Creating a fairer Britain
The UK Government needs to make sure that the laws we have at home meet the Convention’s requirements. If it does not, then it should change the laws. There are a number of ways that you can hold the Government to account if our laws or their implementation don’t meet the requirements of the Convention. You can find out more about this in Part 3.
If a disabled person believes that their rights under the Convention have been breached, then they cannot take the government or any other public body to a court, as the Convention is not directly part of our domestic law. However, the Convention can play an important supporting role when cases are taken to court about the Human Rights Act, disability discrimination legislation and, in particular, the Equality Duty.
The Human Rights Act is a law passed in the UK in 1998 that says public authorities must respect the human rights of everyone in Britain and Northern Ireland. The rights it protects are based on an agreement called the European Convention on Human Rights. That agreement includes some of the same rights as the disability Convention, for example the right to life and the right to a fair trial. However, the disability Convention also includes a broader range of rights, in particular rights that cover social, cultural and economic issues such as the right to housing and the right to work.
The Disability Convention sets out in more detail the steps that the government must put in place to ensure disabled people’s human rights are protected and promoted. For example, Article 8 of the Human Rights Act protects people’s right to private and family life, including the right to take decisions about their own lives and to participate in the community. Article 19 of the disability Convention sets out some of the steps which government must take to ensure that disabled people enjoy this right, for example by ensuring disabled people have an equal choice to decide where and with whom they live and that they have the support needed to live independently in the community.
Now when public authorities are thinking about how they support human rights they should also look at the Convention. While you can’t bring a case directly in the UK courts under the Convention, the Disability Convention can be used as an interpretative tool in relation to the Human Rights Act. When interpreting the Human Rights Act, courts should take account of international law as well as decisions of the European Court of Human Rights. In 2009, the European Court of Human Rights referred to the Convention in a decision about whether disabled people were treated unfairly. The full name of this case is Glor v Switzerland (Application no. 13444/04, judgment on 30 April 2009)¹.
Disability discrimination law says that disabled people should be free from discrimination and harassment and that employers, educational establishments and service providers in Britain must make reasonable adjustments to ensure disabled people can access their services and fully participate. The Convention could be used to interpret some concepts, for example it could help interpret what is meant by 'reasonable adjustment' in cases which would reinforce their purpose as being to remove barriers towards full participation.
Equality legislation also places a duty on public authorities to promote disability equality in everything they do. This guide was written in May 2010. This duty is called the Disability Equality Duty (from the 1995 Disability Discrimination Act as amended). Soon it will be the Public Sector Equality Duty (from the 2010 Equality Act) which will also cover equality in relation to age, sexual orientation, sex, race, religion and belief, pregnancy and maternity, and gender reassignment. We think it will be the Public Sector Equality Duty from April 2011 although government has yet to decide the exact date. If you're not sure contact the Equality and Human Rights Commission to find out. In this guide we call it the ‘Equality Duty’.
If public authorities are not meeting their Equality Duty, then the Equality and Human Rights Commission can take legal steps to make sure they do so, or disabled people can challenge them in court (through something called ‘judicial review’). Public authorities will be helped in meeting their Equality Duty if they use the standards set out in the Convention.
The Disability Convention can also be used as an interpretative tool in relation to disability discrimination legal cases.
There are many other laws in Britain that already support disabled people’s human rights, for example the Chronically Sick and Disabled Persons Act and the Mental Capacity Act. These laws, and the way public authorities implement them, now need to be measured against the requirements of the Convention.
The use of the Convention, together with the Human Rights Act and equality legislation in advocacy and legal cases, could help strengthen disabled people’s rights.
¹ For an unofficial translation into English, go to http://www.mdac.info/images/page_image/Glor_v_Switzerland_en.doc