JCHR Independent Living Inquiry - parliamentary seminar presentation

8/2/2019 JCHR Independent Living Inquiry - parliamentary seminar presentation

1/31

Parliamentary Seminar 21 st March 2012

JOINT COMMITTEE ON HUMANRIGHTS INQUIRY IMPLEMENTATIONOF DISABLED PEOPLES RIGHT TOINDEPENDENT LIVING


2/31


3/31

What we will address

An overview of the InquiryUnderstanding UNCRPD & the government sobligationsKey findings and recommendationsConcluding remarks


4/31


5/31

Overview of the Inquiry

Over 100 pieces of written and oral evidenceCommittee visited Essex Coalition of DisabledPeopleSession with Minister for Disabled People,Minister for Care Services and Minister forLocal Government


6/31

UNDERSTANDING THE UNCRPD


7/31

Purpose of the Convention

Re- affirms the human rights of persons with disabilitiesas set out in ICCPR , ICESCR and other UN Treaties(e.g. UNCRC , UNCEDAW )Situates these human rights in the context of disabilitye.g. right to live independently and to be included in thecommunity(officially) does not introduce new rights

Based on social model of disabilitySets out the steps States must take to protect, promoteand ensure the human rights of disabled people
http://www2.ohchr.org/english/law/ccpr.htmhttp://www2.ohchr.org/english/law/cescr.htmhttp://www2.ohchr.org/english/law/crc.htmhttp://www2.ohchr.org/english/law/cedaw.htmhttp://www2.ohchr.org/english/law/cedaw.htmhttp://www2.ohchr.org/english/law/crc.htmhttp://www2.ohchr.org/english/law/cescr.htmhttp://www2.ohchr.org/english/law/ccpr.htm


8/31

Structure of the Convention

Articles 1- 9 are considered to be cross -cutting Articlesof general application e.g. Purpose, general principles,

general obligations, equality and non-discrimination,awareness raising, accessibilityArticles 10- 30 are substantive Articles e.g. LegalCapacity, Access to Justice, Education, Health, PoliticalParticipationArticles 31-50 concern implementation and monitoringe.g. data collection, international cooperation, role of theCRPD Committee, national implementation andmonitoring


9/31

Article 3 General Principles

The principles of the present Convention shall be:Respect for inherent dignity, individual autonomyincluding the freedom to make one's own choices, andindependence of persons;

Non-discrimination;Full and effective participation and inclusion in society;Respect for difference and acceptance of personswith disabilities as part of human diversity andhumanity;Equality of opportunity;Accessibility;Equality between men and women;Respect for the evolving capacities of children withdisabilities and respect for the right of children withdisabilities to reserve their identities.


10/31


11/31

Article 4 - General obligationsStates Parties undertake:a) To adopt all appropriate law, policy and measuresto implement the Convention

b) To modify or abolish existing laws, regulations,customs and practices that constitute discriminationc) To take into account the protection and promotionof the human rights of persons with disabilities in all

policies and programmes;d) To refrain from engaging in any act or practice thatis inconsistent with the present Convention and toensure that public authorities and institutions act in

conformity with the present Convention;


12/31


13/31

and being included in thecommunity

States 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:


14/31

Article 19 continued

a) Persons with disabilities have the opportunityto choose their place of residence and where andwith whom they live on an equal basis with othersand are not obliged to live in a particular livingarrangement;b) Persons with disabilities have access to arange of in-home, residential and other communitysupport services, including personal assistancenecessary to support living and inclusion in thecommunity, and to prevent isolation orsegregation from the community;c) Community services and facilities for thegeneral population are available on an equal basis


15/31

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.


16/31

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 are

immediately applicable according to international law.


17/31

Article 19 (c) is more in the nature of civil and politicalrights

Non-discrimination in relation to accessing goods andservices, including the duty to make reasonableaccommodations, legislative measures for which arerequired with immediate effect, and the promotion of

accessibility


18/31

FINDINGS ANDRECOMMENDATIONS


19/31

Status of the Convention in UKand EU law

Minister indicated government view thatConvention was soft lawSoft law is the term generally used todescribe standards which do not have thestatus of being legally binding on the State ininternational law. Treaties are legally bindingon the state in international law and theobligations contained in treaties are alwayshard law.The government should fulfil its obligations onthis basis & counter public misperceptions


20/31

Status of the Convention in UKand EU law

Does not have direct effect in domestic CourtsLegal effect via Human Rights Act 1998 andEuropean Communities Act 1972

ECtHR has begun to take note of UNCRPD UK government bound by its judgements andUK courts will be influenced by its

jurisprudence

EU has ratified UNCRPD required tointerpret EU law and regulation compatiblywith the ConventionUK has also ratified the Optional Protocol ,enabling individual petition to the UNCRPD


21/31

Is government meeting isgeneral obligations?

Witnesses unclear as to status of documentssuch as the Independent Living Strategy &2020 Roadmap

JCHR recommended forthcoming DisabilityStrategy be basis for UK nationalimplementation plan

Must be robust, targeted and deliverable, co -produced with disabled people and cover allaspects of the Convention Should include clear milestones and bemonitored by an independent body


22/31

Is government meeting isgeneral obligations?

No evidence of UNCRPD playing a part in relevantpolicy development and decisions seekscommitment from government to Parliament that it willgive due consideration to UNCRPD when making newpolicy and legislationPoor quality Equality Impact Assessments & confusionover duties of government and public authorities toconduct themRegrets exclusion from English specific duties ofexplicit EIA requirement and calls for revision ofpromotion of EIA via statutory guidanceRecommends a unified assessment of cumulativeimpact of proposals affecting independent living,


23/31


24/31

Is UK law and policy sufficient toimplement Article 19?

Existing matrix of human rights, equality andcommunity care law insufficientRight to control should be rolled out nationwide if

pilots show positive resultsIndependent living should be an outcome in reformedcommunity care law, contrary to the LawCommission s conclusions

Right to advocacy in 1986 Disabled Persons Actshould be modified and implemented


25/31

Is UK law and policy sufficient toimplement Article 19?

But filling the gaps not enough. Recommend an assessment of the need for andfeasibility of freestanding legislation to give more

concrete effect in UK law to right to independent livingChimes with comment by CoE Human RightsCommissioner (March 2012): There is a need todefine a level of support below which one s dignity and

ability to be included in the community iscompromised. Any person should be empowered toenforce their entitlement to this level of support .


26/31

Other policyrecommendations

National and local government should monitor and promoteinnovative practices which employ personalisation tomitigate the impact of spending cutsGovernment should measure the effectiveness of roll out ofpersonal budgets in social care and health on choice andcontrolGovernment should consider what steps are required toensure portability measures comply with Article 19The Disability Strategy should address the rights of disabled

people in residential settingsDisabled people in residential settings should not facefinancial disincentives to paid employmentThe Government should, in partnership with disabledpeople s organisations, monitor the extent to whichregulation and inspection frameworks are promotinginde endent livin in both domiciliar and institutional


27/31

Other policyrecommendations

Government should legislate to clarify that home caredelivered by private and voluntary sector bodies fallswithin the scope of the Human Rights ActContinue to support and develop the role of DisabledPeople s User -Led Organisations to enable them toprovide independent information, advice, andadvocacy servicesGovernment should refrain from contributing torepresentations of disabled people which cause

negative public attitudes or hostilityThe Government should monitor the extent to whichaccess to redress and justice for disabled people isaffected by the provisions of the Legal Aid, Sentencingand Punishment of Offenders Bill, and the effect this

has on their right to independent living. The DisabilityStrategy should include action to be taken to ensure


28/31

The impact of national and localspending decisions

Concern expressed to the Committee aboutthe individual and cumulative impacts ofreforms and spending decisions

Disability Living Allowance, Housing Benefit,the Independent Living Fund, Legal Aid andlocal authority funding of adult social care onthe right to independent livingDo these reforms amount to breaches orretrogression in relation to Article 19?

g g


29/31

en m g re orm or spen ngdecisions amount toretrogression?

There is a strong presumption that retrogressivemeasures taken in relation to the right to social securityare prohibited under the Covenant. If any deliberatelyretrogressive measures are taken, the State party hasthe burden of proving that they have beenintroduced after the most careful consideration ofall alternatives and that they are duly justified byreference to the totality of the rights provided for in theCovenant, in the context of the full use of themaximum available resources of the State party .


30/31

decisions amount toretrogression?

General Comment 4 UN Committee on ESC rights ageneral decline in living and housing conditions,directly attributable to policy and legislative decisionsby the States parties, and in the absence of

accompanying compensatory measures, would beinconsistent with the obligations under the Covenant. Paragraph 11: even where the available resourcesare demonstrably inadequate, the obligation remains

for a State party to strive to ensure the widest possibleenjoyment of the relevant rights under the prevailingcircumstances .


31/31

Concluding remarks

Inquiry has demonstrated implementation gapand risks of non complianceUNCRPD is a powerful accountabilitymechanism in the domestic sphere, not justthe internationalJCHR Inquiry receiving world-wide interest

Report should be used as basis of a dialoguebetween disabled people, government,independent mechanisms and other actors toplan next steps

Date post:	05-Apr-2018
Category:	Documents
Upload:	rich-watts
View:	215 times
Download:	0 times

JCHR Independent Living Inquiry - parliamentary seminar presentation

Documents