[Update 01/08/2012: Neil Crowther drew to my attention that a subsequent case relating to housing benefit, Burnip v Birmingham City Council & Anor (Rev 1), rejected the approach of the court in NM v Islington towards the CRPD, discussed below. In Burnip the court held that the CRPD was a legally binding treaty, and if there was any uncertainty in how domestic anti-discrimination laws should be interpreted, he would use the CRPD as an aid to interpretation. The ruling in Burnip is reassuring for supporters of the CRPD, but less reassuring are the efforts of the government’s own counsel to attempt to marginalise the CRPD’s relevance by reference to its maturity and chronology (see paragraphs 19-22). It seems extraordinary, and rather depressing, that a government should seek to distance itself in this way from a treaty that it has itself ratified!]
- In UK law we operate what is called a ‘dualist legal system’, which means that if the state signs and international treaty it cannot generally be relied upon and enforced by the subjects of that state in domestic courts, unless it is ‘incorporated’ through additional legislation. The Human Rights Act 1998 (HRA) is an example of ‘incorporating’ an international treaty (the European Convention on Human Rights, ‘the Convention’) into domestic law, so it can be relied upon in court. I say ‘generally’ because there’s all kinds of complicated detail, in particular around EU law, and also courts may use a treaty to determine what a state ‘intended’ a given statute to mean if it is ambiguous. And so, the court said of the CRPD that it “…is an unincorporated international treaty and so does not have direct effect in English law. It came into force and was ratified by the United Kingdom after the NHSCCA was enacted, so it cannot act as a potential aid to interpretation of that statute in cases of ambiguity.”  (if you’re fascinated by this dualist/monist malarkey, there are some interesting discussions in books by Henkin and Shelton)
- Next, counsel for NM tried to argue that the CRPD should be used as an aid to interpretation of the Convention rights (specifically, Articles 5, 8 and 14) which can be relied upon in judicial review claims because of the HRA. Although this would be novel in some respects, the Convention is a ‘living instrument’ and interpretation is supposed to move with the values and needs of the times (there’s a handy list of cases expressing this at paragraph 100). The court agreed that in principle that the CRPD could be used to interpret Convention rights, perhaps when enough European states had ratified it (a list of those that have not is given at 103), or when they had brought their own domestic laws and policies in line with it (I doubt if any have achieved this), or if it was “taken to be a leading international instrument establishing an appropriate standard against which to judge the conduct of member states of the Council of Europe” . The court concluded that the CRPD had “not yet acquired this significance”.
- The court acknowledged that the CRPD has been relied upon by the European Court of Human Rights (ECtHR) in several cases, and listed a few, but said that the CRPD itself was not ‘determinative’ in those cases. The court found that ‘Domestic authority on the point is still more exiguous’, essentially finding that where the CRPD had been mentioned it was more a sort of ‘pat on the back’ for a ruling that had already been arrived at in other ways.
- And so, the court concluded that ” I would be very hesitant to conclude that Articles 19 and 26 of the CRPD should be taken to inform the meaning and effect of any of Articles 5, 8 or 14 of the ECHR in the direct and extensive way suggested by [NM’s counsel]”
‘There is a risk that psychiatric professionals simply write the most challenging aspects of the CRPD off as absurd, or adopt a somewhat hurt and defensive posture. That would be unfortunate as the human rights principles on which the CRPD is based are sound, and are likely to be broadly shared by most members of the psychiatric professions. It also ignores the problem that the existing justiﬁcations for compulsion are not particularly clearly articulated in a way that takes into account the political and social changes of the past 30 years. Aspects of the CRPD may seem extreme, but they are the result of a consistent approach to human rights in this area. As such, they warrant the intellectual engagement of psychiatric professionals. If there are reservations about the approach propounded for the CRPD, it is for users, practitioners and others in the ﬁeld to come up with an equally clear and intellectually defensible alternative.
Among the community of international human rights lawyers, there is a perception that although all treaty bodies are legally equal, in reality some are more equal than others.
It is not a coincidence that, in international law circles, the most respected of the treaty bodies has historically been the Human Rights Committee, whose members have included some of the most eminent and highly respected international lawyers of their generation(s) and the quality of the Committee’s legal analysis has been vastly superior to that of some of the other treaty bodies. However regrettable this may be, a treaty body such as the Disability Rights Committee, which has a large number of service users as Committee members, will struggle to dispel doubts among states parties about the (il)legitimacy of how they carry out their functions.
4.36 At consultation, a principle based on independent living was often seen as a means of establishing enforceable legal rights to services. In our view, this is not the purpose of statutory principles. Furthermore, this concept is covered adequately by Articles 8 and 19 of the United Nations Convention on the Rights of Persons with Disabilities. We agree that a principle based on an assumption of home-based living would not be suitable to be included as a principle in the statute. The key issue should be the person’s wishes and feelings, and in effect this principle could skew choice in one particular direction.
4.9 A small majority of consultees who expressed a view argued that the statute should include a principle based on independent living, often on the basis that it would ensure rights to full citizenship for disabled people. However, others argued that independent living is too subjective, and could clash with the choice and control principle if, for example, a disabled person wants to be cared for in a communal setting.
- Baroness Jane Campbell wrote about the danger of undoing the progress the disabled people’s movement have achieved over the last 30 years for The Guardian. Her piece emphasises the fragility of independence in relation to bureaucratic authority:
If my local authority cuts my care package or demands I transfer to NHS care (because they regard using a ventilator as the trigger for health services), I lose control of my life. I might have to leave parliament, or give up work altogether (because I need social care direct payments to do everything, from eating a sandwich to delivering a speech). I am only a few bureaucratic decisions away from returning to the inequality I endured at 18. It wouldn’t take long to transform all my relationships with my colleagues, partner, family, friends into one which gives little or nothing to anyone. Everyone loses.
- Neil Crowther worked as a specialist advisor on the JCHR inquiry, and wrote about the JCHR report here, he comments:
…what was revealing about the Inquiry was how little awareness, understanding and employment of the Convention there is in the UK. Only a small minority of witnesses made reference to the Convention in their evidence, despite the Inquiry being conducted by the Parliamentary human rights Committee and the terms of reference clearly framing the inquiry as being about Article 19 of the UNCRPD. As the report states, the Convention has more teeth than people – including the Minister for Disabled People – realise.
- And the Mental Disability Advocacy Centre in their blog on the report also wrote that ‘the CRPD is hard law, not soft law’, commenting:
“This finding is of international importance”, said Oliver Lewis, MDAC Executive Director, “Our experience is that many governments are of the view that the CRPD is nothing more than a policy nicety, rather than a treaty which sets out legal obligations which governments must fulfil.”