Disability and Human Rights

One of the blessings of this year has been that I designed, and managed to get approved by my Law School, a postgraduate course on Disability and Human Rights. At the time of writing this, I have no idea if students will actually be interested in taking part in the course, so it may not run after all, due to lack of interest. But that is beside the point of this post.

The real challenge for legal academics who are interested in disability and human rights, like me, is to translate the claims of the disability rights movement in their best legal light. Of course there is now the Convention on the Rights of Persons with Disabilities. Yet, we should not forget that the CRPD is an international convention, which is the product of diplomatic debate and input from disability NGOs. The rights protected by the CRPD require interpretation and the work of the CRPD Committee will prove crucial to this effect.

The best example to illustrate my point is the theoretical cornerstone, upon which the disability rights movement has based its edifice of claims: the social model of disability, about which Jenny Morris has written an amazing blog. Reading this post, and reflecting on it from a legal perspective has been a long process for me, which is still ongoing, so I will incorporate it in the reading list for the first seminar of my Disability and Human Rights module and see what my students will say.

The common approach to the social model of disability in terms of human rights has been that it imposes obligations upon the state to bring down the barriers that exclude persons with disabilities from equal and full participation to society. This approach carries a fatal objection about the allocation of scarce resources: the state, in carrying out its policies, may give precedence to policies other than the social model of disability.

The CRPD has sought to rectify this by taking an integrated approach to the human rights of persons with disabilities: there is no clear distinction between negative rights and socio-economic rights. CRPD rights are a normative bundle of negative rights and positive obligations, which have to be realised progressively. The objection from the argument on the allocation of scarce resources is partly addressed in this way.

Notwithstanding the sheer awesomeness of the CRPD, I have a nagging suspicion that the way forward in human rights protection for persons with disabilities may lie in this direction: clearing the way for the ever greater justiciability of disability rights, by intensifying the review (e.g. the proportionality control) of the allocation of scarce resources.

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Disability Hate Crime – The Law Commission’s Consultation

Back in September 2011, the Equality and Human Rights Commission published a very important report, ‘Hidden in Plain Sight‘, which looked into issues of disability-related harassment. The findings of the Report make for disheartening reading. I will not hide the fact that the Report, Part 2 especially, where ten serious cases of disability hate crime are described, gave me – and still does – the howling fantods. The gist of the report for me is that harassment is very common and that something has to be done about it.

But I won’t make the mistake of supporting this claim, without explaining it a bit. I think we cannot understand disability hate crime without some analytical tools, concepts such as the social model of disability and disablism. My understanding of disablism is not very different than that of other writers in disability rights. Disablism is treating someone as inferior because of her disability. However, this is not the complete picture. If I call someone the R-word, am I displaying a disablist sentiment? Undoubtedly, but this conclusion does not follow logically from the definition of disablism I just cited. Disablism has also to be understood in connection with the social model of disability. If I am displaying attitudes , engaging in behaviour, reproducing stereotypes that commonly used to preclude the full and equal participation of persons with disabilities in society, then I am displaying disablist conduct. Calling someone the R-word is not simply about treating someone as inferior, but it also perpetuates a negative stereotype for persons with intellectual disability which reinforces their social exclusion of mainstream society. Therein lies the harm of disablist speech. It is a different matter entirely if we decide that this harm outweighs the right to free speech.

This may sound like hair-splitting. It may also be very obvious to disability activists. Personally, I had to work my head around this in order to construct an argument that involves a more complete understanding of disability hate crime.

Turning to the Law Commission’s Consultation on extending hate crime offences to cover disability, sexual orientation and gender identity, which can be found here, it is important to note that the questions that the Law Commission can look into are rather limited. The question basically boils down to this: English law has created aggravated offences of hate crimes, as well as an offence of incitement to hatred for some protected categories. Should the existing criminal law be extended to cover disability, sexual orientation and gender identity?

The answer, from a legal, disability rights perspective, is unequivocally yes. Despite the problems which have been noted in enforcing existing hate crime legislation, in the limited remit that this Law Commission Consultation has, the message has to be that Parliament should protect persons with disabilities more against hate crime.

I am focusing on disability here, not because I do not think that the other characteristics of sexual orientation and gender identity should not be protected, but because the claim for the fuller protection against disability hate crime is much stronger in legal terms. In moral terms, my deeply held belief is that protection against hate crime is required for any group of persons that is targeted because of its ‘otherness’, because of its difference. But in legal terms, the case of disability is much stronger because there is the Convention on the Rights of Persons with Disabilities.

Consider Art. 16 CRPD: Freedom from exploitation, violence and abuse. Section 5 requires states to adopt effective legislation and policies to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and prosecuted. This legal provision does not leave any room for wishy-washy responses to hate crime.

This point is extremely important for the more controversial offence of incitement to hatred, which is unacceptable for the hard-core liberals among us, who believe that freedom of speech is (near) absolute.

Some analysis of the issue of the right to free speech is required, before I proceed. The hard-core approach to freedom of speech is out of tune with the current legal paradigm of the CRPD. Art. 8 CRPD imposes an obligation on states to encourage all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the CRPD. I am actually very glad to see that this matter is currently taken up by the current Hate Crime Action Plan. Of course,neither the CRPD nor  I advocate criminal sanctions in enforcing this obligation. But it goes to show you that freedom of speech has certain limits, and that limit in relation to disability is not portray persons with disabilities in a negative light, inconsistent with the social model of disability and the CRPD. Immediately, we can understand how crucial this provision is in relation to the ‘benefit scroungers’ debate.

Based on Art. 8 CRPD, it simply is not convincing any more to claim that we will be violating the right to free speech by extending the protection of incitement to other categories, such as disability. The limits to free speech are being drawn, indirectly, towards protecting persons with disabilities.

So, my final point is this: the paradigm of protection in international human rights law has changed. The CRPD has ushered in a very different approach to the issue of human rights for persons with disabilities. Art. 16 CRPD demands a very comprehensive and effective protection against abuse and violence for persons with disabilities, whilst Art. 8 CRPD shows, indirectly, that some lines have to be drawn as to what can be contributed in public discourse about disability. This change in how we understand and protect the human rights of persons with disabilities should also benefit persons from other targeted groups, such as sexual orientation and gender identity.

 

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New Project: Big Society? Disabled People with learning disabilities and Civil Society

This is good!

Disability Research Forum

Austerity, cuts in services, rising debt and hate crime: could life get any worse for people with learning disabilities? A new project is looking at opportunities, possibilities, interconnections, resources and support in civil society occupied by people labeled with learning disabilities. Four university partners (Manchester Metropolitan University; The University of Sheffield; Northumbria University, and the University of Bristol) will work with three organisations of and for disabled people (Foundation for People with Learning Disabilities; Speak Up Self Advocacy and independent living consultants) who want to engage communities, promote inclusion and self-advocacy. In these times of Big Society and austerity we ask: how can people with learning disabilities live a good life?

You can follow the project via our blog: http://bigsocietydis.wordpress.com/ or on Twitter @BigSocietyDis

Contact: k.runswick-cole@mmu.ac.uk for more information.

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Slap on the wrist by the UN High Commissioner: Bedroom tax, disability, the social right to housing, the ECHR right to family life, judicial review

Now that the press release from the office of the UN High Commissioner on Human Rights has been released, it is perhaps a good time to fulfil my promise and develop my thoughts a bit more on the bedroom tax. For those of you interested in a wee bit more highbrow legal stuff, you can download my presentation at the SLS Conference here. However, this post will be like Emily Dickinson wrote, ‘tell all the truth but tell it slant’.

So I’ll start differently. The bedroom tax is an austerity measure, just like any other austerity measure adopted by countries in the Eurozone. The common feature of these measures is that they aim to reduce public spending by introducing cuts to social benefits. By introducing cuts to social benefits, the human rights which are connected to (and protected by) these benefits are infringed. When human rights are infringed, judicial (or constitutional, in other countries) review aims to examine how bad the infringement is, compared to the aim that the austerity measure serves. This is what proportionality is all about.

Judicial review in the UK is presented as this devilish, almost obscene judicial power, which does the unthinkable: it places government policy under scrutiny. However, judicial review under the HRA has to do precisely that: place government policy under scrutiny and examine whether the infringement to the human right in question is proportionate to the aim to be achieved by the government policy.

Robert Alexy has formulated two laws about how proportionality reasoning (balancing) works.

The first law of balancing states that the greater the degree of detriment to a right, the greater must be the importance of satisfying the public interest (or a competing right).

The second law of balancing states that the greater the degree of interference with a right, the greater must be the certainty of its underlying premises.

Let’s apply this reasoning to the bedroom tax. The estimated savings from the bedroom tax amount to roughly £500m for 2013-14, according to this. However, it is uncertain whether these savings will actually be achieved, according to press coverage, such as this. Given the uncertainty surrounding the underlying premises of the bedroom tax (i.e. the savings of £500m), grave interferences with human rights cannot be justified. It is simple as that.

Now, I have to turn to the issue of the grave interference with the human right. If the bedroom tax is simply seen as an interference with the human right to property (under Art. 1 Prot. 1), then the reduction in the housing benefit may not be easily regarded as grave. It will depend on the actual circumstances of each case.

What the Bedroom Tax judgment did not do however (available here) was to consider the potential risk of infringement to other human rights, such as the right to private and family life. The link between the social right to housing and the right to private and family life has been highlighted in the Yordanova v Bulgaria case of the ECtHR (see an excellent comment here). Although Yordanova is about forced evictions of Roma, some parts of the judicial reasoning are highly relevant to persons with disability affected by the bedroom tax. The threat of homelessness and the background of social deprivation constitute a grave interference with the right to private and family life.

So, the bottom line is: Why do Parliament and judiciary have to wait for an international slap on the wrist to acknowledge that current policy is simply not designed well? Why do we have to wait for the UN High Commissioner to give us a nudge in the right direction? And more importantly, will we actually listen? 

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Austerity Measures in the Eurozone and the Bedroom Tax

Just ahead of my presentation at the 2013 Society of Legal Scholars Conference today in lovely Edinburgh, I’m writing this very short blog, which I plan to update, hopefully having received feedback from conference delegates.

My basic contention is that austerity measures impinge on socio-economic rights. As such, interferences have to be justified by recourse to proportionality. In other words, e.g. salaries for public employees are slashed by 10%, in order to reduce public spending and save the economy. How can we make a rational argument that 10% is proportional and not arbitrary? In order to answer this question, we need to look into theory as well as current practice of constitutional review.

What is happening right now in Portugal has not really received any good, in depth, coverage by the press. Since 2012, the Portuguese Constitutional Court has been regularly called to review austerity measures and has considered some of them to be in violation of the constitutional principle of proportionality.

So, just for now, as a teaser for a more detailed blog, how can the Portuguese approach compare to the judicial review of the bedroom tax? Has there been adequate examination of proportionality or has there been simple deference to government policy? And actually, how far are UK judges supposed to go when reviewing austerity measures?

I think we can find a principled approach to this issue, based on the writings of Robert Alexy and his laws of Balancing. More of that in the next blog.

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