Passle Series: Disability Rights, the UK and the UNCRPD: Unstable Foundations?

In the second of a series of posts on the upcoming periodic review of the UK's compliance with the UN Convention on the Rights of Persons with Disabilities, Angela Patrick considers the legal and political framing for the review, post referendum and the shadow report of the UK's Independent Mechanism (the EHRC, the SHRC, the NIHRC and the Equality Commission for Northern Ireland).

Read the first in the series from Kate Beattie, here.

Disability Rights, the UK and the UNCRPD:  Unstable Foundations?

The Independent Mechanism Report on the UK's compliance with the UN Convention on the Rights of Persons with Disabilities (CRPD) rightly begins by suggesting that the upcoming UN Review begins with questions about the UK's protection of human rights - and the rights of disabled persons - in domestic law. 

With political challenges to the existing legal framework - in the form of proposals to repeal the Human Rights Act 1998 and uncertainty over the implications of Brexit - any examination of the UK's performance must start by asking whether our commitment to the rights of disabled people is currently sitting on fairly unstable legal foundations. 

Firstly, the Report notes that there is nothing in the law of the three legal jurisdictions which integrates the commitments of the UNCRPD directly into domestic law.  Unlike, the UNCRC, which is, at least referenced and reflected in the provisions of the Children Act 2004, no "due regard" or similar duty applies to public authorities or agencies in respect of the rights of disabled people.   (Although Scotland are exploring their options and in Wales, the Social Services and Well-being (Wales) Act’s Code of Practice makes reference to the UNCRPD)  (See pp 10-11).

Secondly, the proposal to repeal the Human Rights Act is acknowledged to have the potential to change the shape of the law for the "essential protection of everyone" in a way which could have "have significant constitutional and social consequences".  The Report calls for any process of replacing the HRA 1998 with a UK Bill of Rights to be a participative one, which fully involves disabled people in the process (pp 12 - 13).  The Government, has, of course, intimated that there will be no repeal of the Human Rights Act for the time being, while Whitehall and Westminster grapple with the process of Brexit.

Which brings, us, finally, to Brexit.  The road where many so conversations lead at the moment.  The introduction to the Report culminates with a concern expressed about the lack of certainty which Brexit creates for the protection of the rights of disabled people.  The Independent Mechanism highlight procurement and transport as areas where international cooperation may add value for the protection of the rights of persons with disabilities.  The Report raises concerns about risks during Brexit for the protection of the rights of persons with disabilities and warns against rights "regression" (pp 13 - 14). The uncertain implications of Brexit for the protection of individual rights has been a concern raised by charities, the Joint Committee on Human Rights, the House of Lords EU Committee on Justice and others (read more in this Doughty Street blog, Brexit: Fundamental Rights not for Bargaining).

The EU  is, of course, a signatory to the UNCRPD in its own right.  However, the reach of its work for the rights of disabled persons has gone far beyond that commitment.  

The EU "promotes the active inclusion and full participation of disabled people in society, in line with the EU human rights approach to disability issues". Disability is treated as a "rights issue and not a matter of discretion". This approach is also at the core of the UN Convention on the Rights of People with Disabilities (UNCRPD), to which the EU is a signatory. 

The European Commission's European Disability Strategy 2010-2020, adopted in 2010, builds on the UNCRPD. The Commission convenes a regular High-Level group on the implementation of the UNCRPD and supports the Academic Network of European Disability Experts. 

The first of eight key priorities for the current strategy is accessibility and, in December 2015, the European Commission published its proposals for the new European Accessibility Act. This new Directive would impose a new duty Europe wide designed to reduce barriers to independent living for persons with disabilities (or functional impairments) (draft Directive 2015/0278). The Commission intends that the Act will benefit both businesses and persons with disabilities.  

It is uncertain whether the new Directive will come into force before Brexit. Organisations and individuals working on disability rights in the UK - including Baroness Tanni Grey Thompson -   have already expressed concerns that persons with disabilities will lose out on the new protections as they are applied across Europe and not here.  

Ultimately, the Independent Mechanism Report asks the UN to put pressure on the UK Government to produce a clearer Action Plan for meeting its obligations under the UNCRPD (pp 14 - 15). 

In an environment where underpinning the legal foundation of our commitment to human rights appears more of a priority than new building, that seems like a request worth making but unlikely to be constructive without a significant change in direction from the Government front bench.