The UN Convention on the Rights of Persons with Disabilities was ratified by the UK on 8th June 2009. With the possible exception of European treaties, the CRPD is the most important international treaty on disability. To put international instruments in context, see the introduction.
- This United Nations convention sets out wide-ranging rights for people with disabilities.
- One cannot sue someone in the UK specifically for having breached the Convention. One would want to base one’s legal claim on a British law such as the Equality Act 2010, and then argue that the Convention influences how that law should be interpreted.
- The Convention is also useful in campaigning for change, and voluntary organisations and individuals can get involved in the monitoring process headed by the UN Committee on the Rights of Persons with Disabilities (‘UN Disability Committee’).
- However the present government has 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’ by the United Kingdom 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
The convention text and news are available on the UN website.
EHRC guide and examples
The Equality and Human Rights Commission (EHRC) has produced a very useful guide to the CRPD (link to EHRC website), updated July 2017, called The United Nations Convention on the Rights of People with Disabilities What does it mean for you?
To pick out just a few points from the EHRC guide:
- As regards Article 5 of the CRPD, on equality and non-discrimination, the EHRC comments that the Convention is broader than current discrimination law in Great Britain. The guide says for example the Convention 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 can be used to promote disability equality training for policy-makers and decision-makers (local and national).
- Under Article 11, which relates to situations of risk and humanitarian emergencies, the EHRC guide gives 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.
- Under Article 13, there is stress on the importance of appropriate support for participating in court proceedings.
- Article 25, on health, talks about govenments ensuring that impairments and health conditions are identified early and that people get early support. This is very important for stammering, because with appropriate intervention at the pre-school stage stammering can very often disappear.
This EHRC guide, under the heading ‘What obligations does the Convention place on the government?’, says that in the case of some (only 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, but 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 Convention is not directly enforceable in the UK courts (Britlief v Birmingham City Council (bailii.org), EAT, 2019). UK anti-discrimination legislation – most importantly the Equality Act 2010 – remains the main legislation one wants to fall within.
However the following are some ways the Convention can have practical relevance. In summary, the Convention can be useful in arguing before the courts for particular interpretations of the law. It may not be so useful at present in arguing for changes in central government policy – given that the UK government has rejected the report of a UN inquiry (below) which found that welfare reforms constituted grave or systematic violations of the Convention. Some local authorities may be more responsive to arguments based on the CRPD.
Interpreting UK law
In more detail, the courts have said that where a UK statute post-dates an international treaty (the Equality Act 2010 postdates 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 courts have said 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).
Burnip v Birmingham City Council, Court of Appeal, 2012.
UK housing benefit rules were found to infringe Article 14 of the European Convention of 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 Convention may be seen as part of their compliance with the public equality duty.
Interpreting European Union law, to be applied in the UK
The Court of Justice of the European Union (CJEU) 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 CJEU has used the Convention in interpreting this directive (in the Ring case below), and the UK and its courts are bound by the directive as interpreted by the CJEU.
Ring v Dansk almennyttigt Boligselskab, 2013, Court of Justice of the European Union (CJEU)
The CJEU 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 CJEU took the UN Convention 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 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).
The CRPD could be used when making a complaint against a public authority, either through internal procedures or through inspectorates such as the Care Quality Commission or Ombudsman.
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 is undergoing a CRPD examination process in 2017, see the EHRC page on the UN Convention. There are various links on that page, but in August 2017 the UN Disability Committee issued a highly critical report on the UK (CRPD/C/GBR/CO/1), making numerous recommendations.
The government is supposed to report to the Committee every four years. Other organisations such as the Equality and Human Rights Commission and charities can also produce shadow reports to be fed though to the UN Disability Committee. Reports from outside the govenment will be 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 reports, see the EHRC guide to the UN Convention (link to EHRC) under the heading ‘How can I get involved in monitoring and reporting?’
Advocating for change
The Convention can be used in advocating for changes to laws and policies, locally and nationally. Having ratified the Convention, the government is supposed to take practical action to make its rights real.
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 guide to the Convention (link to 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 because of the requirement to have exhausted all rememdies 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 Committee’s first inquiry has been 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.
The UK government has rejected the report and seems to propose to do nothing. The Equality and Human Rights Commission and others wrote to the Minister in December 2016 expressing their concern about this.
On 26th February 2009 the UK Government also signed the Optional Protocol to the CRPD (link to 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 (e.g. 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 Convention subject to certain reservations and ‘interpretative declarations’. Details are set out in on this treaties.un.org page (click on ‘United Kingdom of Great Britain and Northern Ireland’). The currenty reservations and declarations relate to:
- exemption for employment in the armed services,
- special schools, and
- immigration rules.