The UN Convention on the Rights of Persons with Disabilities was ratified by the UK in 2009. It is the main treaty specifically on disability. It can potentially influence UK court decisions, either directly or through EU law or the European Convention on Human Rights.
To put international instruments in context, see European Union, human rights and UN.
- This United Nations convention sets out wide-ranging rights for people with disabilities.
- One cannot sue someone in the UK specifically for breaching the Convention. One would base one’s claim on a British law such as the Equality Act 2010 and, so far as this law is ambiguous or uncertain, argue that the Convention influences how the UK law should be interpreted.
- The influence of the Convention has been noticeable in EU law (eg social model of disability) which is still important in UK courts after Brexit, and in the European Convention on Human Rights (reasonable adjustments, personal autonomy) which is also relevant for UK courts.
- The Convention can also be useful in campaigning for change. For example voluntary organisations and individuals can get involved in the monitoring process, such as through writing a ‘shadow report’.
- However the UK government rejected the report of an inquiry by the UN Disability Committee in October 2016 which found “grave or systematic violations of the rights of persons with disabilities” in respect of welfare reforms.
- Also, in August 2017 the UN Disability Committee published a highly critical report on the UK: below Monitoring by UN disability committee.
Text of the Convention
EHRC guide and examples
The Equality and Human Rights Commission (EHRC) has produced a very useful guide to the CRPD: The United Nations Convention on the Rights of Persons with Disabilities: what does it mean for you? (EHRC website), updated July 2017.
To pick out just a few points from this EHRC guide:
- On Article 5 of the CRPD, equality and non-discrimination, EHRC comments that the Convention is broader than current discrimination law in Great Britain. The guide says that for example the CRPD might protect some who do not satisfy the strict definition of ‘disability’ in the Equality Act, such as people with a one-off but severe mental health condition lasting less than 12 months.
- Article 8, awareness-raising, can be used to promote disability equality training for policy-makers and decision-makers, local and national.
- Under Article 11, “Situations of risk and humanitarian emergencies”, the EHRC gives as an example that it would not be good enough to set up a helpline where people can ask for information or help if it is not accessible for groups of disabled people, including people with speech impairments.
- Article 13, “Access to justice”, and the guide stress the importance of appropriate support for participating in court proceedings.
- Article 25, “Health”, says governments “should ensure impairments and health conditions are identified early and that people get early support”. This is very important for stammering, because speech therapy can be more effective at the pre-school stage.
This EHRC guide, under the heading “What obligations does the Convention place on governments?”, says that in the case of some rights, namely economic, social and cultural rights, the CRPD recognises that many countries may not be able to take steps to make them real for all disabled people immediately. However the government should still make every effort, using all available resources, to make sure disabled people enjoy their human rights as quickly as possible. Also the UN is likely to expect a relatively wealthy country like Britain to be doing better than a developing country.
Does the CRPD have teeth?
The CRPD is not directly enforceable in the UK courts (Britlief v Birmingham City Council (bailii.org), EAT, 2019) subject to the possible EU law argument below. UK anti-discrimination legislation – most importantly the Equality Act 2010 – remains the main legislation one wants to rely on.
However the following are some ways in which the CRPD can have practical relevance. In summary, the CRPD can potentially be useful in arguing before the UK courts for particular interpretations of the law, but also has influence through EU law and the European Convention on Human Rights. The CRPD may not be so useful at present in arguing for changes in central government policy – given the UK government’s negative response to the 2016 UN Disability Committee inquiry (below), and to the Committee’s 2017 monitoring report which was highly critical of the UK. Some local authorities may be more responsive to arguments based on the CRPD.
Interpreting UK law
The CRPD can be relevant in interpreting and applying UK legislation so far as it is ambiguous or uncertain, including the Equality Act 2010: for example is the impairment a ‘disability’, is a particular adjustment ‘reasonable’, has the employer etc shown justification?
In more detail, the UK courts have said that where a UK statute post-dates an international treaty (the Equality Act 2010 post-dates the CRPD) words in the statute are to be interpreted, if they are reasonably capable of bearing such a meaning, as intended to carry out the treaty obligation and not to be inconsistent with it. Accordingly the CRPD can be used if there is ambiguity or uncertainty in the UK statutory provision. Also the UK courts have said that great care must be taken in deploying provisions of a treaty which set out broad and basic principles as determinative tools for the interpretation of a concrete measure such as a particular provision of a UK statute. Provisions which are aspirational cannot qualify the clear language of primary legislation. (R (Davey) v Oxfordshire County Council (bailii.org) at para 62, Court of Appeal, 2017; Britlief v Birmingham City Council (bailii.org), EAT, 2019).
Article 13 of the CRPD (Access to justice) is one of the provisions underpinning a judge’s duty to make reasonable adjustments: see for example the NI Court of Appeal judgment in Galo v Bombadier Aerospace.
Burnip v Birmingham City Council, Court of Appeal, 2012.
UK housing benefit rules were found to infringe Article 14 of the European Convention on Human Rights. The Court of Appeal said that had it been uncertain whether Article 14 applies (which it was not), the CRPD would have resolved the uncertainty in favour of the claimants.
Further, for public authorities, having due regard to the CRPD may be seen as part of their compliance with the public equality duty.
Interpreting European Union law, to be applied in the UK
The EU Court of Justice (ECJ) has said that, so far as possible, the Framework Employment Directive (with which Equality Act 2010 must comply) must be interpreted consistently with the CRPD. The ECJ has used the CRPD in interpreting the directive (in the Ring case below), and the directive as interpreted by the ECJ continues to be important in UK after the end of 2020, ie after Brexit.
Ring v Dansk almennyttigt Boligselskab, EU Court of Justice (ECJ), 2013
The ECJ emphasised the importance of the CRPD which the EU ratified in 2010. The court said that the provisions of the CRPD are now an integral part of the European Union legal order. The EU’s Framework Employment Directive must, as far as possible, be interpreted in a way that is consistent with the CRPD.
In the present case, the ECJ took the CRPD into account in interpreting both the meaning of disability (in particular so as to take into account the social model of disability), and the duty to make reasonable adjustments.
Where CRPD influences the interpretation of the Framework Employment Directive, the influence feeding through to UK legislation is not limited to where the UK legislation is ambiguous. For example, under the Marleasing principle (still relevant after Brexit) the wording of a UK statute can often be rewritten to change its meaning so as to comply with the Directive: eg Britlief v Birmingham City Council (bailii.org), EAT, 2019 at paras 41-42.
There is a technical note below on the relevance post-Brexit of SI 2009/1181 which designates the CRPD as one of the “Community Treaties”: Technical note: Post-Brexit relevance of CRPD as an EU treaty?
European Convention on Human Rights
The European Court of Human Rights in Strasbourg has taken the CRPD into account in disability cases, including:
- to interpret Article 14 of the European Convention on Human Rights as including a right to reasonable adjustments, and
- to support the importance of personal automony for disabled people under Article 8 of the European Convention.
The European Convention on Human Rights, including decisions of the Strasbourg court such as these, can have important effects on UK law through the Human Rights Act 1998. This is not affected by Brexit.
Complaints against public authorities
The CRPD could be used when making a complaint against a public authority, either through the authority’s internal procedures or through inspectorates such as the Care Quality Commission or Ombudsmen.
Monitoring by UN disability committee
Countries’ compliance with the CRPD is assessed by a UN Committee on the Rights of Persons with Disabilities (‘UN Disability Committee’). The committee can make recommendations where it finds deficiencies.
The UK last underwent a CRPD examination process in 2017. In August 2017 the UN Disability Committee issued a highly critical report on the UK (CRPD/C/GBR/CO/1), making numerous recommendations. The Equality and Human Rights Commission (EHRC) reported 12 months later that there had been “little progress”: Progress on disability rights in the United Kingdom (EHRC website), October 2018.
There is more on the EHRC’s page about the CRPD UN Convention on the Rights of Persons with Disabilities (EHRC website) and on the United Nations’ UK periodic review (ohchr.org) page.
The government is supposed to report to the UN Disability Committee every four years. Other organisations such as the EHRC and charities can also produce shadow reports to be fed through to the Committee. Reports from outside the government are particularly important to the Committee in reaching its conclusions. The EHRC says that producing a ‘shadow report’ is one of the most effective ways of bringing about change for disabled people. For guidance on producing a shadow report, see the EHRC’s The United Nations Convention on the Rights of Persons with Disabilities: what does it mean for you? (EHRC website) particularly pages 57-65.
Advocating for change
The CRPD can be used in advocating for changes to laws and policies, locally and nationally, whether through shadow reports (see previous paragraph) or otherwise. Having ratified the CRPD, the government is supposed to take practical action to make its rights real.
The CRPD may not be so useful at present in arguing for changes in central government policy – given the UK government’s negative response to a 2016 UN Disability Committee inquiry (below), and to the Committee’s 2017 monitoring report (above) which was highly critical of the UK. Some local authorities may be more responsive to arguments based on the CRPD.
Individual petition to the UN Disability Committee
An individual (or group) can petition the UN Disability Committee if they consider the government (but not other authorities) has breached their CRPD rights and domestic remedies have been exhausted. There is more on this in the EHRC’s The United Nations Convention on the Rights of Persons with Disabilities: what does it mean for you? (EHRC website) under the heading “How do I make a complaint about a violation of the Convention?”
This option to make an individual complaint is available under the Optional Protocol which the UK has ratified. However the scope of this option is limited by the requirement to have exhausted all remedies within the UK.
Inquiry by UN Disability Committee
Also under the Optional Protocol, the UN Disability Committee is able to conduct an inquiry if it receives reliable information indicating grave or systematic violations by a State of Convention rights.
Inquiry report on UK, October 2016
The UN Disability Committee’s first inquiry was in respect of the UK. In October 2016 the Committee found “grave or systematic violations of the rights of persons with disabilities” by the United Kingdom in respect of welfare reforms from 2010 onward.
There is a summary in this BBC report, and the full inquiry report and UK government response are on ohchr.org. The UK government rejected the report and proposed to take no action. There was a follow-up report by the EHRC in 2018: Progress on disability rights in the United Kingdom (ERHC website).
As well as the CRPD itself, on 26th February 2009 the UK Government signed the Optional Protocol to the CRPD (ohchr.org).
This Protocol establishes two of the procedures mentioned above, namely bringing an individual petition to the UN Disability Committee claiming that the State (eg the UK) has breached their Convention rights, and conducting an inquiry if the Committee receives reliable information indicating grave or systematic violations.
Ratifications and reservations by UK
The UK ratified the CRPD subject to some reservations and ‘interpretative declarations’. Details are set out in on this treaties.un.org page under the “United Kingdom of Great Britain and Northern Ireland” heading. The current reservations and declarations relate to:
- exemption for employment in the armed services,
- special schools, and
- immigration rules.
Technical note: Post-Brexit relevance of CRPD as an EU treaty?
Brexit: worrying times for disabled people (lag.org.uk), 2019, points out that SI 2009/1181 designates the CRPD as one of the “Community Treaties” under the European Communities Act 1972.
However the Employment Appeal Tribunal in Britlief v Birmingham City Council (bailii.org), EAT, 2019 held that despite this SI, the CRPD does not have direct effect in the UK. So one cannot claim in a UK court simply for breach of the CRPD. Among other things the EAT pointed out (at para 48) that the European Court of Justice has itself held that the provisions of the CRPD are not unconditional and sufficiently precise to have direct effect in European Union law.
Even so, SI 2009/1181 potentially helps the argument – even after Brexit – that the CRPD should be taken into account when interpreting the Framework Employment Directive (above Interpreting European Union law, to be applied in the UK). To my mind, although these things are not clear:
- The CRPD had effect in UK law (to the extent described in Britlief, basically where the Equality Act is ambiguous) as one of the EU Treaties before Brexit, under s.2(1) European Communities Act 1972.
- I would think this continues after Brexit under s.4 EU (Withdrawal) Act 2018. Personally I can’t see that s.4(2)(b) EU (Withdrawal) Act 2018 requires the relevant CRPD right to have been recognised by a court before Brexit, because the CRPD is not an EU directive. Exceptionally the limitation in s.4(2)(b) would apply if one is using the CRPD to interpret an EU directive and arguing that the directive has direct effect (Brexit: Effect of EU law when interpreting Equality Act from 2021>Direct effect). However normally EU directives influence UK disability discrimination cases through the Marleasing principle rather than direct effect.