3. My response to the EHRC's response.
Dear Mr Hammond,
Your reference - NS184
Thank you very much
for your reply to my e-mail of the 2nd October 2013. I would like to take you
up on your offer of further consultation made in the final paragraph of your
response.
I feel very frustrated
by the continued statement of the position that the EHRC is not a campaigning
body. It was particularly puzzling in this case when you continue in the same
sentence to point out the EHRC's responsibility to promote and where it can ensure
the harmonization of national legislation, regulations and practices with CRPD.
Having double checked with more than one source as to the degree of shared
meaning in these 2 words I will in future use the word "promote"
where I would in the my normal use of language use the word
"campaign".
It would be very
useful if you could point me towards the current report that details:
- Which UK Laws comply with the
CRPD.
- Which UK Laws are being
harmonised with the CRPD in the next year.
- Which UK Laws are being
harmonised with the CRPD in over a years time.
- Which UK Laws will not be
harmonised with the CRPD.
I would like to ask
what timescale has been accepted by the EHRC before compliance with Article 4
of the CRPD, The General Obligations under this convention, is required. How
many expected extra deaths have been accepted by the EHRC due to any delay in
full implementation of the CRPD?
My response, which I
have widely consulted on, is as follows.
1. I feel that
"promoting" an issue is a very subjective activity, as the process involves
a high level of personal judgement in deciding what to do and how to do that.
It is with this point in mind that I suggested that Lord Holmes, a Conservative
Peer, has a significant conflict of interest when it comes to fulfilling his
role. I fail to see how it could be possible for a Disability Commissioner
not to have a significant influence over the activities of the EHRC. He is a
Board member of the EHRC with input into the EHRC's strategic direction towards
Disabled People and has taken a political position on his elevation to the
House of Lords. How many times has he declared a conflict of interest and
withdrawn from discussions and votes?
Where the
organisational structure creates the perception that a Conflict of Interest
might occur I would expect a public body such as you to immediately remove the
danger of that apparent or perceived conflict being crystallized. How have the
EHRC done that? I believe that as we live in unprecedented times where a
Minister of Her Majesty's Government has repeatedly demonized sick and disabled
people, radical action is needed on your part to protect your independence and
objectivity.
It has been suggested
to me that I am proposing the exclusion from holding office at
the EHRC of anybody with a declared political affiliation. I would be intrigued
to hear your view on this and whether politics and human rights mix? I personally
believe Human Rights are an absolute and Politics is about making choices but I
await your views with interest.
2. The UNCRPD was
ratified by the UK Government in 2009. You state that you are now gathering
intelligence to identify key issues supported by evidence. To me that appears
to be 4 years after the event and too late for the 10,000+ people that have
died within 6 weeks of being made to submit to a work capability assessment.
Surely these key issues should have been identified before ratification of the
CRPD and I am dismayed to see that you do not see Equality of Opportunity as a
key issue. Without that, in my opinion, disabled people remain in their current
role as "pets" and without that you are accepting discrimination
against disabled because they are "different". I am awaiting confirmation
from the UN as to how they define Equality of Opportunity.
It is my personal
opinion that 4 years into the process, in my opinion, you should be preparing
to report to the UN how you have closed the compliance gap and how close
the UK is to being fully compliant? If the human rights of disabled people can
be said to converge with the rights afforded in the CRPD who took the decision
to deny disabled people their human rights as outlined in the CRPD when it was
ratified in 2009? Why have you not acted sooner to protect life? In my
opinion the "Respect for inherent dignity, individual autonomy including
the freedom to make one’s own choices, and independence of persons"
enshrined by the CRPD has been eroded by the Governments Welfare Reform Act
2012 and I remind you that the Government used the procedure of claiming
"financial privilege" to "steamroller" the sensible
concerns of the House of Lords. The "Bedroom Tax" is arguably an
attack on the individual autonomy of the UK's sick and disabled population so
I presume you have taken prompt action to investigate and if
necessary ensure the UN are aware that the UK are in breach of its
obligations under the CRPD? The flawed Work Capability Assessment arguably
shows no respect for individual peoples dignity so again I presume you have
taken prompt action to investigate and if necessary ensure the
UN are aware that the UK are in breach of its obligations under the CRPD? The
new upper rate mobility criteria of "Can stand and then move unaided more
than 20m" will, I believe, leave the UK in breach of its
obligations under general principles of the CRPD, specifically: a. Respect for
inherent dignity, individual autonomy including the freedom to make one’s own
choices, independence of persons - are you planning to wait until people take desperate
action following the loss of their independence before you take any
action?
I could go on. I
ask again, as you did not address this in my initial letter, do you agree with
Amnesty International UK who recognised that the Human Rights of Sick and Disabled
People are being abrogated by the UK Government?
3. I will start by
pointing out your duty to promote the CRPD. I will also reinforce my
dissatisfaction with your tactic of actively intervening only after Human
Rights have been violated. Unfortunately the links provided in your response
are largely broken so I am unable to read at the moment (can you please check
the links you gave external to your own website?) but again they seem to, in
the main, relate to instances where you are offering guidance on interpretation
of the law or instances where the UK Law has been challenged in court. Again, I
strongly argue this is too late. I believe that unless the EHRC act strongly
and urgently to neutralise bad and dangerous laws that could be used to deprive
citizens of their Human Rights, people will continue to die. Have you done
a risk assessment of your viable strategic options to identify which strategy
is likely to facilitate the minimum loss of life?
4. Sadly you failed to
acknowledge the 10,000 + deaths I referred to or the position of Amnesty
International UK. Perhaps you would be kind enough to do so? Failure to do so
suggests to me you have no concern about the human rights of sick and disabled
people.
It has been pointed
out to me that the EHRC is limited in what it can do. I would
be happy to discuss that with you in detail but I do not accept that position.
The UK seems to have a lot to say about alleged Human Rights abuses committed
by other countries. 10,000 deaths whilst being subjected to unreasonable mental
strain in my opinion is a human rights abuse, but the EHRC is quiet on that?
Somebody has to stand up for what is right and what is fair. I am saddened that
this does not appear to be one of the roles of the EHRC.
In conclusion, it
appears to me that your strategy of making strategic interventions after the
event is flawed. By allowing, without significant protest or legal challenge,
the UK Government to introduce laws that when exercised tend to deny Human
Rights to the UK population, you seem to be accepting that the only way you can
protect Human Rights is after they have been violated.
Do you not agree that
is too late?
Yours sincerely,
Ian M Jones
2. The EHRC's response to my initial query.
Sent by Email
Our Ref: NS184
29 October 2013
Dear Mr Jones,
Subject: Response to Email Dated 02.10.13
Thank you for your email of the 02 October 2013, in which you raise
your concerns about:
1.
The continuing involvement of
Lord Holmes as a Commissioner.
2.
The Commission’s role in
monitoring UNCRPD.
3.
The Commission’s failure to
campaign for the UNCRPD to be incorporated into UK Law
4.
The Commission’s work and
perception of Work capability Assessment.
1. As a severely head injured
disabled person I would like to protest in the strongest terms about the
continuing involvement of Lord Holmes as Disability Commissioner. I believe it
totally improper for anybody with a political allegiance to be in this
position. Your treatment of disabled people may well be prejudiced by any
political bias your disability commissioner displays.
The Code of Conduct
requires that Commissioners will provide knowledgeable, impartial and balanced
perspectives on a range of sensitive and complex issues and will comply with
the Board’s rules handling conflicts of interest. It also includes the requirement “not use
information gained in the course of their public service to promote their
private interests, or those of connected persons, firms, businesses or other
organisations”.
Commissioners who are peers
are also covered by the Addison Rules, which state:
When issues affecting the EHRC arise in Parliament, the present
Minister and Government of the day generally are alone responsible to
Parliament. This means that the
Commission cannot use the peer to influence Parliament, other than through the
formally recognised channels.
Equally, as laid out in the Statutes, Boards are free to conduct
their day to day administration without the intervention of Parliament or
Ministers, except where otherwise provided. If
Commissioners were to divulge the day to day operations of the Commission, then
they would be in breach of this the Statutes.
There
is no duty on the Commissioner to answer questions put to him during debate in
Parliament, which means that the Commissioner can abstain from a Parliamentary
or Commission discussion if the following should arise:
a. A
‘conflict of interest’: involves a conflict between the public duty and private
interests of a public appointee, in which the public appointee has
private-capacity interests which could improperly influence the performance of
their official duties and responsibilities.
b. An apparent or perceived conflict of
interest: Where it appears that
a public official’s private interests could improperly influence the
performance of their duties but this is not in fact the case.
c. A potential conflict of interest:
arises where a public official has private interests which are such that a
conflict of interest would arise if the official were to become involved in
relevant (i.e. conflicting) official responsibilities in the future.
In considering whether a conflict of interest may
exist, the Commission would consider: “Does
the issue create (whether actual or perceived by a fair-minded person) an
incentive for the member to act in a way that may not be in the best interests
of the Commission?”
However,
it should be noted that the identification of a ‘conflict of interest’ does not
mean that corruption or some other abuse of public office has or will occur.
In the majority of cases, a declaration of
interest, and abstaining from the issue at hand would be considered sufficient,
unless it was felt that the frequency, at which the Commissioner had to abstain
from discussions or decisions, significantly impaired their ability to fulfil
their role.
2. The UNCRPD has been
marginalised by not being written into UK Law. The UN have had to send in a
Special Rapporteur, Raquel Rolnik to point out problems with the bedroom tax
(66% of those affected by it have a disabled family member) but I haven't heard
any comment from Lord Holmes or the EHRC on this subject. It appears to me the
UN are having to monitor the implementation of the UNCRPD because Lord Holmes
is refusing to! Do you have any comment on this?
The Commission is active in
monitoring the harmonisation and implementation of English and Welsh (and GB
wide) law and policy with CRPD, and does this separately and independently of
the UN who also have the duty to monitor the convention through the UN
Committee on the Rights of Persons with Disabilities.
Accordingly, we are gathering
intelligence from a wide range of academic, statistical and legal sources and
asking the views of disabled people and their organisations so we can identify
key issues, supported by a strong evidence base. This is so we can compile a
list of issues with our partners in the UK Independent Monitoring mechanism of
CRPD (these are the Scottish Human Rights Commission, the Equality Commission
for Northern Ireland and the Northern Ireland Human Rights Commission) to put
to the UN Committee when it commences its examination of the UK in 2014.
Also we seek to harmonise domestic
law and policy with CRPD. To give some recent examples, the Commission has
intervened in several strategic judicial reviews arguing that the CRPD should
be used as a tool for applying the Public Sector Equality Duty, when there may
be adverse impacts on disabled people. These judicial reviews concerned the
closure of the Independent Living Fund and changes to housing benefit (for
example ‘the spare room subsidy’ in the case of R v
Secretary of State for Work and Pensions). These cases are now subject to appeal.
We also pay regard to CRPD in our
response to government consultations, most recently on Personal Independence
Payments and legal aid reform and will do so in our forthcoming work on the
Children and Families Bill.
We met with and discussed these
issues with the Special Rapporteur on Adequate Housing, as we do with all
rapporteurs who visit the UK, as part of our role as a national human rights
institution. It is important to stress that, as the UN clarified; she visited
the UK on the basis of a standing invitation from the UK government in order to
discuss a range of housing-related issues in the UK.
3. Why are you not campaigning for
the UNCRPD to be incorporated into UK law in the way the ECHR is? I believe
Scope will be doing just this!
The Commission is not a campaigning body but it has the responsibility to promote and, where it can,
ensure the harmonization of national legislation, regulations and practices
with CRPD and their effective implementation.
Therefore we:
·
Make strategic legal interventions, for
example in the judicial reviews referred to above.
·
Are continuing our ambitious follow up
programme to the Homecare and Disability Harassment Inquiries (e.g. by putting
on a major training event for Homecare providers to ensure that human rights
are integrated in frontline practice and publishing guidance for providers and
commissioners).
·
Respond to government consultations with
evidence-based policies that reflect CRPD.
To get a better idea of the work that we continue to do, you may like to
explore the following links, which touch on some of our CRPD-related
activities:
You may also be interested to know
that the Parliamentary Joint Commission on Human Rights discussed the legal
status of the UNCRPD in their report “The Implementation of the Right of
Disabled People to Independent Living” published in July 2012. The report can
be found at:
4/ 10,000+ people have died within 6 weeks of being subjected to a
work capability assessment. Don't you care? Surely their human rights are being
abused by this government! Amnesty International agreed at their AGM this year
that the human rights of disabled people in the UK are being abrogated. Do you
disagree with them?
In addition to responding to Government consultation on Work Capability
Assessment, we have also supported cases that address a failure to consider
reasonable adjustment / access in relation to the benefits assessment process,
for instance regarding the Government’s introduction of size criteria
(under-occupancy) for working age Housing Benefit claimants living in the
social rented sector and also the Independent Living Fund. The Commission
agreed to intervene in the case of R v Secretary of State
for Work and Pensions, the unsuccessful judicial
review challenge to criteria introduced by the Housing Benefit (Amendment)
Regulations 2012.
I hope
this answers your questions. If you have
any further concerns or questions, please do not hesitate to consult us again.
Yours sincerely,
Mark Hammond
Chief
Executive
Equality
and Human Rights Commission
1. My Initial Query
Dear sirs,
I would like to make the following observations.
1/ As a severely head injured disabled person I would like to protest in the
strongest terms about the continuing involvement of Lord Holmes as Disability
Commissioner. I believe it totally improper for anybody with a political
allegiance to be in this position. Your treatment of disabled people may well
be prejudiced by any political bias your disability commissioner displays,
2/ The UNCRPD has been marginalised by not being written into UK Law. The UN
have had to send in a Special Rapporteur, Raquel Rolnik to point out problems
with the bedroom tax (66% of those affected by it have a disabled family
member) but I haven't heard any comment from Lord Holmes or the EHRC on this
subject. It appears to me the UN are having to monitor the implementation of
the UNCRPD because Lord Holmes is refusing to! Do you have any comment on this?
3/ Why are you not campaigning for the UNCRPD to be incorporated into UK law in
the way the ECHR is? I believe Scope will be doing just this !
4/ 10,000+ people have died within 6 weeks of being subjected to a work
capability assessment. Don't you care? Surely their human rights are being
abused by this government! Amnesty International agreed at their AGM this year
that the human rights of disabled people in the UK are being abrogated. Do you
disagree with them?
I believe it likely that possible political influence being exerted over the
EHRC will lead to you becoming nothing more than a lapdog of the government.
Please answer my queries above and explain whether your organisation has the
political will to resist being shut up and controlled by the government like
the UKDPC and DRUK have been!
Yours sincerely,
Ian M Jones
Neil’s campaign phrase of “dignity and opportunities for all’ is something I believe we can all unite around and is not far away from the plea for “a better, fairer way to support and give opportunities to disabled people” which WOW pleaded for at the recent Service of Remembrance in Parliament Square, for the 10,000 plus people that have died within 6 weeks of being forced to do a WCA. Let us not forget that some prominent campaigners for the Rights of Disabled People have shepherded disabled people towards the Government’s Work Programme in the past and that all major Political parties have supported this approach.
Did Martin Luther King base his emotive speeches on a fashionable model of why race discrimination is wrong? Is our fight a million miles away from his? Are disabled people discriminated against because they are less than non-disabled people or because they are different?
Disability is not a model to me. It is a way of life.
Asking for more Training, Education and Skills to be transferred to sick and disabled people is to me a no-brainer, as in my opinion everybody needs to improve their skills and ability to add value – sick people, disabled people, yet to be disabled people , young, old, men, women, Africans, Asians, Europeans, Americans I could go on! However, will being better qualified/ experienced really solve all of the barriers to work we encounter? I hope we are not suggesting that sick and disabled people have to be more qualified and experienced in order to secure employment as in my personal experience being over qualified is a major barrier to empoyment?
Trust me when I say lack of qualifications, experience, skills or ability is not a barrier to working for me personally. People liking me or relating to me or being scared of me or not understanding me or assuming things about me or using office politics to highlight why I am less than them ARE the barriers. The Equality Act 2010 addresses removing many of the barriers to Disabled People fully participating in Society but hasn’t addressed the “hearts and minds question”.
As long as society gives us “Equality of Treatment” Society will expect us to react to things in exactly the same way as them, because we argued to be treated in the same way as them. We have to re-frame the argument so that we are demanding Equality of Opportunity. No matter how educated, qualified and experienced you are, if people don’t want any of “those disabled people” working with them you won’t be working with them, unless they are convinced differently (be it by legislation or public opinion etc). Supply side measures are welcome but in my opinion won’t help generate opportunities for talented disabled people.
Just as I think equality of treatment was the wrong target I passionately believe that by focusing on supply/ push side measures to get more of us in employment, both if we can or want to, we are promoting a model that is doomed to failure. Why work hard to improve yourself if the opportunities don’t follow the effort! My belief is that you should “Build it and they will come”. (With apologies to Kevin Costner).