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JCHR Independent Living report - seminar presentation


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JCHR Independent Living report - seminar presentation

  2. 2. What we will address An overview of the Inquiry Understanding UNCRPD & the government‟s obligations Key findings and recommendations Concluding remarks
  3. 3. Overview of the InquiryTerms of reference focused on: Effectiveness of existing strategy, policy and legislation The impact of spending decisions Disabled people‟s involvement in policy development and decision-making Monitoring and implementation of the Convention
  4. 4. Overview of the Inquiry Over 100 pieces of written and oral evidence Committee visited Essex Coalition of Disabled People Session with Minister for Disabled People, Minister for Care Services and Minister for Local Government
  6. 6. Purpose of the Convention Re-affirms the human rights of “persons with disabilities” as set out in ICCPR, ICESCR and other UN Treaties (e.g. UNCRC, UNCEDAW) Situates these human rights in the context of disability e.g. right to live independently and to be included in the community (officially) does not introduce new rights Based on social model of disability Sets out the steps States must take to protect, promote and ensure the human rights of disabled people
  7. 7. Structure of the Convention Articles 1-9 are considered to be „cross-cutting‟ Articles of general application e.g. Purpose, general principles, general obligations, equality and non-discrimination, awareness raising, accessibility Articles 10-30 are „substantive‟ Articles e.g. Legal Capacity, Access to Justice, Education, Health, Political Participation Articles 31-50 concern implementation and monitoring e.g. data collection, international cooperation, role of the CRPD Committee, national implementation and monitoring
  8. 8. Article 3 – General PrinciplesThe principles of the present Convention shall be: Respect for inherent dignity, individual autonomy including the freedom to make ones own choices, and independence of persons; Non-discrimination; Full and effective participation and inclusion in society; Respect for difference and acceptance of „persons with disabilities‟ as part of human diversity and humanity; Equality of opportunity; Accessibility; Equality between men and women; Respect for the evolving capacities of „children with disabilities‟ and respect for the right of „children with disabilities‟ to preserve their identities.
  9. 9. A human rights convention or asocial development convention? UNCRPD blurs the distinction between civil and political rights and economic and social rights “Not enough just to open the door. Many disabled people require the material support to pass through it” Prof. Gerard Quinn Articles co-mingle different classes of rights: Positive obligations underpinning civil and political rights, reasonable accommodation, civil and political rights contingent on economic and social rights e.g. Article 19 „Substantive freedom‟ – Amartya Sen
  10. 10. Article 4 - General obligations States Parties undertake: a) To adopt all appropriate law, policy and measures to implement the Convention b) To modify or abolish existing laws, regulations, customs and practices that constitute discrimination c) To take into account the protection and promotion of the human rights of „persons with disabilities‟ in all policies and programmes; d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention;
  11. 11. Article 4 – GeneralObligations  e) To take all appropriate measures to eliminate discrimination on „the basis of disability‟  2 Take measures to progressively realise economic, social and cultural rights  3 Consult with actively involve disabled people in implementation  5. Ensure all parts of „federal States‟ are covered
  12. 12. Article 19 - Living independentlyand being included in thecommunityStates Parties to the present Convention recognize the equalright of all „persons with disabilities‟ to live in the community,with choices equal to others, and shall take effective andappropriate measures to facilitate full enjoyment by „personswith disabilities‟ of this right and their full inclusion andparticipation in the community, including by ensuring that:
  13. 13. Article 19 continued a) „Persons with disabilities‟ have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; b) „Persons with disabilities‟ have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; c) Community services and facilities for the general population are available on an equal basis
  14. 14. Article 19 requires a variety ofdifferent actions and measures.Article 19 (a) implies rights to self-determination inrelation to matters affecting where and with whom adisabled person lives and the means by which disabledpeople are involved in decisions affecting them.This suggests a need for legal and/or administrativemechanisms which protect and promote choice andcontrol regarding where and with whom disabled peoplelive.
  15. 15. Article 19 (b) appears to recognise social and economicrights of disabled people and as such obliges acontracting State to: “take measures to the maximum of its availableresources with a view to achieving progressively the fullrealization of these rights, without prejudice to thoseobligations contained in the present Convention that areimmediately applicable according to international law”.
  16. 16.  Article 19 (c) is more in the nature of civil and political rights Non-discrimination in relation to accessing goods and services, including the duty to make reasonable accommodations, legislative measures for which are required with immediate effect, and the promotion of accessibility
  18. 18. Status of the Convention in UKand EU law Minister indicated government view that Convention was „soft law‟ “Soft law” is the term generally used to describe standards which do not have the status of being legally binding on the State in international law. Treaties are legally binding on the state in international law and the obligations contained in treaties are always “hard law”. The government should fulfil its obligations on this basis & counter public misperceptions
  19. 19. Status of the Convention in UKand EU law Does not have direct effect in domestic Courts Legal effect via Human Rights Act 1998 and European Communities Act 1972 ECtHR has begun to take note of UNCRPD – UK government bound by its judgements and UK courts will be influenced by its jurisprudence EU has ratified UNCRPD – required to interpret EU law and regulation compatibly with the Convention UK has also ratified the „Optional Protocol‟ , enabling individual petition to the UNCRPD
  20. 20. Is government meeting isgeneral obligations? Witnesses unclear as to status of documents such as the Independent Living Strategy & 2020 Roadmap JCHR recommended forthcoming Disability Strategy be basis for UK national implementation plan Must be „robust, targeted and deliverable, co- produced with disabled people and cover all aspects of the Convention‟ Should include clear milestones and be monitored by an independent body
  21. 21. Is government meeting isgeneral obligations? No evidence of UNCRPD playing a part in relevant policy development and decisions – seeks commitment from government to Parliament that it will give due consideration to UNCRPD when making new policy and legislation Poor quality Equality Impact Assessments & confusion over duties of government and public authorities to conduct them Regrets exclusion from English specific duties of explicit EIA requirement and calls for revision of promotion of EIA via statutory guidance Recommends a unified assessment of cumulative impact of proposals affecting independent living,
  22. 22. Is government meeting isgeneral obligations? Unclear what arrangements exist to ensure compliance by public authorities Government should clarify how implementation is coordinated across Westminster, Holyrood, Cardiff and Belfast Seeks assurances of disabled people‟s involvement, not just their consultation, describes the lack of an explicit requirement to involve disabled people in the English specific duties as a „retrogressive step‟ and recommends government actively promote such involvement in line with the General Obligations under Article 4 (2) Notes low awareness of UNCRPD among disabled people and recommends government work with disabled people to rectify this
  23. 23. Is UK law and policy sufficient toimplement Article 19? Existing „matrix‟ of human rights, equality and community care law insufficient Right to control should be rolled out nationwide if pilots show positive results Independent living should be an outcome in reformed community care law, contrary to the Law Commission‟s conclusions Right to advocacy in 1986 Disabled Persons Act should be modified and implemented
  24. 24. Is UK law and policy sufficient to implement Article 19? But filling the gaps not enough…. Recommend an assessment of the need for and feasibility of freestanding legislation to give more concrete effect in UK law to right to independent living Chimes with comment by CoE Human Rights Commissioner (March 2012): “There is a need to define a level of support below which one‟s dignity and ability to be included in the community is compromised. Any person should be empowered to enforce their entitlement to this level of support.”
  25. 25. Other policy recommendations National and local government should monitor and promote innovative practices which employ personalisation to mitigate the impact of spending cuts Government should measure the effectiveness of roll out of personal budgets in social care and health on choice and control Government should consider what steps are required to ensure portability measures comply with Article 19 The Disability Strategy should address the rights of disabled people in residential settings Disabled people in residential settings should not face financial disincentives to paid employment The Government should, in partnership with disabled people‟s organisations, monitor the extent to which regulation and inspection frameworks are promoting independent living in both domiciliary and institutional
  26. 26. Other policyrecommendations Government should legislate to clarify that home care delivered by private and voluntary sector bodies falls within the scope of the Human Rights Act Continue to support and develop the role of Disabled People‟s User-Led Organisations to enable them to provide independent information, advice, and advocacy services Government should refrain from contributing to representations of disabled people which cause negative public attitudes or hostility The Government should monitor the extent to which access to redress and justice for disabled people is affected by the provisions of the Legal Aid, Sentencing and Punishment of Offenders Bill, and the effect this has on their right to independent living. The Disability Strategy should include action to be taken to ensure
  27. 27. The impact of national and localspending decisions Concern expressed to the Committee about the individual and cumulative impacts of reforms and spending decisions Disability Living Allowance, Housing Benefit, the Independent Living Fund, Legal Aid and local authority funding of adult social care on the right to independent living Do these reforms amount to breaches or „retrogression‟ in relation to Article 19?
  28. 28. When might reform or spending decisions amount to retrogression? “There is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under the Covenant. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant, in the context of the full use of the maximum available resources of the State party.”
  29. 29. When might reform or spendingdecisions amount toretrogression? General Comment 4 UN Committee on ESC rights “a general decline in living and housing conditions, directly attributable to policy and legislative decisions by the States parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations under the Covenant”. Paragraph 11: “even where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances.”
  30. 30. Concluding remarks Inquiry has demonstrated implementation gap and risks of non compliance UNCRPD is a powerful accountability mechanism in the domestic sphere, not just the international JCHR Inquiry receiving world-wide interest Report should be used as basis of a dialogue between disabled people, government, independent mechanisms and other actors to plan next steps