What would you do?

As a researcher, I was drawn to disability rights when I first read about the early sterilisation case law of the English courts. I developed a theoretical argument as to how to protect the rights of persons with disabilities under English law. As an academic, I am doing what I am supposed to do.

Then real life happens and kicks in the door of the ivory tower of research. The death of LB was such an event. How do I, as an academic, researcher and human being respond to this?

The central claims of my research is that we need more human rights for persons with disabilities in every single context of their daily lives. We need to enact the CRPD under UK law. We need to make every healthcare and social care professional accountable to human rights (if not by means of civil liability, then criminal liability). We need to develop awareness of persons with disabilities as bearers of rights, to which correspond correlative duties from all of us.

Faced with LB’s death, the best and most useful thing I can do is to do more research, which strengthens the central claims of my research.

I was planning, for a long time, to submit an abstract to the Art Historians Association Conference on Hogarth’s Scene in a Madhouse. Based on the social model of disability, I considered that a reading can be made of this engraving (or the painting on which the engravings are based) which depicts the disabling gaze in the interaction of the fashionable ladies and the inmates of the asylum. The powerpoint of the presentation is here. As the participants in the conference stream also noted, Hogarth is also ironically asking: Who is mad? What are those ‘normal’ ladies doing in a place like this? What folly is this?

Our current law and social practice, even after 300 years from Hogarth’s time, has not rendered such questions meaningless. We retain laws and practices which disable and disempower persons with disabilities. Time for change.

R.I.P. LB.

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The Disabled Body in Refugee Law

Yesterday I presented a paper at the Migration Law Network Conference ‘A Sea of Troubles’ at Birkbeck University. A wholehearted thanks go to Eddie Bruce-Jones, who was convening the stream and Rebecca Mallett and Katherine Runswick-Cole, for their insights as to how to conceptualise the disabled body. Their most recent work, an exciting monograph entitled Approaching Disability is forthcoming by Routledge.

My paper was entitled ‘The Disabled Body in Refugee Law’. The powerpoint slides are here. The rationale behind my paper was to apply some of the very exciting theories on disability and the body to refugee law. The claim of my paper was that, with a few exceptions, current refugee law and practice views asylum seekers with disabilities as abject. This in turn, mirrors deeply held social and legal practices about disability, which view disability either as tragedy or as something abject, despite the change that the social model of disability has introduced. The way forward in refugee law with regards to asylum seekers with disabilities is to recognise them as persons with potential and the ability to flourish. 

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Police duties towards persons with disabilities: Work in progress

Tomorrow, 11/02/14, I will be presenting a paper at the Disability Research Forum at Sheffield Hallam University. I want to thank Dr. Rebecca Mallett for having me. I have uploaded the powerpoint at Slideshare here.

This presentation is very much work in progress. Since I read the judgment in Finnigan I knew there was something that made me uneasy about this case, but I could not put my finger on it. I hope this paper and the discussion afterwards will clear things up in my head.

Below is a very short summary of the points I am going to raise in my paper.

This paper examines several recent judgments which relate to duties of the police towards persons with disability. In Dordevic v Croatia, available here, the ECtHR held that the police should protect persons with disabilities from hate crime, even if the instances of hate crime are low level harassment. Failure to do so violates Art. 3 ECHR.

English case law has also provided some examples of a disability-sensitive approach to policing. The well known case of ZH v the Commissioner of the Police for the Metropolis, confirmed by the Court of Appeal, available here, has held that the police must offer reasonable accommodations when carrying out their police duties towards persons with disabilities. In that case, the police acted on misguided emergency and did not consult with carers as to how to protect an autistic teenager from falling into a pool. The subsequent restraint of the autistic person left him with post-traumatic stress disorder and exacerbated his epilepsy. The Court of Appeal affirmed that the actions of the police constituted assault and battery, false imprisonment, failed to provide reasonable accommodations and violated Articles 3,5 and 8 of the ECHR. Impressive #fail.

In the case of Finnigan v Chief Constable of Northumbria, available here, the disability-sensitive approach is confirmed. The police need to revise their procedures, in accordance with their equality duty, and provide reasonable accommodations to persons with disabilities, otherwise this will constitute unlawful discrimination. The police conducted a number of house searches in the appellant’s home, who was D/deaf. Even though the appellant preferred to use British Sign Language, he could also communicate through other means. On the facts of the case therefore, the appellant did not suffer any detriment from not having been provided with reasonable accommodation (i.e. a BSL interpreter), so his appeal was dismissed.

The claim i will be making in my presentation is that this line of reasoning does not fully capture what is legally at stake here. If a person is Deaf, i.e. identifies him/herself as part of the Deaf community and uses BSL as the primary means of communication, not providing a BSL interpreter is discriminatory in the same way that a search on someone’s person cannot be conducted by a police officer of the opposite sex. Saying that the appellant did not suffer any detriment could be regarded as audist – an expression of audiocentric view of the case. Not providing a BSL interpreter for a Deaf person arguably also violates Art. 9 CRPD, by denying accessibility to alternative means of communication. This point is debatable, as the Deaf community does not necessarily view itself as disabled.

At any extent, even though I consider that Finnigan does not fully capture the issues relating to sign language and D/deafness, the importance of this case and the other two already mentioned is that they require the police to review their procedures. The best way forward is for the police not simply to examine what their equality duty requires, but to conform to best practices which eradicate any ableist or, in the case of Finnigan, audist effects.

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Disability and the Police

In contrast to my previous blogs, where I bored my (few) readers to death with my views on disability issues, in this blog I will not pontificate. But rather, I will ask questions, and return to the issue discussed here once I have done my research.

I was very intrigued last night to read a curious case: Finnigan v Northumbria Police [2013] EWCA Civ 1191, available here. The case concerns a deaf person whose house was searched by the police, without the presence of a BSL interpreter. The court held that the absence of a BSL interpreter did not disadvantage Finnigan in communicating with the police during the search.

The case got me thinking about two things:

1. What is the status of BSL under English law? Can deaf people claim that BSL is a minority language? If so, would there be an issue of direct discrimination, if the police, knowing that the person is deaf, chose not to bring in a BSL interpreter during a house search?

2. Best practice. Why aren’t police officers trained in BSL? Or are they?  By that I do not mean that all police officers should learn BSL, if that is deemed too expensive or impractical. But having one officer in each police station that knows BSL would be sensible. Could it then be argued that by not having at least one police officer who knows BSL, the police is indirectly discriminating against deaf people?

Over to you! Any comments or suggestions, very, very welcome!

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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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