The legal establishment and the "right" to Independent Living

[Update 01/08/2012: Neil Crowther drew to my attention that a subsequent case relating to housing benefit, Burnip v Birmingham City Council & Anor (Rev 1), rejected the approach of the court in NM v Islington towards the CRPD, discussed below.  In Burnip the court held that the CRPD was a legally binding treaty, and if there was any uncertainty in how domestic anti-discrimination laws should be interpreted, he would use the CRPD as an aid to interpretation.  The ruling in Burnip is reassuring for supporters of the CRPD, but less reassuring are the efforts of the government's own counsel to attempt to marginalise the CRPD's relevance by reference to its maturity and chronology (see paragraphs 19-22).  It seems extraordinary, and rather depressing, that a government should seek to distance itself in this way from a treaty that it has itself ratified!]

It's sad but ironic that the day before the Joint Committee on Human Rights (JCHR) launched its report on the rights of disabled people to independent living under Article 19 of the Convention of the Rights of Disabled Persons, the legal establishment confirmed that it was going to ignore the most important treaty on human rights for disabled people for a bit longer.  In R (NM) v London Borough of Islington & Ors [2012] the claimant was in prison and had "significant learning disabilities" [2], and two councils were squabbling over who would have to assess and meet his community care needs when he came up for parole.  NM had sought judicial review of Islington's refusal to conduct a community care assessment under s47 NHS and Community Care Act 1990, and they were refusing on grounds that he was not 'ordinarily resident' in Islington.  He failed in his claim, and I won't discuss the detail of the court's analysis of domestic community care law here (although Allan Norman of Celtic Knot has done a great job of that here and pointed out the flaws and worrying consequences of the ruling).  What is interesting is that the claimant had hoped to rely in part on Articles 19 and 26 CRPD - the right to independent living (19) and the right to habilitation and rehabilitation (26).  From paragraphs 98-107 the court considers whether the CRPD can be relied upon in domestic courts and concludes it cannot because:

• In UK law we operate what is called a 'dualist legal system', which means that if the state signs and international treaty it cannot generally be relied upon and enforced by the subjects of that state in domestic courts, unless it is 'incorporated' through additional legislation.  The Human Rights Act 1998 (HRA) is an example of 'incorporating' an international treaty (the European Convention on Human Rights, 'the Convention') into domestic law, so it can be relied upon in court.  I say 'generally' because there's all kinds of complicated detail, in particular around EU law, and also courts may use a treaty to determine what a state 'intended' a given statute to mean if it is ambiguous.  And so, the court said of the CRPD that it "...is an unincorporated international treaty and so does not have direct effect in English law. It came into force and was ratified by the United Kingdom after the NHSCCA was enacted, so it cannot act as a potential aid to interpretation of that statute in cases of ambiguity." [98] (if you're fascinated by this dualist/monist malarkey, there are some interesting discussions in books by Henkin and Shelton)
• Next, counsel for NM tried to argue that the CRPD should be used as an aid to interpretation of the Convention rights (specifically, Articles 5, 8 and 14) which can be relied upon in judicial review claims because of the HRA.  Although this would be novel in some respects, the Convention is a 'living instrument' and interpretation is supposed to move with the values and needs of the times (there's a handy list of cases expressing this at paragraph 100).  The court agreed that in principle that the CRPD could be used to interpret Convention rights, perhaps when enough European states had ratified it (a list of those that have not is given at 103), or when they had brought their own domestic laws and policies in line with it (I doubt if any have achieved this), or if it was "taken to be a leading international instrument establishing an appropriate standard against which to judge the conduct of member states of the Council of Europe" [102].  The court concluded that the CRPD had "not yet acquired this significance".
• The court acknowledged that the CRPD has been relied upon by the European Court of Human Rights (ECtHR) in several cases, and listed a few, but said that the CRPD itself was not 'determinative' in those cases.  The court found that 'Domestic authority on the point is still more exiguous', essentially finding that where the CRPD had been mentioned it was more a sort of 'pat on the back' for a ruling that had already been arrived at in other ways.
• And so, the court concluded that " I would be very hesitant to conclude that Articles 19 and 26 of the CRPD should be taken to inform the meaning and effect of any of Articles 5, 8 or 14 of the ECHR in the direct and extensive way suggested by [NM's counsel]"

My good friend Emily, who is studying the ratification process of the CRPD in Cyprus (a 'monist' state, where treaties can be relied upon directly in court) often asks why the CRPD is so woefully neglected in UK legal life: Emily, this is why.  Because we have a legal system where politicians can run around signing treaties promising aspirational rights to their citizens, without creating means for them to rely upon them in court (although, as Emily will point out, they will be able to complain to the UN directly through the Optional Protocol complaints mechanism).  A consequence of this is that the CRPD has generally been ignored by the legal (and medical, and social care, and political) establishment, because although it poses in many ways very significant problems for various of our laws and policies (as the JCHR report showed), nobody can rely upon it in court.  Whereas in countries with monist legal systems, no doubt, laywers and judges will be scrutinising the CRPD for ways in which it might be used by citizens of those countries, here the CRPD can be put on the shelf to be brought down once everybody else starts taking it seriously.  I'm sure there are terribly good reasons for dualist legal systems.  I'm sure all those treaties we've signed up to, full of vague and fuzzy principles because that was the only way to get all those states to agree, get into a terrible tangle with each other and with domestic law when 'brought home'.  I'm sure at a time where new legislation should be measured by the bookshelf metre it's probably a relief to practitioners of all shades not to have to learn acres of international law as well as their specialist area.  But still, I can't help but wonder what an unenforceable right is all about.

This case is not the only sign that the CRPD is not taken especially seriously in UK public life.  In my own field, despite the fact Article 12 and Article 14 pose very, very significant problems for the Mental Health Act 1983 and (I think) elements of the Mental Capacity Act 2005, these issues are barely ever mentioned in textbooks, research papers, conferences, policy documents, or even chats in the pub involving lawyers and health and social care professionals working in this field.  Is the CRPD just too challenging for us?  Peter Bartlett has written:

'There is a risk that psychiatric professionals simply write the most challenging aspects of the CRPD off as absurd, or adopt a somewhat hurt and defensive posture. That would be unfortunate as the human rights principles on which the CRPD is based are sound, and are likely to be broadly shared by most members of the psychiatric professions. It also ignores the problem that the existing justifications for compulsion are not particularly clearly articulated in a way that takes into account the political and social changes of the past 30 years. Aspects of the CRPD may seem extreme, but they are the result of a consistent approach to human rights in this area. As such, they warrant the intellectual engagement of psychiatric professionals. If there are reservations about the approach propounded for the CRPD, it is for users, practitioners and others in the field to come up with an equally clear and intellectually defensible alternative.

And more recently Phil Fennel and Urfan Khaliq wrote:

Among the community of international human rights lawyers, there is a perception that although all treaty bodies are legally equal, in reality some are more equal than others.

They go on to suggest that this might be related to the origins of the treaty, and the composition of the treaty bodies:

It is not a coincidence that, in international law circles, the most respected of the treaty bodies has historically been the Human Rights Committee, whose members have included some of the most eminent and highly respected international lawyers of their generation(s) and the quality of the Committee's legal analysis has been vastly superior to that of some of the other treaty bodies. However regrettable this may be, a treaty body such as the Disability Rights Committee, which has a large number of service users as Committee members, will struggle to dispel doubts among states parties about the (il)legitimacy of how they carry out their functions.

And so, the very feature of the CRPD which in the eyes of many disabled people and their supporters makes it credible and significant - the inclusion of disabled people ("service users") in the drafting and the treaty Committee - may make it less credible in the eyes of the legal establishment, because it hasn't got enough hotshot lawyers to it's name.

Perhaps I'm being a bit too pessimistic about this.  The CRPD has been taken up, and is being taken up increasingly, by NGO's and organisations like the JCHR and the Equality and Human Rights Commission.  The UK has at least signed and ratified it, and produced its first report on its efforts to implement the treaty (whatever one might think of the quality and accuracy of that report).  The CRPD is causing some of us to lose sleep, and I know there are events coming up where Article 12 and other CRPD rights will be increasingly discussed and debated (one is the Essex Autonomy Project's event on capacity assessments - I don't know if it's full yet, but I cannot recommend it highly enough if it's not - and it's free; the other event I know of I'll post more about when details are confirmed).  Most importantly, the CRPD is causing many of us to think, and rethink; it gives us new and important questions to answer.  But it's definitely not easy.

These things take time, and whatever else the CRPD is slowly beginning to prompt debate about issues like the right to independent living, what 'independent living' looks like, like whether it is ever acceptable to detain a person on disability related grounds (as opposed to more general risk related grounds), whether 'substitute decision-making' mechanisms like the Mental Capacity Act 2005 are morally and politically objectionable.  These are debates that have long taken place in the disability rights world, but perhaps the CRPD is helping them to rear their heads in new places - in courtrooms, in staffrooms, at conferences, in the wider political arena.  Yes the courts in cases like this are not bound by the CRPD, but although the route for this to happen will no doubt be long and twisty there are signs that in future, indirectly, they might be.  Cases like Stanev v Bulgaria (2012)  were surely heavily influenced by the debates around Article 12 CRPD, and no doubt future ECtHR cases will consider it as well.  But it would be helpful, I think, to see the domestic legal establishment play their part as well.  I was very disappointed that the Law Commission were so dismissive of the right to independent living in their Adult Social Care report:

4.36 At consultation, a principle based on independent living was often seen as a means of establishing enforceable legal rights to services. In our view, this is not the purpose of statutory principles. Furthermore, this concept is covered adequately by Articles 8 and 19 of the United Nations Convention on the Rights of Persons with Disabilities. We agree that a principle based on an assumption of home-based living would not be suitable to be included as a principle in the statute. The key issue should be the person’s wishes and feelings, and in effect this principle could skew choice in one particular direction.

4.9 A small majority of consultees who expressed a view argued that the statute should include a principle based on independent living, often on the basis that it would ensure rights to full citizenship for disabled people. However, others argued that independent living is too subjective, and could clash with the choice and control principle if, for example, a disabled person wants to be cared for in a communal setting.

That rather brisk analysis is not what I'd expected from a body as full of talent and expertise as the Law Commission.  The JCHR today, rightly, pointed out that 'independent living' is not the same as home based living, stressing that Article 19 is about having a choice of where and how one lives, and not being 'obliged to live in a particular living arrangement' [59].  Ahh, but there's the rub isn't it?  Real choice costs money, and certain kinds of living arrangements are much cheaper and easier for public authorities to provide than the living arrangements those who are not disabled and not reliant on public support to provide are able to enjoy.  That, essentially, is what the JCHR's report is all about.  I'm sure the Law Commission understood this was one possible interpretation of Article 19, but perhaps they also thought that it was just too radical, too expensive, to expect public authorities to make this a reality.  Politics, not law.  Because at base, that is all the CRPD is about.  About giving disabled people the rights to enjoy their lives in the same ways that non-disabled people can, even if that means extra support has to be provided to enable them to do so.  It sounds so simple doesn't it?

Further Reading

• Baroness Jane Campbell wrote about the danger of undoing the progress the disabled people's movement have achieved over the last 30 years for The Guardian.  Her piece emphasises the fragility of independence in relation to bureaucratic authority:

If my local authority cuts my care package or demands I transfer to NHS care (because they regard using a ventilator as the trigger for health services), I lose control of my life. I might have to leave parliament, or give up work altogether (because I need social care direct payments to do everything, from eating a sandwich to delivering a speech). I am only a few bureaucratic decisions away from returning to the inequality I endured at 18. It wouldn't take long to transform all my relationships with my colleagues, partner, family, friends into one which gives little or nothing to anyone. Everyone loses.

• Neil Crowther worked as a specialist advisor on the JCHR inquiry, and wrote about the JCHR report here, he comments:

...what was revealing about the Inquiry was how little awareness, understanding and employment of the Convention there is in the UK. Only a small minority of witnesses made reference to the Convention in their evidence, despite the Inquiry being conducted by the Parliamentary human rights Committee and the terms of reference clearly framing the inquiry as being about Article 19 of the UNCRPD. As the report states, the Convention has more teeth than people - including the Minister for Disabled People - realise.

• And the Mental Disability Advocacy Centre in their blog on the report also wrote that 'the CRPD is hard law, not soft law', commenting:

“This finding is of international importance”, said Oliver Lewis, MDAC Executive Director, “Our experience is that many governments are of the view that the CRPD is nothing more than a policy nicety, rather than a treaty which sets out legal obligations which governments must fulfil.”