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"
Outline
Disability is a relative latecomer to the equality and human rights scene. As a result, it has in the past been something of a poor relation to the dominant strands of race and gender. The Americans with Disabilities Act 1990 put disability rights firmly on the global map. In Britain, the Disability Discrimination Act 1995 (DDA) and the Disability Rights Commission Act 1999 created parity with the substantive law on race and gender of the mid-1970s and with the institutional arrangements for tackling discrimination on those grounds. More importantly, the DDA differed significantly from the Sex Discrimination Act or the Race Relations Act: unlike its predecessors, it provided rights for a protected group (disabled people) without any symmetrical rights being afforded to those outside that group (non-disabled people); and it required more than simple equality of treatment by creating obligations upon potential perpetrators of discrimination to make ‘reasonable adjustments’ to their practices, policies and procedures. In both these respects, the DDA represents a new departure in anti-discrimination legislation.
The accent in which the substance of the DDA is enunciated is therefore one in which the emphasis is upon positive action to remedy the disadvantage experienced by disabled people. The purpose is to achieve equality of outcome rather than mere equality of treatment. This positive accent of the DDA is congruent with three important and related developments. First, there is the philosophical and political prioritisation of a new model of equality that puts at a premium the positive concepts of redistribution and participation, at the expense of the more formal concept of non-discrimination and, albeit to a lesser extent, diversity. Under this model of equality, the emphasis is upon ends rather than means, collective political destinies rather than individual redress. Secondly, there is the increasing prevalence of positive duties on the part of the public sector to promote equality: in Britain, the Race Relations (Amendment) Act has paved the way for anticipated duties of a similar kind on disability, gender and, very likely, religion. Positive duties of this sort turn equality legislation on its head, shifting the emphasis from reactive post-event redress for the victims of discrete acts of discrimination towards the positive obligations of potential perpetrators to ensure that the environment is one that makes discrimination and inequality far less likely. The emphasis is upon prevention rather than cure. Thirdly, there is the broad interpretation of the European Convention of Human Rights and the Human Rights Act that, through the emerging case law on disability-related issues, constitutes a ‘third wave’ of human rights jurisprudence that prioritises notions of dignity, community and participation at the expense of narrower conceptions of individual civil liberty. The result is a powerful new paradigm for equality law, with disability rights at the cutting edge.
The quality of this emergent jurisprudence has implications not just for disability rights but for equality and human rights more generally. Those implications fall into relief especially in the context of the current debate about the creation of a new Commission for Equality and Human Rights that will bring together the existing equality strands of race, gender and disability with the new strands of sexual orientation, age, religion and belief, as well as with human rights. The gradual shift of emphasis away from discrimination towards a broader notion of participation invites a rebalancing of the strategies needed to mobilise the law purposefully. Indeed, mobilisation, rather than enforcement or promotion as separate poles of activity, becomes the critical criterion of success. By way of illustration of the possible rebalancing of enforcement and promotion within a broader strategy, and of the place of litigation within that strategy, the recent experience of the DRC warrants consideration.
Far from being marginal to the ambitions of a CEHR, disability rights emerge as the potential cornerstone of a new approach to equality and human rights, and of the institutional arrangements necessary for supporting their effective achievement.
References
Clark v TDG Ltd t/a Novacold [1999 IRLR 318]
Archibald v Fife Council [2004 IRLR 651]
Botta v Italy [1998 26 EHRR 241]
Price v UK [2001 34 EHRR 1285]
The Queen (On the application of A and B) v East Sussex County Council [CO/4843/2001]
Jones v The Post Office [2001 IRLR 384]
Collins v The Royal National Theatre Board Ltd [2004 IRLR 395]
Nottinghamshire County Council v Meikle [2004 IRLR 703]
Burke v The General Medical Council [CO/4038/2003]
Manchester City Council v Sharon Romano, and Manchester City Council v Yvonne Samari [B2/2003/2515 and B2/2003/2576]
Christopher McCrudden, ‘The New Concept of Equality’, Paper delivered to the Academy of European Law, 2-3 June 2003
Sandra Fredman, Discrimination Law (Oxford, 2002)
Sandra Fredman, ‘The Future of Equality in Britain’, EOC Working Paper Series, No. 5
Sandra Fredman, ‘Does disability equality challenge the existing anti-discrimination paradigm?’, forthcoming in Caroline Gooding and Anna Lawson (eds.), Disability Rights in Europe (Hart, 2004)
Francesca Klug, ‘The Human Rights Act - A "Third Way" or "Third Wave" Bill of Rights’, European Human Rights Law Review 4 (2001) 361-372
Bob Hepple QC, Mary Coussey, and Tufyal Choudhury, Equality: A New Framework (Hart, 2000)
DRC website: www.drc.org.uk
Mummery LJ in Clark v Novacold
‘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’.
Baroness Hale in Archibald v Fife Council
‘[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’.
Bratza J in Botta v Italy
‘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’.
Greve J in Price v UK
‘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’.
Munby J in The Queen (on the application of A and B) v East Sussex County Council
‘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...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".’
Sedley LJ in Collins v The Royal National Theatre
‘...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.’
Keane LJ in Nottinghamshire County Council v Meikle
‘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.
Munby J in Burke v The General Medical Council
‘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’.