it and will be seen as handing further power to the Courts at a moment where judges are being cast as ‘enemies of the people.’

In any case, with a government committed to repealing the Human Rights Act, a Prime Minister keen to take the UK out of the ECHR and the general antipathy towards ‘judicial activism’ this is a proposal that seems very likely to be ‘dead on arrival’.  And while objectively I can see its merits, politically I fear it will be a disaster if equality activists invest their energies in pursuing it now.

I think the future of equality in post-Brexit Britain has to be won politically, not via binding legal measures as attractive as they may seem.   We have much to build on. Britain has been able to go further and faster than the EU has demanded because in time a general political consensus has evolved which regards discrimination as an unacceptable and a socially and economically undesirable feature of modern British life.

Brexit is an inflection point, where we will be forced to ask ourselves who we are and what we stand for.  Our challenge now is to set out a compelling story of equality, not as a hangover of our membership of the EU, but as a proud part of our national story and as central to a thriving future.

 

Postscript

I’m advised that the measure proposed by the Women and Equality Committee could be achieved without ratifying Protocol 12 of the ECHR, for example by amending the Equality Act 2010 to insert provisions similar to those in the Human Rights Act regarding the obligations of Ministers and the respecting obligations and powers of the Courts and Parliament.   That provides a way around the ECHR Protocol 12 obstacle, but it still begs the question: if our equality laws are home grown, why is Brexit the moment to do this?

 

 

 

 

How can liberals defend human rights in the era of Brexit and Trump?

Brexit was declared word of 2016 by the Collins English Dictionary and is defined as ‘the withdrawal of the United Kingdom from the European Union.’ As one wag suggested, it would have been bolder had they simply defined it as ‘a noun meaning….Brexit’.   This in all fairness remains as accurate and comprehensive description as can be provided at this stage.

That obviously makes the job of anticipating the risks to fundamental rights somewhat difficult for without such details how can we assess its significance and what we can do about it?   Well I was a cub- scout in my youth and the cub-scout motto is ‘be prepared’.

We can prepare by understanding and making sure people recognise what is at stake.   And make no mistake – rights, equality and social justice are at stake, as Angela Patrick’s report for the Thomas Paine Initiative makes plain.  We can also prepare by envisioning strategies and actions now to strive to shape the most fertile environment for rights, equality and social justice to thrive through and beyond Brexit.

This is about defending the legal rights and the means by which they are protected. But it is equally about shaping our values and outlook as a country, what it means to live in the UK and our place in the world today and in the future.

In Brexit, the election of Donald Trump, and recent and ongoing developments in Austria, Hungary, France, the Netherlands and elsewhere we see right-wing populism on the rise.  These are not fringe movements – they are movements and political parties seizing power and defining the political landscape. The slogans ‘take back control’ and ‘make America Great Again’ speak to the fact that:

  • Authoritarianism is winning over liberalism
  • Nativism is undermining support for universalism
  • Fair treatment is something that many believe must be earned: equality is not typically regarded as an inalienable right

Brexit and Trump did not come out of the blue.   In Britain, the debate regarding a British Bill of Rights has been bubbling under for over a decade. Insofar as we know anything about the proposed Bill it is clear that it – and the rhetoric surrounding it – is calibrated to satiate these ever more dominant values, not to uphold those we have understood to underpin the advancement of human rights since the mid 20th century. If reports are to believed, Theresa May will strive to go one step further and take the UK out of the European Convention on Human Rights altogether if her Party wins the 2020 General Election.

So the lesson of 2016’s seismic events is that the challenge ahead of us cannot be reduced to one of rational arguments about which policies and laws are good for our country to maintain. It is going to require a huge effort to engage with, marshal and to strive to shape the values that are necessary to secure support for them in future. And that is going to require us to do things differently.

Against this rising tide of populism, those who espouse liberal, progressive values have largely failed to articulate alternatives in a manner sufficiently compelling to frame public debate or win political arguments. Too often they have also managed to alienate potential support, unwittingly or otherwise pressing authoritarian buttons (prisoner votes, Abu Qatada), appearing to equate patriotism with racism or by seeming to have disregard for the social contract of rights and responsibilities.   In the populist narrative where the ‘will of the people’ trumps representative democracy or the role of the judiciary, human rights can easily fall prey to being characterised as inherently undemocratic.

The danger right now is even greater polarization between ‘liberals’ and ‘authoritarians’ as each retreat into a ‘culture war.’   It seems highly likely that in the current climate liberals will lose. As one observer said of the Democrat’s failure to confront Trump ‘we have brought a sheet of parchment and a set of abstract principles to a knife fight. And we’re going to get cut.’

But how can we navigate these destructive values without appearing to endorse them? We already know some of the answers, but have shied away from others. I believe our challenge is to develop communications strategies that:

  • Pivot away from issues that press authoritarian buttons, without conceding to the notion that ‘bad people’ should have fewer rights
  • Embrace patriotism without indulging the notion of different classes of rights for nationals and non-nationals/at home or abroad
  • Demonstrate how human rights reaffirm rather than undermine the social contract, without deepening the notion of deserving or underserving groups

This is of course easier said than done.   We may need to accept that in the short term our task is simply to ‘de-fuse’ the debate around human rights – to neutralise hostility – not to anticipate (or even strive) a wholesale shift in support for the values underpinning human rights. Does this justify a shorter-term communications strategy that appears on the face at least to be more ‘in tune’ with values that human rights defenders have tended to find uncomfortable?   What could be the longer-term cost of such a strategy? Would it take the wind out of the sails of those seeking regressive reform, or risk aiding their cause?   I find it interesting that up until relatively recently ‘health and safety’ attracted similar levels of political and media hostility to human rights (a byword for ‘nanny Statism’ and intrusive regulation) but appears to have largely lost its political potency, without major reform to health and safety law or regulations, so there is perhaps hope.  What brought this about?

Values in opposition to human rights have helped secured major victories and the ramifications of those victories will be considerable for years to come. Nevertheless, the implications of Brexit, Trump’s victory and other developments are yet to be fully secured – legally, politically and socially. Human rights laws, institutions and values will provide a critical bulwark against right wing authoritarianism, helping to contain potential abuses of power. The opportunity and challenge for human rights defenders in this context is to make clear that it is human rights that stand up for the common good. There is a receptive audience: half of the voting public did not support Brexit (or Donald Trump). Many more did not vote. Of those who did vote leave, or for Trump, many fall under the ‘conflicted’ banner. They are not rabid authoritarian right-wingers. Longer-term trends lean towards more open, tolerant and rights respecting societies.

Right now and for many years to come Brexit provides a moment of national reflection. It will force us to contemplate who we are and what we want to be as a country, how we want to live together and to treat one another, how we relate to the wider world and how we want the wider world to view us.  It will force liberals – including human rights defenders – to confront factors that led us to this point: rising inequality, narrow identity politics, disenfranchisement, ceding the public narrative.

This is as much an opportunity for liberalism to renew itself as it is a threat.   Learning how to communicate effectively and to command public support for the values we hold dear needs to be at the heart of that renewal.

Five big challenges for British disability rights in 2017

2017

Norman Kirk, Prime Minister of New Zealand from 1972-74 famously said “people don’t want much: just someone to love, somewhere to live, somewhere to work and something to hope for.”

Millions of disabled people in Britain lead lives in which the reasonable, ordinary expectations Kirk spoke of are a part.  Many are beneficiaries of battles fought by disability rights campaigners over the past half century or more – campaigns which led to advances in accessibility, public service reform, anti-discrimination law and tackling poverty for example.  Progress does continue to be made everyday.

But many millions also continue to lead lives in which the ordinary is made extraordinary by prejudice, discrimination, under-investment and more recently rapid disinvestment.

I spent late last year helping draft ‘shadow reports’ – that is, independent accounts – concerning Britain’s compliance with the United Nations Convention on the Rights if Persons with Disabilities, supporting and working with Disability Rights UK, Disability Wales and Inclusion Scotland.   The reports, to be formally submitted to the UN Committee on the Rights of Persons with Disabilities and published at the end of January,  span huge ground and go into considerable detail.   But what emerges are a number of common themes, which I believe together present five major strategic challenges for British disability rights activism to navigate in 2017 and beyond.

Policy, practice and legislation in England and Wales is not consistently grounded in the principles and paradigm shift heralded by the UNCRPD. For example, access to social security benefits for disabled people is defined by highly medicalised or functional criteria, while welfare to work policy and practice takes little or no account of external barriers hindering participation. There is increasing evidence of coercion across a range of policy areas, including welfare to work and the treatment of people with learning disabilities, mental health problems & dementia, contrary to the CRPD’s emphasis on dignity, autonomy and independence.  Public attitudes to disabled people are grounded in low expectations and this translates into public policy and spending decisions.

There has been stalling progress and in some cases reversal of past successes. For example, there are more disabled children being educated in special schools than a decade ago, poverty among disabled adults is rising and the number of public appointees who are disabled is half what it was in 2010.  There are as many adults with learning disabilities in Assessment and Treatment Units as at the time of the Winterbourne View scandal and there has been a large increase in the number of adults detained under the Mental Health Act.

There has been a general disinvestment in the rights and opportunities of disabled people. Significant reductions in public spending under the rubric of austerity have had a disproportionate impact on the rights and opportunities of disabled people.  The impact is felt not only in the overall quantum of financial and practical support available but also in the way financial controls are heralding more restrictive practices such as in relation to the freedom of people to choose how to spend personal budgets.  Centrally important measures to protect and advance the rights of disabled people such as the Equality Act 2010 have been characterised by the UK government as burdens on business and public bodies. Looking ahead, Brexit will remove a ‘double lock’ on existing rights while depriving disabled people in the UK of progressive EU measures in areas such as accessibility and independent living. In a festive announcement, Theresa May has reaffirmed her conviction that the UK should withdraw from the European Convention on Human Rights. The government’s response to the recent UNCRPD Committee inquiry into the impact of austerity measures was dismissive of the Committee’s jurisdiction.

There is a lack of strategy, oversight, coordination and involvement – the UK government’s strategy on the rights of disabled people ‘Fulfilling potential’ does not include concrete, targeted and measurable actions. The status and role of the Office for Disability Issues as a ‘focal point’ and ‘coordinating mechanism’ for disability rights in Britain is unclear. There do not appear to be meaningful and consistent modes of involvement of disabled people in policy making nationally or locally. National commitments and plans concerning disabled people’s rights in England and Wales have not translated into consistent local action. The promise of local accountability resulting from local government and NHS reforms has not materialised and has been undermined further still by a loss of funding for local DPOs.

Promotion, enforcement and redress have become weaker. Rights without redress are no rights at all. It has become far more difficult for disabled people to access remedy for rights violations through the courts and tribunals. Since the Disability Rights Commission closed its doors in 2007 there have been major cuts in the resources devoted to the promotion and enforcement of the rights of disabled people. Far reaching reforms, distributing accountability away from central government to local government and the NHS have made it far harder to hold the State as a whole to account.

Over the coming months I’ll write more about each of these challenges and share my thoughts and ideas about how a new disability rights agenda can rise to them.   I welcome all opportunities to discuss this with others (including of course whether I have identified the correct issues) on and offline (ideally off as I’d like to get out and meet more people this year).   You may of course not consider that they even are the major challenges, in which case please say so!

In the meantime, let’s remember the progress that has and continues to made and by doing so try to ‘make hope possible rather than despair convincing’.

A Happy New Year to all

Neil