International guidance on access to justice for disabled people: Brexit sting in the tail?
John Horan looks at guidance issued by the UN’s Special Rapporteur on the Rights of Persons with Disabilities and asks whether it is likely to be implemented in the UK.
For a start, it is a ‘collaboration’ document by the special rapporteur, written after exhaustive consultations with experts from UN entities, regional and national justice systems, judicial academies, training centres, civil society and academia as well as representative organisations of disabled people themselves. The UK took a major role in drafting it. It is either by or endorsed by the following individuals: the UN High Commissioner for Human Rights; members of the General Council of the Judiciary; the Special Rapporteur on the Rights of Persons with Disabilities; the chair of the Committee on the Rights of Persons with Disabilities; and the Special Envoy to the Secretary-General on Disability and Accessibility. It is the nearest thing to UN doctrine that can be imagined.
Why is it so important? What is at stake for disabled people and society in general? As Juan Manuel Fernández Martinez, a senior judge from Spain, says in his introduction:
Respect for the rights of all persons, including persons with disabilities, the fulfilment of their full equality and the protection of their dignity reveal what kind of society we are and will be (page 4).
The IPGAJPD’s intended audience is judges and practitioners, as well as member states’ parliaments and the disabled world generally. No matter what country of the world, whatever its legal system, its 10 key principles (page 11) apply:
1.All persons with disabilities have legal capacity and, therefore, no one shall be denied access to justice on the basis of disability.
2.Facilities and services must be universally accessible to ensure equal access to justice without discrimination of persons with disabilities.
3.Persons with disabilities, including children with disabilities, have the right to appropriate procedural accommodations.
4.Persons with disabilities have the right to access legal notices and information in a timely and accessible manner on an equal basis with others.
5.Persons with disabilities are entitled to all substantive and procedural safeguards recognised in international law on an equal basis with others, and states must provide the necessary accommodations to guarantee due process.
6.Persons with disabilities have the right to free or affordable legal assistance.
7.Persons with disabilities have the right to participate in the administration of justice on an equal basis with others.
8.Persons with disabilities have the rights to report complaints and initiate legal proceedings concerning human rights violations and crimes, having their complaints investigated and be afforded effective remedies.
9.Effective and robust monitoring mechanisms play a critical role in supporting access to justice for persons with disabilities.
10.All those working in the justice system must be provided with awareness-raising and training programmes addressing the rights of persons with disabilities, in particular in the context of access to justice.
These principles are then individually broken down into recommendations by the UN to governments on how, in fact, they should be brought about in concrete terms. They are more than a ‘good read’, but it is beyond the scope of this article to consider all of them. I will focus on free or affordable legal assistance to disabled people – principle 6 – and disabled people’s right to report complaints and initiate legal proceedings – principle 8.
Principle 6: right of disabled people to free or affordable legal assistance
The IPGAJPD highlights (at page 6) the following examples of the range of differences that prevent disabled people from having true access to justice:
•restrictions on the exercise of legal capacity;
•lack of physical access to justice facilities such as courts and police stations;
•lack of accessible transportation to and from these facilities;
•obstacles in accessing legal assistance and representation;
•lack of information in accessible formats;
•paternalistic or negative attitudes questioning the abilities of disabled people to participate during all phases of the administration of justice; and
•lack of training for professionals working in the field of justice.
The special rapporteur’s recommendations include:
•States shall provide free or affordable legal assistance to all disabled people in all legal procedures that either relate to the violation of human rights or fundamental freedoms or those that could negatively affect such rights or freedoms, in particular, the right to life, liberty, personal integrity, property, adequate housing, decision-making autonomy and family integrity.
•Such legal assistance must be competent and available in a timely manner for disabled people to participate equally in any legal proceedings.
•To that end, states shall:
•enact and implement laws, policies, guidance and practice affording the right to legal assistance in all judicial and quasi-judicial proceedings for disabled people;
•create, fund and implement legal assistance programmes to provide free legal representation to people who cannot afford to retain legal assistance, including disabled people, in matters that concern loss of life or liberty, capacity or family integrity, housing, shelter or property, and any other situation resulting in a criminal matter or civil claim in which a disabled person may be at a disadvantage in communicating, understanding or being understood throughout the process;
•ensure that free legal assistance is available to any disabled people on no less favourable terms than non-disabled people and, in any event, wherever necessary on an individualised basis as a procedural accommodation within article 13 of the
UN Convention on the Rights of Persons with Disabilities (UNCRPD);
•repeal or amend any law, regulation or guidelines that would have the effect of restricting the legal capacity of disabled people to retain and instruct a lawyer; and
•make procedural accommodations available to lawyers to support effective communications with clients, witnesses and other disabled people in the discharge of their professional duties and, whenever necessary, amend ethical regulations applicable to lawyers that prevent them from being able to be instructed by disabled people.
Unfortunately, very little of this guidance finds reflection in contemporary UK debates, let alone domestic law, regulations or guidance. As a practitioner who specialises in working for disabled people, vulnerable people and those who need pro bono legal assistance, and having worked for years in judicial assistance charities, I am shocked by the degree to which successive governments have ignored the problems faced by disabled people. At the same time, being disproportionately the subjects of legal intervention (whether in crime, family, employment, education or welfare benefits), disabled people are time and again not being judicially recognised as people. They have rights afforded to them under the UNCRPD that are not being addressed.
Principle 8: disabled people’s right to report complaints and initiate legal proceedings
Of course, under principle 8, to quote the IPGAJPD:
States must have accessible, easy-to-use, transparent and effective mechanisms for individuals to report complaints about human rights violations and crimes. Complaint adjudicators and tribunals must provide remedies that are individually tailored and may include redress and reparation (page 23).
The numerous recommendations include:
•The establishment of a complaint mechanism that has the power to hear complaints and to order remedies, and that will ensure that grave, systematic, group or large-scale investigations are actioned, either through that complaint mechanism or through class actions, actiones populares, public inquiries or prosecutions.
•The investigators appointed should be knowledgeable about the rights of disabled people and alert, throughout the course of investigations, to the potential need for procedural accommodations when investigating complaints by disabled people.
•When a remedy is considered, it must:
•be enforceable, individualised and tailored to meet the needs of the claimant and ensure that victims are protected from repeat violations of their human rights;
•be proportional to the gravity of the violations and the circumstances of the case;
•be provided on the basis that the individual’s free and informed consent is required for any rehabilitative measures; and
•address the systemic nature of the human rights violations.
Enforcing rights in the UK
Any UK-based discrimination lawyer will have pause for thought about disabled people’s rights and how the UN wants them handled. As I have suggested in a previous article for
Legal Action,
2October 2019 Legal Action 9. one of the effects of Brexit has been to dismantle the UK courts’ protection of disabled people when they complain about their international human rights under the UNCRPD. What this ‘cashes out as’, in my view, is that there is no longer an arguable case to be heard in UK domestic courts arising from international fundamental rights for disabled people (liberty and the basic requirements to live – family, housing, education, employment and a right to be heard by society) that the UNCRPD seeks to give them. This is not only scandalous, but is itself a violation of the UN convention – see article 5.2. I, among other lawyers, made representations to both Theresa May, when she was prime minister, and subsequently Boris Johnson, and have been dismayed to be sidelined, with no discernible answer on these points at all.
A shocking thing is that, for the large part, disabled people seeking to enforce their international right to fair and affordable advice and representation by lawyers run into the fact that in order to access the UN Committee, they require their lawyers to be paid for by the UK government – an unlikely event and a central theme of the very problems about which they complain. They are therefore very unlikely, as individuals, to do so: heartbreaking. Either the charities that love them or the Equality and Human Rights Commission must intervene by legal action, or, in the 15th year since disabled rights were recognised by the nation states of the world, the rights contained under the UNCRPD will be as naught because this and previous UK governments have chosen to ignore the issue.