INTRODUCTION

In analysing the approach of the European Court of Human Rights to socio-economic rights, it is necessary to commence with a rejection of an overly simplistic taxonomy: the categorisation of rights as either social and economic or civil and political is an entirely artificial construct. It is simply not possible to differentiate (save in the loosest possible terms) between such assorted rights. There is no bright line that separates rights into two distinct categories – no rational, and precious little pragmatic, justification for such a divide.

The Strasbourg Court has, to its credit, rejected the argument that the European Convention on Human Rights is a treaty solely concerned with civil and political rights. As long ago as 1979, in one of its most significant judgments, Airey v. Ireland the Court held that:

It follows that the ‘mere fact’ that a human rights violation is capable of being articulated in the language of socio-economic rights does not of itself mean that the Strasbourg Court will cede jurisdiction to the Executive. The Court nevertheless recognises that questions that concern the distribution of scarce resources are often better addressed by individual governments.

• • UN (1966) International Covenant on Civil and Political Rights.

• • UN (1966) International Covenant on Economic, Social and Cultural Rights.

• • UN (1971) Declaration on the Rights of Mentally Retarded Persons.

• • UN (1975) Declaration on the Rights of Disabled Persons.

• • UN (1991) Principles for the Protection of Persons with Mental Illnesses and the Improvement of Mental Health Care.

• • UN (1993) Standard Rules on the Equalization of Opportunities for Persons with Disabilities.

• • UN (1994) General Comment No 5, Persons with Disabilities Committee on Economic, Social and Cultural Rights.

• • UN (1994) Towards full integration of persons with disabilities in society: implementation of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, and of the Long-Term Strategy to Implement the World Programme of Action concerning Disabled Persons to the Year 2000 and Beyond.

• • COE (1965) European Social Charter, (and revised 1999).

• • COE (1992) Recommendation No R (92) 6 (Committee of Ministers) 9 April 1992 on a coherent policy for people with disabilities.

• • COE (1990) Recommendation No R (90) 22 on the protection of the mental health of certain vulnerable groups in society.

• • COE (1989) European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

• • COE (1999) European Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine.

• • COE (2000) White Paper on the protection of the human rights and dignity of people suffering from mental disorder, especially those placed as involuntary patients in a psychiatric establishment.

These instruments can be accessed at various Internet addresses, although the University of Minnesota Human Rights Library has an excellent site at: www1.umn.edu/humanrts/index.html

For a comprehensive overview of the UN disability related provisions, see Quinn and Degener, 2000.

Introduction

This chapter seeks to identify and review those court and tribunal decisions that are of direct relevance to the human rights of disabled people. Primarily these are judgments of the European Court of Human Rights, although reference is also made to the increasing body of case law emerging from our own domestic courts on this issue. Where relevant, reference is also made to decisions of constitutional courts in other jurisdictions, which although not binding on British courts are increasingly being considered as persuasive when a new or difficult question of law arises. Before embarking on this analysis it is important to address what is perhaps a central theme of this text: namely the reasons why there have been comparatively few complaints by disabled people to the Strasbourg Court.

The issue of access

Rights without remedies are hypothetical and illusory. For the rights embodied in instruments such as the European Convention on Human Rights, to be a concrete reality in the lives of disabled people, they must be accompanied by accessible and effective enforcement mechanisms.

In practice, however, many legal remedies are anything but accessible to disabled people. The obstacles to access take many of the traditional forms highlighted by the proponents of the social model of disability. They include physical barriers to older court buildings, the imposition of particular rules for people considered to lack mental capacity, the lack of adequate advocacy and legal aid support as well as the attitudes of lawyers and administrators. A measure of the problem is the dearth of complaints by disabled people to the Court in Strasbourg – explicable only in terms of the severe impediments disabled people face in gaining access to the civil justice process. It may indeed be that the severity of impairment bears a direct relationship with the severity of the impediment encountered.

One of the earliest Strasbourg judgments concerning access to the civil justice process concerned restrictions placed upon the access of prisoners to lawyers, Golder v UK (1975). In this case, the UK argued that although the relevant Article of the Convention, Article 6(1), guaranteed the right to a fair hearing it did not oblige the state to enable applicants to have access to lawyers/advocates in order to instigate the civil process.

Introduction

This chapter describes the ways in which the language of human rights has, over the last two decades, come to the fore in disability politics, policy and research in the UK. It reviews a number of factors that have been identified as impacting on disabled people's human rights together with key concepts which have emerged over this period to explain the social mechanisms that underlie these factors.

Some of these issues have been addressed in Chapter 1, not least the process of redefinition by which the question of discrimination has been brought into the foreground. As we have suggested, through the related discourses, disabled children and adults are defined less as patients in need of help or cure, and more as disenfranchised citizens experiencing discrimination and oppression. Consequently, many experiences which were hitherto regarded as inevitable, and negative consequences of impairment are redrawn as unacceptable and unnecessary discrimination – as violations of human rights.

Access and barriers to access

The increased focus on the limiting nature of the context external to the disabled person has brought into frequent use the overarching, twin concepts of access and barriers to access. The notion of reducing barriers and creating social and physical environments and processes that are accessible to, and usable by, disabled people, has been increasingly recognised and developed since the 1970s (Zarb, 1995). It has also been acknowledged that restricted access in one area can create a barrier to access and participation in another. The telling photograph on the cover of The politics of disablement (Oliver, 1990), shows a wheelchair user at the bottom of a flight of steps leading to the entrance to a polling station. It is also acknowledged that experiences frequently associated with disability such as poverty, may also compound and magnify many of the barriers to access which disabled people face. Not being able to afford driving lessons and a suitable car, may leave an individual reliant on a public transport system which still has enormous barriers to access and use by disabled people.

The use of these concepts is widespread and is applied to a range of diverse circumstances. Perhaps the use that is familiar to most people is in relation to the built environment and transport. It can also be applied in relation to a much broader range of concepts and experiences affecting an individual's quality of life.

Introduction

This chapter provides an overview of major legislative and policy developments affecting disabled people in the UK in the half century following the end of the Second World War, a period coterminus with that following the ratification of the European Convention on Human Rights (the Convention) by the UK.

There are a number of reasons for providing such an overview. First, both the European Convention and the 1998 Human Rights Act (HRA) have to be understood in relation to the policy and legislative contexts in which they are to be applied. They intersect with existing legislation. In addition, as will be outlined in Chapter 2, a core dimension of both the Convention and the HRA concerns the obligations of public bodies to individual citizens. This makes it important to understand the nature of state action and inaction in relation to disabled children and adults over this period. Any exploration of this kind reveals, among other things, the ways in which the disabled person's relationship with the state has been characterised by a combination of essential provision conjoined with oppression and violation of their human rights. Another and important dimension for any contextualising analysis of the type envisaged in this chapter concerns the various forces that have challenged the status quo and promoted change. In the late 20th century, the Disabled People's Movement proved to be one such force and its impact is discussed at the end of the chapter.

In Chapter 2 we discuss how in the context of international conventions and covenants, human rights may be grouped into two categories: civil and political on the one hand and economic, social and cultural on the other. In this chapter, therefore, we aim to lay the groundwork for the socio-legal discussions that follow, by grouping the policy and legislative developments of the post-war period within the same categories.

Civil and political rights embrace what are sometimes known as ‘negative’ or ‘hard’ rights. Essentially the defining characteristic of such rights is that they are concerned with acts that the state should refrain from doing. Examples include the right not to be subjected to torture or abuse, discrimination, arbitrary imprisonment or unreasonable state interference with one's family or private life.

The 1988 Human Rights Act

The full text of the 1998 Human Rights Act and other UK legislation since 1988 can be found on the HMSO web site at:

www.legislation.hmso.gov.uk/acts.htm

European Court of Human Rights

Almost all the Court judgments and Commission decisions are accessible on the Council of Europe case research website at:

www.echr.coe.int/hudoc/

Other international Human Rights Covenants and so on

Details of these can be obtained from various sites, although the University of Minnesota Human Rights Centre has an excellent website at:

www1.umn.edu/humanrts/

General information on the 1998 Human Rights Act

The Lord Chancellor's office human rights website is to be found at:

www.lcd.gov.uk/hract/hramenu.htm

Court of Appeal decisions

Some decisions of the Court of Appeal can be accessed from the Court Service website at:

www.courtservice.gov.uk/

House of Lords judgments

All recent (post-1998 Human Rights Act) judgments of the House of Lords are available on the Internet at:

www.parliament.the-stationery-office.co.uk/pa/ld199697/ldjudgmt/ ldjudgmt.htm

US Supreme Court judgments

US Supreme Court judgments can be accessed through various search engines, including:

www.findlaw.com/casecode/supreme.html

Introduction

This final chapter explores some of the ways in which the 1998 Human Rights Act may be made to work for the benefit of disabled children and adults. In any such discussion, it is important to be realistic about the limitations as well as the positive potential of any course of action. The 1998 Human Rights Act has undoubtedly raised expectations and generated considerable excitement. It protects many rights that are of fundamental relevance to disabled people. Nevertheless, it is as well to bear in mind Sir Stephen Sedley's comments prior to the Act coming into force, when he warned that without judicial activism “society's losers and winners will merely become the same losers and winners under a Human Rights Act” (Sedley, 1997, p 458).

Any discussion of the potential impact of the Act on disabled people's human rights, therefore, needs to face four-square, the implications of their relatively powerless position. There is little point in reviewing solely in principle, the potential impact of the Act on disabled people's human rights. Any serious debate must also look at the barriers to making it work for them in practice, together with initiatives which might reduce such impediments – without these, access to justice may prove illusory.

It is not appropriate at this stage to be prescriptive about the action which individuals or organisations should take in order to make the Convention rights a concrete reality in the lives of disabled people, since the debate about the range of approaches and their implications is ongoing. It is, however, important to be clear that in recognising the fact that many disabled people are not best placed to gain access to justice, we are not suggesting that they should be characterised as passive, unable to act on situations affecting their lives, or bereft of opinions on matters which impact on their fundamental rights. The chapter explores three main approaches which should clearly not be regarded as mutually exclusive:

• • redress for individuals;

• • changing the political and public climate;

• • changing practice in public authorities.

Redress for individuals

The significance of the 1998 Human Rights Act lies neither in the introduction of any new rights, nor in any ostensible transformation in perceptions as to what is, or is not, good practice. It is important primarily because it provides a new (and at times more precise) language with which to articulate existing concerns about poor or unacceptable practice.

Article 1

Obligation to respect human rights

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

Article 2

Right to life

• 1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

• 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

• (a) in defence of any person from unlawful violence;

• (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

• (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Article 3

Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 4

Prohibition of slavery and forced labour

• 1. No one shall be held in slavery or servitude.

• 2. No one shall be required to perform forced or compulsory labour.

• 3. For the purpose of this Article the term ‘forced or compulsory labour’ shall not include:

• (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

• (b) any service of a military character or, in the case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

• (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

• (d) any work or service which forms part of normal civic obligations.

Article 5

Right to liberty and security

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

• (a) the lawful detention of a person after conviction by a competent court;

• (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

Introduction

In this chapter we provide a brief history of European human rights law and procedures prior to the implementation of the 1998 Human Rights Act (HRA, 1998). This is intended to explain the Act's relationship with the European Convention on Human Rights and other international human rights treaties. The main body of the chapter provides an account of the substance of the Act and key procedures associated with it. This is intended to provide a basic grounding in its provisions – its scope and limitations.

In this, and succeeding chapters, reference is made to a number of legal provisions and judgments. Those readers without access to a law library, can find many of the judgments and legal provisions on the internet. We provide a note of some of the key websites as Appendix III on page 121.

The incorporation of the European Convention on Human Rights

The European Convention on Human Rights (the Convention) was finally incorporated into the domestic law of the United Kingdom on 2 October 2000. Since then its provisions and the case law of the European Court of Human Rights (the Court) can be referred to directly in British courts (Section 2 of the 1998 Human Rights Act), and so far as is possible, our courts must reach decisions that are compatible with the Convention rights (Section 3 of the 1998 Human Rights Act).

Of course, even before its incorporation, the Convention exerted a strong influence over our courts and legislature. Ever since the UK ratified the Convention in 1950 and thereby agreed to be bound by the judgments of its Court, it has shaped – proactively or reactively – our legal system. Thus a finding by the Court in 1989 that restrictions on the rights of service users to access their social services files violated Article 8 (Gaskin v UK [1989]) led to the injustice being remedied by the enactment of the Data Protection Act in 1998. Almost certainly, however, the Convention's greatest legislative influence has resulted from parliament's conscious effort to ‘Strasbourg-proof ‘ new legislation.

The 1998 Human Rights Act has now elevated this process to a statutory obligation; Section 19 requiring that before the second reading of a Bill the relevant Minister must make “a statement of compatibility”, which is in effect formal assurance that the government addressed this question in the drafting of the Bill.

Much of the literature that seeks to describe the experiences of disabled people using the language of human rights has been written by non-lawyers. This literature has proved to be of enormous importance, since it has enabled the development of discourses which explore the whole spectrum of disabled people's experiences, untrammelled by the constraints of the legalistic approach. Human rights cannot ultimately be defined by or confined to International Conventions and Covenants. While these documents are within the province of the law, they usually reflect and condense prevalent philosophies of rights developed, for the most part, by non-lawyers.

The dearth of legal texts in this field however, has been the subject of comment. Hendriks (1999, p 113) for example, refers to the silence of human rights scholars, and Gostin and Mann (1999, p 54) comment upon a similar absence in the field of health and human rights. It is hoped that in considering the implications of the Human Rights Act for disabled people, this book will, in addition to analysing the reasons for this relative silence, make a small contribution towards redressing the balance.

On one level, the lack of legal comment on disabled people's human rights has a relatively straightforward explanation. Until recently, with the exception of the field of mental health detention, there have been remarkably few human rights cases litigated in international and domestic tribunals that are of direct relevance to disabled people. Case law is the raw material for most legal commentaries and without it there is only a limited amount that can be said. Such an explanation however, begs the inevitable question as to why there have been so few cases. We suggest the answer does not lie in the fact that Human Rights Conventions are not directly relevant to the experiences of disabled people, but in the problem of access. Simply, that disabled people have been severely handicapped by the legal process in accessing these rights. In many respects, the problem is not so much with the rights as with the lack of access to effective remedies. Without significant procedural reform, it is likely that, for most disabled people, these rights will remain illusory and hypothetical. We regard this to be one of the central themes of the book.