PREVIOUS SPEAKERS:
Nick O’Brien, Legal Director,
Disability Rights Commission
ILS, Oxford, 10 September 2004
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to list of speakers Title:
"'Accentuating the Positive': Disability Rights and the
Idea of a Commission for Equality and Human Rights" (FINAL)
Oxford is probably as good a place as any to speak of social exclusion, and this college dedicated to St Catherine especially so. In the nineteenth century when Hardy’s Jude Fawley, and whole generations of women, working class and non-Anglican men, were locked outside the gates of this university, the college that was to become St Catherine’s began life as a society for matriculating students too poor to gain entry to the university. It is incidental to the merit of this socially inclusive initiative that the name of St Catherine was taken by mistake. For their meeting place the early students apparently used dining rooms on Catte Street, just by the Bodleian library, and ‘Catte’ was mistakenly thought to be an abbreviation of Catherine, from which the modern college took its name. There can’t, I suppose, be many Oxford colleges named after a café (as Terry Eagleton once observed), but the fact that this one is lends it a particularly pleasing ambience for this part of the proceedings.
I say that because my subject today is, in a sense, social exclusion, being kept outside the gates, and what can be done about it, and in approaching it I want to talk about two things: first, about disability rights, about whether there are such things, what they amount to and what they might become; and secondly, about what disability rights tell us about the idea of having a combined Commission for Equality and Human Rights, in other words about what contribution disability rights might make to our thinking and practice on equality and human rights more generally. My argument will be that there is a distinctive dimension to disability rights, a quality that distinguishes disability rights from other equality rights as currently framed, such as those to do with race and gender, yet which also offers a compelling model of what equality and human rights, and so social inclusion, might be about across the board. On this account, far from disability being the poor relation on the equality scene it turns out to be pivotal to a proper understanding of what equality and rights talk are for: in other words, disability is in fact the point at which the various strands of a Commission for Equality and Human Rights might fruitfully converge. But I want to do more than this. I want as well to say something about the sort of institution an equality commission is (and in so doing I will briefly touch upon the sort of institution the Disability Rights Commission has so far been) and about the place of law within its practice.
But first of all: is there such a thing as disability rights and if so what do such rights amount to? It may seem perverse to ask this preliminary question. Yet the answer has not always been uncontested. At the philosophical level there are those who, although not unsympathetic to the cause of disabled people, would argue that the idea that those who are disabled have absolute claims upon the community at large as a matter of right, as opposed to as a matter of benevolence, is misconceived, that the proper response to the disadvantage experienced by a disabled person is not indignation but sorrow or pity. Politically, this philosophical position has in the past been translated into social policy that identifies disability as the object of social welfare initiatives and benefits, supplemented wherever possible by the work of the major disability charities. It was not until the enactment of the Disability Discrimination Act 1995 (DDA), a rather late arrival on the anti-discrimination scene, that disabled people in this country enjoyed for the first time a reasonably comprehensive (although far from exhaustive) set of positive rights to supplement welfare provisions. The path that had led from the campaigns of Vietnam veterans in America to the inclusion there of disability on the civil rights agenda and in due course to the Americans with Disabilities Act of 1990, had at long last found its way to the statute book here too. So whether disability rights quite fit the ‘natural rights’ bill, as ‘positive rights’ they have made a fairly grand entrance and are very definitely here to stay.
What then of those positive rights: what sort of thing are those disability rights enshrined in the DDA? It is of course tempting to see disability rights as much the same as the earlier generation of race and gender rights contained in the Sex Discrimination Act and in the Race Relations Act of nearly thirty years ago. On that account, disability rights, like rights on gender and race, are essentially a matter of ‘simple’ equality, of equal treatment, a matter of satisfyingly neat symmetry: if you just treat disabled people the same as everyone else, you are out of the discriminatory woods.
DDA case law (not always the most obvious place to turn for illumination) helps dispel any such simplistic assumption. The first big Court of Appeal case on the DDA (Clark v TDG Ltd t/a Novacold, 1999 IRLR 318) scotched the notion that simple equivalence or equal treatment is the key to disability rights. As Mummery LJ put it,
‘Less favourable treatment of a disabled person is only discriminatory under s. 5 (1) if it is unjustified. Treatment is less favourable if the reason for it does not or would not apply to others. In deciding whether that reason does not or would not apply to others, it is not appropriate to make a comparison of the cases in the same way as in the [SDA] and the [RRA]. It is simply a case of identifying others to whom the reason for the treatment does not or would not apply. The test of less favourable treatment is based on the reason for the treatment of the disabled person and not on the fact of his disability. It does not turn on a like-for-like comparison of the treatment of the disabled person and of others in similar circumstances’.
In short, in the opinion of Mummery LJ, the interpretation of the DDA ‘is not’, as he put it, ‘facilitated by familiarity with’ the SDA and RRA.
From Clark v Novacold it emerged in effect that it is not enough for an employer to acquiesce in the knowledge that he or she has treated a disabled employee just the same as they would treat a non-disabled person (equal treatment) nor is it enough to have created the ever-elusive ‘level playing field’ (equal opportunity). What matters is that the result for the disabled person is the same as it would have been for an otherwise similarly placed non-disabled person: they get the job, keep the promotion, escape dismissal (equal outcome). By implication, if it takes a bit more effort or imagination, or even cash, to achieve that end, then so be it. Equality is, paradoxically, about being treated differently, not the same.
The seminal concept in advancing equal outcomes of this sort is that of ‘reasonable adjustment’, the domestic version of the ADA’s ‘reasonable accommodation’. It is the duty of employers (and others with obligations under the DDA) to make reasonable adjustments to their practices, policies and procedures that translate the ideal of equal outcome into effective action. The centrality of the ‘reasonable adjustment’ provision has recently been emphasised in the House of Lords case of Archibald v Fife Council (a case, incidentally, which the DRC funded). As Baroness Hale remarked,
‘[In the cases of the SDA and RRA] men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminates against women. Treating women more favourably than men discriminates against men. Pregnancy apart, the differences between the genders are generally regarded as irrelevant. The 1995 Act, however, does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the special needs of disabled people. It necessarily entails an element of more favourable treatment. The question for us is when that obligation arises and how far it goes’.
In other words, in answering the question ‘what are disability rights all about’, the notion of reasonable adjustment is central. In Archibald, Lord Hope chose to characterise this positive dimension as ‘positive discrimination’, insofar as it entails ‘an element of more favourable treatment’. However, when viewed in the context of the DDA as a whole, it is arguable that the obligation to make reasonable adjustments just is the effective achievement of equality for disabled people. Reasonable adjustments are then not so much a vehicle of positive discrimination in favour of disabled people, an add-on to what is strictly necessary, but rather a means (in fact the means) of avoiding discrimination in the first place.
It is this positive dimension of disability rights that provides the best clue to what those rights might become. For many years, academic commentators, and others, have suggested that shifting attention from the potential victims of discrimination to the potential perpetrators by the creation of positive duties to promote equality is the best way forward if equality is taken to mean more than the mere avoidance of individual instances of discrimination. The success in Northern Ireland in changing the religious composition of the workforce is cited as a compelling example. Here we have the Race Relations Amendment Act, of course, and the Government now promises something similar both on disability (in the forthcoming Disability Bill) and on gender (as described in the recent CEHR White Paper, Fairness for All). These initiatives represent a sea-change in the legislative approach to equality in this country, and at the same time recognise the substantive values underpinning equality legislation: sea-change, in that this is a move away from an emphasis on individual victims, retrospective remedial litigation and individual redress, to the collective benefits for disadvantaged groups of systemic and active changes in policy. The latent political charge of anti-discrimination legislation is laid bare in all its potentially subversive colours.
So what does this have to do with the idea of a CEHR, with the aspiration to bring together the various EC strands of equality with human rights to create a more potent force for social change? First of all, it suggests that whether or not the ‘lived experience’ of disability discrimination is fundamentally different from any other form of discrimination, the legislative arrangements, at least, for achieving equality for disabled people are fundamentally different from those on race and gender, sexual orientation, religion and age. This is not just a difference of degree but a difference of kind. But secondly, and more importantly, what is different about disability legislation points to one version of the sort of legislative strategies that are needed to combat inequality and social exclusion in all its cross-strand manifestations. Once again it is the ‘positive’ dimension of the reasonable adjustment provisions that turn out to be crucial, the refusal to acquiesce in equal treatment and the willingness to transcend that limited strategy by insisting on ‘going the extra mile’ (as it were) to make the positive interventions that will actually deliver substantial equality of outcome rather than merely formal symmetry. The importance of this positive dimension falls into relief when set in the context of three other considerations: first, the underlying philosophical models of equality; secondly, the thinking behind the gradual introduction of positive public sector duties on race, disability, gender (and possibly religion); and thirdly, the emergence of a broad conception of human rights that puts a premium on the positive duties of the state, on mutuality and community at the expense of Enlightenment notions of individual civil liberty.
Christopher McCrudden, the Professor of Human Rights in this university, helpfully identifies four basic models of equality. First and most familiarly to lawyers is the individual justice model, with its emphasis on redress for individual victims of irrational prejudice and disadvantage. Here the keyword is ‘discrimination’ and of course this is the model that lies behind the gender and race legislation of the 1970s, to a large extent the EC general framework directive and to a much lesser extent the DDA. Second is the group justice model, with its recognition that there is a social dimension to inequality, that individual instances of ‘discrimination’ are embedded in social practices and institutions and so inform the experience of entire groups of people who share a common fate of social disadvantage, and here the keyword is ‘redistribution’, redistribution that is of social goods and benefits. Third is the identity model, which recognises the cultural dimension of disadvantage and seeks to remedy the experience of cultural exclusion by celebrating diversity and embracing difference, and here the keyword is precisely ‘diversity’ as the cornerstone of multiculturalism. And finally there is the participatory model, with its emphasis upon social and civic inclusion and the recognition that the achievement of flourishing individual persons and groups entails their ability to participate in the dance of a fully integrated social life, and here the keyword is ‘participation’, the rather Olympian notion that it’s the taking part that really counts.
Clearly there are tensions between these four models and it would be rash to argue that any one model captures all the richness that the concept of equality denotes. Indeed elements of all four models are ever-present in actual debates about public policy and to a greater or lesser extent they all lurk beneath the surface of the EC general framework directive. But if I had to pick out the two that come closest to the government’s plans for a CEHR, I would choose redistribution and participation. It is the linkage between these two models that grounds the government vision of a new human rights culture that can in turn disclose a truly participatory experience of citizenship. It is also this linkage that transcends the more limited notions of discrimination and identity. At the heart of the CEHR vision lies the recognition that the entire equality project is an exercise in social change, that such change can only be achieved by the positive acts of powerful agents to foster active participation in key institutions, whether political, social or economic, and that positive steps towards inclusion of this sort can best be achieved in the round rather than as piecemeal initiatives to the advantage of particular minority groups who are in need of special protection.
This is a grand and ambitious vision, and it is of course too soon to say whether the CEHR model proposed in the recent government White Paper has any chance of doing the trick. There are nevertheless two specific concrete developments that point in the same direction: the proliferation of public sector duties; and the development of a broad interpretation of human rights in ECHR case law (and it is in the context of these two developments that I will a little later reflect on the sort of thing an equality commission like the DRC is and the place of law within it).
Another professor in this university, Sandra Fredman, Professor of Discrimination Law, has long argued that taking individual anti-discrimination cases goes only so far, and that the lessons on gender and race in this country and elsewhere are that it simply does not go far enough to make a real difference, to bring about life-transforming and sustainable change for what she calls ‘out-groups’. That same conclusion largely informed the thinking behind the Hepple Report on equality law in 2000 (and I know that Sir Bob Hepple will speak to this conference tomorrow about how he sees the current state of play). The limitations of the legal process - its incorrigible individualism, its inadequate remedies, its indefeasible casuistry - make it a poor vehicle for real social change. This is not to say that there are no important local victories along the way. Of course, there are. You in this audience assembled here have probably won most of them. But the signs are that the big battles that redraw the social equality map are fought outside the courtroom, outside the legal process and outside the anti-discrimination framework. It is the desire to move away from that anti-discrimination model that offers a place to a different type of legal device altogether, the sort of positive public sector duty that removes attention from the potential victims to the potential perpetrators, and requires public sector bodies to take positive steps to promote equality for particular groups. At present such duties exist on race only. But the government will promise something similar in the forthcoming Disability Bill currently before Parliament; the CEHR White Paper has proposed legislation on a gender public sector duty; and in the present post 9/11 climate it can only be a matter of time before such duties are extended to religion and beyond, perhaps even to the private sector or at least so far as to encourage the sort of public procurement regime that has long been credited in the USA with real impact. But whether or not such extension develops quickly or slowly, the desire to ‘accentuate the positive’ sits immovably at the centre of current legislative strategy on equality law. The old anti-discriminatory model, although still part of the equality picture, no longer rules the roost in the way it did a generation ago.
So what of the human rights side of the ‘equality and human rights’ equation? Francesca Klug, Professor of Human Rights Law at The London School of Economics, has drawn attention to three waves of human rights thinking. The first is that associated with the Enlightenment and with the ‘rights of man’ agenda that informed the French Revolution and the American Declaration of Independence, and here the emphasis was upon the ‘negative’ liberty from oppression by the state and the Church afforded to the newly emancipated individual. The second wave occurs after the Second World War and is associated with the 1948 Universal Declaration of Human Rights. It was this new wave of human rights thinking that pushed the boundaries beyond the negative liberty of the Enlightenment to a broader conception that embraced centrally the notions of the dignity of the human person, and of the importance of community in a flourishing human life. If the Enlightenment celebrated the atomised individual, safe within his or her solipsistic universe, 1948 offered a vision tempered by the horrors of the Holocaust in which the notion that the emancipated individual could be relied upon to deliver the social goods was finally trounced. Restraining individual power over others by the reinforcement of the boundaries of community had become the new ideal, and the obligations of the state to promote restraining community of this sort were as much to the fore as the ‘keep out’ notices that characterised the eighteenth-century edicts to Church and state.
More recently still, the Strasbourg court’s interpretation of the ECHR has given new life to the theme of mutuality and reciprocity that animates also the 1948 Declaration. Since this is an audience largely of lawyers I will risk mentioning very briefly a few cases by way of illustration, since a law lecture somehow feels inauthentic without them (and I am incidentally grateful to the DRC’s Special Adviser and my colleague Caroline Gooding for much of the analysis that follows). Let’s start with the landmark decision in the 1998 case of Botta v Italy (1998 26 EHRR 241). Although the claim itself was unsuccessful, the Court’s decision demonstrated a striking degree of realism about disabled people’s experience of social exclusion. Most important, the judgement established that Article 8 of the ECHR (right to private and family life) imposes positive obligations on the state to facilitate access for disabled people to essential economic and social activities, and to a range of recreational and cultural activities as well. The particular claim was brought by a physically disabled man resident in Milan who could not use a private beach in Italy not so far from Rimini because of the lack of ramps and toilets. It does not take much familiarity with the Italian way of life to realise that exclusion from the beach might be construed as a breach of human rights, hard though that might otherwise be to comprehend on a Friday afternoon in Oxford. Relying on Article 8, Mr Botta argued that he was unable to enjoy a normal social life which would enable him to participate in the life of the community not because of what the State had done but because of what it had failed to do, namely, discharge its positive obligations and monitor compliance with domestic provisions relating to private beaches. In the process of dismissing the complaint on the facts, the court held that the State did indeed have obligations of this sort where there is a direct and immediate link between the measures sought by the applicant and his or her private or family life. The opinion of one of the judges, Mr Bratza is especially pertinent:
‘Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities…this provision may nonetheless, in certain cases, impose on those States positive obligations inherent in an effective respect for private life even in the sphere of the relations of individuals between themselves…Such positive obligations may exceptionally arise in the case of the handicapped in order to ensure that they are not deprived of the possibility of developing social relations with others and thereby developing their own personalities. In this regard, the Commission observes that there is no water-tight division separating the sphere of social and economic rights from the field covered by the Convention. This is an area in which a wide discretion must inevitably be accorded to the national authorities. Nevertheless, the crucial factor is the extent to which a particular individual is so circumscribed and so isolated as to be deprived of the possibility of developing his personality’.
In respect of Article 3 (right to life), the landmark decision is Price v UK (2001 34 EHRR 1285), a case concerning a disabled prisoner. Ms Price is a survivor of thalidomide. She was committed to prison for three days for contempt of court in the course of civil proceedings. In prison she had to put up with conditions that prevented her from going to the toilet or keeping clean properly, where it was dangerously cold and she ran the risk of developing bed sores. The judgement of Judge Greve is especially telling:
‘In a civilised country like the United Kingdom, society considers it not only appropriate but a basic humane concern to try to ameliorate and compensate for the disabilities faced by a person in the applicant’s situation. In my opinion, these compensatory measures come to form part of the disabled person’s bodily integrity. It follows that, for example, to prevent the applicant, who lacks both ordinary legs and arms, from bringing with her the battery charger to her wheelchair when she is sent to prison for one week, or to leave her in unsuitable sleeping condition so that she has to endure pain and cold - the latter to the extent that eventually a doctor had to be called - is in my opinion a violation of the applicant’s right to bodily integrity. The applicant’s disabilities are not hidden or easily overlooked. It requires no special qualification, only a minimum of ordinary human empathy, to appreciate her situation and to understand that to avoid unnecessary hardship - that is, hardship not implicit in the imprisonment of an able-bodied person - she has to be treated differently from other people because her situation is significantly different’.
This is good powerful European stuff, demonstrating the positive dimension of human rights, the third wave, with particular application to the situation faced by disabled people. But what about ‘bringing rights home’ (as the government is so fond of saying - or at least used to be) and an example of a domestic decision involving disabled people that draws upon the same stream of positive participatory thinking and language? The case of The Queen (On the Application of (1) A (2) B) v East Sussex County Council (CO/4843/2001) will do nicely (with the additional advantage for what I want to say about the place of law in the work of the DRC that it is a judicial review case in which the DRC intervened as a third party).
A and B are two disabled sisters, 26 and 22 years old respectively, both with profound physical and learning impairments. They have always lived at home, in a specially adapted house. Even so, getting out of bed or into the bath means they have to be lifted by their carers. Over the years, there had been increasing tension between the family and the local authority over whether the lifting should be done manually or with the use of special hoisting equipment, which the sisters hated. The DRC became involved because this case was the tip of a ‘no-lifting’ iceberg: stories abound of disabled teenagers going to school in nappies because no one is allowed to lift them on to the toilet and of older disabled adults unable to leave their houses because their carers are forced to rely on hoists for any necessary lifting. Things like going to the shops, which would in practice be perfectly manageable with relatively modest amounts of lifting, then become impossible. This was the situation facing A and B, and the DRC without hesitation associated itself with the claim that the local authority’s manual handling policy was unlawful and unjustified, and that it had got the balance between the safety of its employees and the needs of its disabled clients entirely wrong. In his compelling judgement in favour of A and B, Mr Justice Munby drew upon the reasoning in Botta, with its emphasis on ‘the physical and psychological integrity’ of the person, to find at the heart of that integrity the central value of ‘human dignity’:
‘True it is’, he said, ‘that the phrase [human dignity] is not used in the Convention but it is surely immanent in Article 8, indeed in almost every one of the Convention’s provisions. The recognition and protection of human dignity is one of the core values - in truth, the core value - of our society and, indeed of all societies which are part of the European family of nations and which have embraced the principles of the Convention’.
Turning to the positive dimension of what the achievement of that human dignity might require of a public authority, the judge remarked that:
‘The other important concept embraced in the "physical and psychological integrity" protected by Article 8 is the right of the disabled to participate in the life of the community…This is matched by the positive obligation of the State to take appropriate measures designed to ensure to the greatest extent feasible that a disabled person is not "so circumscribed and so isolated as to be deprived of the possibility of developing his personality".’
What these cases tells us then is that there is a sort of seamless coherence in the positive approach to equality realised in the reasonable adjustment provisions of the DDA, in the emerging popularity of the positive public sector duty as a legislative device, and in the broad conception of human rights increasingly adopted by the Strasbourg and domestic courts when considering the situation of disabled people, and all this within a framework that prioritises the philosophical models of equality as redistribution and especially participation for social groups, not just discrete individuals.
I want now to turn to slightly more parochial territory, to the role of an equality and human rights commission in taking forward this legislative and political agenda. I would suggest there are three main models of what an equality commission generally is supposed to be. First of all there is the ‘advocacy’ model, encouraged by the idea that a commission is there to represent the interests of an especially vulnerable minority, to fight its corner in the world at large. Secondly, there is the idea that a commission is first and foremost a regulator, the wielder of the big stick, keeping the forces of discrimination at bay. And thirdly, there is the notion that the overriding ambition of a commission should be to act as an instrument of social change, perhaps doing a bit of advocacy and regulating along the way, but always as a means to an end and never as an end in itself.
It has been tempting in the past (especially perhaps for lawyers) to see the CRE, EOC and DRC as a mixture of advocate and regulator, as law enforcement agencies, whose primary purpose is to take discrimination cases on behalf of needy individuals and thereby to wield the big stick and at the same time fight the corner of the most vulnerable in society. On this account, a commission becomes a curious amalgam of law centre and legal aid provider, whose success can be gauged by the number of successful cases pursued. The key accountability questions then become how much of the budget is put aside for law enforcement, how many cases do they take and how many do they win. The questions of why such and such a case is taken, or of whether those cases, or indeed cases in general, actually make much lasting difference to the equality agenda then become subordinate. This approach still surfaces quite frequently in the current debate about a CEHR, with much anxiety being generated about whether ‘promotion’ is going to oust ‘enforcement’, the latter being conceived primarily as litigation.
I want to suggest that, if the preceding analysis of the way the equality wind is blowing is correct, this perception of the role of a commission is misconceived. I will do so by reference, briefly, to the experience of the DRC, which as you will be aware has been around now for just over four years. When the DRC opened in April 2000 the DDA was still in the process of being phased in gradually. Indeed it still is. The main provisions on employment and services had come into force in 1996, with important extension of the reasonable adjustment provisions on services having been implemented as recently as 1999. Part 4 of the Act on education was not due for implementation until 2002, and the final extension of the duty on service providers to make physical changes to premises does not occur until October this year, with a similar extension to universities and colleges next September. In the meantime, the employment provisions have been extended to include from October all employers, not just those with fifteen or more employees; and the new Disability Bill will, as already mentioned, change the landscape again with the introduction of a public sector duty as well as a wide range of refinements to the DDA proper. In other words, the legislative environment that gave birth to the DRC has been, and continues to be, highly volatile.
At the same time, the DDA itself was not exempt from criticism at the outset. As you may remember, it was introduced by William Hague when Minister for Disabled People in the beleaguered Major government and bore the marks of considerable parliamentary buffeting. Its critics pointed especially to the ‘medical model’ definition of disability, the low justification defence threshold and the patchy coverage as hugely damaging. The early research on the use of the DDA suggested that there had been wide use of the employment provisions, with several thousand cases having been brought and a number of important interpretative decisions having emanated from the higher courts on appeal. By contrast Part 3 had scarcely troubled the scorers, with as few as 53 cases having been commenced in the civil courts in the first three years.
Faced with this situation, the DRC decided that it needed a very targeted or ‘strategic’ approach if it was to make the best of a less than perfect legislative job. First of all, it was vital to keep an eye on the way the legislation was being used and to let Government know about it, and to that end the DRC quickly produced a major legislative review that has set the agenda for the subsequent phase of law reform. It set up a conciliation service to cover services cases and so provide a possibly more attractive forum than the civil courts for the resolution of disputes, and that service has enjoyed relative success with high settlement rates (in the region of 70%) and about 150 cases being dealt with that way each year. It took an ‘enabling’ approach to the provision of advice and information, establishing a helpline which has taken about 100,000 calls each year, a quarter of which have been from business and public service providers, and deploying a casework team, not so much to ‘go on the record’ as acting for litigants but rather to help each year a couple of thousand disabled claimants to help themselves. And at the same time it devoted a lot of time to updating the existing statutory codes of practice on services and employment, so that there was a reliable interpretative resource available, whether or not the case law kept pace; it completed a formal investigation into the provision of website services as a counter-balance to the preponderance of individual employment cases; and in the background it kept chipping away at false perceptions of disability and low awareness of the legislation with all the tools in the modern communications and ‘best practice’ armoury (I should say, incidentally, that the EOC and CRE had for some time pioneered a number of these strategies too).
It is probably for others to judge the success of these efforts, but if I had to characterise this package of strategies I would say that they represent primarily neither law enforcement nor straight promotion but rather the ‘mobilisation’ of the law through a variety of devices: conventional litigation, ADR, awareness raising, ‘empowerment’, a mixture of prevention and cure, all as a way of taking forward an agenda of social change. For it is that in my view that the DRC has seen itself as, much more than as ‘advocate’ or ‘regulator’.
To demonstrate the distinctive approach to the law that this model entails I want to conclude by describing two particular clusters of cases which have engaged the legal efforts of the DRC: the first is to do with moderating the disastrous impact of Jones v the Post Office, and the second is to do with using intervention in judicial review cases as a device for reaching corners of the social landscape that by and large elude the grasp of the DDA.
In Jones v The Post Office (2001 IRLR 384), the Court of Appeal considered the justification defence against claims of less favourable treatment. Its conclusion that the justification threshold is low reinforced previous case law in the lower tribunals and confirmed the worst suspicions of disability activists that the DDA is potentially a discriminators’ charter. In the months following Jones, the DRC received a number of requests to fund cases that applied the judgement and so seek to modify it by that route. A quick reactive approach was tempting, not least in the interests of demonstrating that the DRC is no pushover. Thanks especially to the wise counsel and skill of Pauline Hughes (the DRC’s Head of Legal) and, I should say, of Robin Allen QC who advises the DRC’s Legal Committee, a more measured approach was adopted. This entailed an oblique but ultimately successful strategy. In Collins v The Royal National Theatre Board Ltd (2004 IRLR 395), a case involving a carpenter who lost part of a finger, the Court of Appeal took a step in the right direction by agreeing with the DRC that the justification of a failure to make reasonable adjustments (a rather large stone left unturned in Jones) must relate to circumstances other than those taken into account for the purposes of deciding whether the adjustment is reasonable or not; otherwise, the result would be hopelessly circular. As Sedley LJ put it,
‘...the extant statutory provision about discrimination by failure to make adjustments has something close to the shape which it will explicitly acquire when the amendments come into force in October 2004. As it happens, that is also the shape adumbrated in the original White Paper, which proposed a justification defence for less favourable treatment but not for failure to make reasonable adjustments. What is now s. 5 (4) was not in the initial Bill but, we are told, entered it just prior to the report stage of its passage in the House of Lords. For the present, the justification which it affords of a failure to make reasonable adjustments is not ruled out but is, on a proper reading of the DDA, heavily restricted.’
So far, so good. But the full impact of Jones on justifying detrimental treatment still remained largely untouched. However, in Archibald v Fife Council, the House of Lords made it clear that ‘the arrangements’ which might attract the reasonable adjustment duty are very broad indeed, as is the ‘duty’ itself. ‘Arrangements’ turns out to cover just about anything that might put a disabled person at a disadvantage, including the job description itself and the extent of a person’s liability to dismissal if they become incapable of doing the job so described. As Michael Rubenstein has helpfully put it in his IRLR editorial for 8 August 2004,
‘The breadth given to the components of the reasonable adjustment duty mean that more DDA cases will start - and end up - as adjustment cases. The control mechanism is reasonableness. The employer has to do no more than is reasonable. Reasonableness in an adjustment case, however, is not the band of employer discretion established by the Court of Appeal in Jones v The Post Office. It is an objective test of what a reasonable employer ought to do, made more rigorous by the removal as of 1 October of the possibility of justifying failure to make a reasonable adjustment’.
And, he might have added, ‘in the interim by the Court of Appeal judgement in Collins v The National Theatre’.
Finally in this cluster of employment cases there is the Court of Appeal judgment in Nottinghamshire County Council v Meikle (2004 IRLR 703). In Meikle, which concerned a school-teacher who developed a visual impairment and was eventually dismissed on grounds of incapacity following an extended period of sick-leave, the Court of Appeal considered the effect of s. 5 (5) of the DDA, which provides that the question of whether less favourable treatment can be justified is subject to consideration of the effect of a failure to make a reasonable adjustment in the first place. The local authority argued for a very narrow construction, suggesting that the only issue was whether there should have been any adjustment to the sick-leave policy before it was invoked to justify reduction of Ms Meikle’s sick-pay. Keane LJ, expressly adopting the decision in Collins, remarked,
‘A tribunal does have to consider what the position would have been if the employer had complied with his section 6 [reasonable adjustment] duty. That is what the final part of the subsection [s. 5 (5)] indicates by the words, ‘even if he had complied with the section 6 duty’. In the present case, it is clear from the findings of the tribunal that Nottingham County Council had failed in a number of respects to comply with that duty, in particular (though not solely) in regard to enlargement of written materials and the provision of more non-contact time for Mrs Meikle. The proper approach was to ask whether NCC had shown that, if all reasonable adjustments required by section 6 to her working conditions had been made, Mrs Meikle would have been absent for over 100 days and thereby liable to the reduction in sickness payment.’
To which the answer, in the judgment of Keane LJ, was a resounding ‘no’.
So what does this cluster of cases suggest about the character of an equality commission and its use of litigation? To my mind, it suggests that an equality commission should regard itself almost as a guardian of its substantive legislation, with a firm commitment to supporting cases in a way which only it can. In this instance, what was distinctive about the DRC approach was its ability to pursue a consistent thread of argument in the higher courts in a number of quite separate but related cases, and so moderate a potentially damaging decision for the integrity of the DDA (Jones) not by head-on collision but by a more subtle and oblique approach. In the end, the net result is that the depressingly low threshold established in Jones can be moderated by the operation of s. 5 (5). And this will still matter after 1 October because although it will not be possible to justify ‘direct discrimination’, it will be possible to justify other ‘disability-related discrimination’ - but thanks to these cases, not very easily.
The second cluster of cases has already been alluded to. In the case of A and B mentioned earlier, the DRC intervened as a third party in a judicial review case, and in so doing was able to put before the court policy considerations which might not otherwise have attracted much, if any, attention. Just as importantly, the case involved health and social issues that are not easily addressed in the course of conventional anti-discrimination claim brought in the civil courts under Part 3 of the DDA. By intervening in cases of this sort the DRC not only has the opportunity to play a distinctive role in the judicial process, a role very different from that of a conventional adversary, but also gets to concerns of disabled people which, although of critical importance, are scarcely touched by the DDA. In three other cases, two decided recently (Burke v The General Medical Council, a case concerned with the circumstances in which artificial nutrition and hydration might be withheld, and Manchester City Council v Romano and Samari, a case concerned with the eviction of disabled Council tenants on the grounds of their allegedly anti-social behaviour) and one to be heard in November (N v St Bartholomew’s Hospital) concerning a disabled child who was denied ventilation for asthma on ‘quality of life’ grounds), the DRC has made similar interventions, adducing the Human Rights Act in support of positive obligations on the part of public authorities to engage the participation of disabled people in quite literally ‘life and death’ decisions. In Burke, Munby J put the DRC’s approach very well:
‘The DRC was joined in the proceedings as an interested party. I had to consider the position of the DRC in R (A, B, X and Y) v East Sussex County Council and the DRC...I need not repeat what I said save to emphasise that in this case, as in that, I have been greatly assisted by the DRC and by the submissions of its counsel, Mr David Wolfe. In this case, as in that, the DRC was able to deploy, to the greatest assistance of the court, a particular and highly relevant informed expertise which none of the other parties could bring to the task in hand. Both cases illustrate the important role that, in appropriate cases, bodies such as the DRC have to play in litigation, affording our courts the kind of valuable and valued assistance that courts in the United States of America have for so long been accustomed to receiving from those filing amicus curiae briefs’.
Let me conclude. As the recent White Paper demonstrates, a CEHR can be expected to play lots of roles, some would say too many. I hope that I have persuaded you that the roles of legal aid provider and law centre should not be among them. The distinctive quality of disability rights, with the privileged place afforded to ‘reasonable adjustments’, accentuates the positive, and the advent of a panoply of positive public sector duties together with the emphasis in a broad interpretation of human rights upon the positive duties of public authorities to make real the participation of disabled people in social and civic life, reinforce that positive accent with which the DDA is enunciated. If there is to be a CEHR, the DRC expects to see disability rights at the heart of it, not because disability rights are in themselves more important than any other sort of rights, or because the DDA is so recent a piece of legislation, or because the future legislative agenda on disability is so heavy (although some of these things may be true), but because disability rights offer a new way forward, a way forward that is consistent with broader policy and legislative developments both here and throughout Europe, and which, most importantly of all, make sense of the notions of equality as redistribution and participation. So, the future on equality and human rights is still rather bright (notwithstanding the Conservative Party’s planned review) and, if not exactly orange, at least decked out in that rather pleasingly azure tint of the EC disability blue badge scheme. And that’s progress of a sort on the path to swinging open the socially exclusive gates. I hope the nineteenth-century forebears of this college would approve.