John Horan highlights a troubling, and seemingly overlooked, effect of the European Union (Withdrawal) Act 2018.
Whether you’re a remainer or a Brexiteer, consider the lot of disabled people. The UN Convention on the Rights of Persons with Disabilities
(UNCRPD) lays out minimum standards for treatment of disabled people. Under UNCRPD article 4(1), the UK government had to adopt all appropriate legislative measures for the implementation of rights recognised in the UNCRPD itself – it had to make the UNCRPD effective in domestic courts and tribunals. Disability charities have been pressuring the government for domestic legislation to make sure that UK law complies.
What disability charities did not appreciate was that the government, in order to ratify the UNCRPD on 8 June 2009, ordered that the international rights created under the UNCRPD were to be regarded as European rights under the European Communities Act 1972 (ECA) by the European Communities (Definition of Treaties) (United Nations Convention on the Rights of Persons with Disabilities) Order 2009 SI No 1181 (ECDTO). That was a game-changer.
The ECA is a complicated series of provisions that are designed to give primacy to European rights and, consequently, breathe life into the direct effect of European legislation in domestic courts, give interpretative effect of European law when domestic statutes come to be interpreted, and effectively protect European rights against the domestic legislature’s encroachment.1The extent of the burden is explained in chapter 6 of Shaheed Fatima QC’s book, Using international law in domestic courts (Hart Publishing, 4 October 2005).
Put simply, it recognises the European rights as rights, ie, with protection against encroachment by subsequent legislative action. And that is simply what article 4(1)(a) requires about rights under the UNCRPD.
The fact that the ECA has been used to ratify the UNCRPD does not seem to have occurred to the drafter(s) of the European Union (Withdrawal) Act 2018 (EU(W)A) – the current law. Under s1 of that Act, the ECA is to be repealed on ‘exit day’, which is currently – so the prime minister, Boris Johnson, believes – 31 October 2019.2Parliament has indicated and, indeed, passed a law (the European Union (Withdrawal) (No 2) Act 2019) meaning that this is unlikely, in fact, to be the exit date.
When the exit date comes around, the ECA and such delegated legislation as the ECDTO will be revoked. Under EU(W)A s4 – the ‘saving provision’ – such rights will be recognised in the UK only if they were recognised before the exit date in a case before a UK court or tribunal.
So what is the problem as far as disabled people are concerned? Well, the scope and provisions of the UNCRPD are far wider and more impactful than the domestic Equality Act 2010. The UNCRPD has already impacted on domestic law. In my own cases, I have championed UNCRPD article 13 – the duty on judges to make reasonable adjustments in their court processes to deal with every person that comes before them who has a disability.3For more on this, see May 2018 Legal Action 11.
The Court of Appeal in Northern Ireland expressly recognised that right and its effect on the domestic common law in Galo v Bombardier Aerospace UK  NICA 25
; November 2016 Legal Action
32; the difficulty is that the decision by the England and Wales Court of Appeal in Anderson v Turning Point Eeespro  EWCA Civ 815
didn’t mention the ECA or the ECDTO at all. Presumably, after the exit date, the relevance of the UNCRPD to the judge’s discretion will depend on whether they sit in the England and Wales or Northern Ireland jurisdiction. Madness brought about by failure to comply with UNCRPD article 4(1).
It is alarming that, although the EU(W)A involved revoking a ratifying order of the UNCRPD, the government didn’t think to ‘closely consult with and actively involve’ disabled people and their representative organisations.
It is also alarming that, although the EU(W)A involved revoking the ECDTO, a ratifying order of the UNCRPD, the UK government didn’t think to ‘closely consult with and actively involve’ disabled people and their representative organisations, something it was required to do under article 4(3) of the convention itself. If the government must mess with disabled people’s rights, you’d think it would at least ask them first.
The question is not whether we part ways with Europe; it is whether we are really going to go about it in such a way as to undermine ratification of conventions and invite litigation of breaches of the UNCRPD against the UK government.