EM - re Optional Protocol to the UN Convention on the Rights of Persons with Disabilities

Title

Optional Protocol to the UN Convention on the Rights of Persons with Disabilities

Command Paper: Cm 7644

Subject Matter

1.    Publication and intended subsequent ratification of the Optional Protocol to the UN Convention on the Rights of Persons with Disabilities (hereafter referred to as “The Optional Protocol” and “The Convention”) in respect of the United Kingdom of Great Britain and Northern Ireland.

2.    The Convention builds on existing international human rights instruments in order to specifically set out the human rights of disabled people. The Convention does not establish new human rights for disabled people but sets out with greater clarity the obligation on States to promote, protect, and ensure the human rights that disabled people already have. The UK ratified the Convention on 8 June 2009.

3.    The Optional Protocol is a separate treaty but is related to the Convention. It establishes a right of communication by individuals or groups of individuals to the UN Committee on the Rights of Persons with Disabilities (“the Committee”) which will oversee implementation of the Convention i.e. a mechanism that permits individuals and groups to bring complaints to the Committee against a State Party to the Protocol on grounds that it has breached its obligations under the Convention. The Optional Protocol also establishes an optional procedure for the Committee to undertake inquiries in respect of “grave or systematic violations” of Convention rights in a State.

Ministerial responsibility

4.    The Secretary of State for Work and Pensions has the lead policy responsibility. The Secretary of State for Foreign and Commonwealth Affairs has overall responsibility for the conclusion and implementation of treaty obligations by the UK and responsibility for their application in Overseas Territories. Many other Ministers and Departments have an interest including the Chancellor for the Exchequer, the Cabinet Office, the Lord Privy Seal and the Secretaries of States for: the Home Office; Defence; Children, Schools and Families; Health; Culture, Media and Sports; Justice; Transport; Communities and Local Government; Business, Innovation, and Skills; International Development; Environment, Food and Rural Affairs. The Convention covers some matters which, under the UK’s devolution settlements, are devolved, and the Devolved Administrations (DAs) have an interest, as well as the Secretaries of State for Scotland; Wales; and Northern Ireland.

Policy Considerations

(i)       General

5.       The Convention does not establish new human rights for disabled people but sets out those which disabled people are to enjoy on the same basis as people who are not disabled. The Convention has a wide field of application, and encompasses civil and political, as well as economic, social and cultural rights. These rights cover all areas of life including: the right to life, liberty and security of the person; access to justice; health; education; work; and provision for equal recognition of disabled people before the law.

6.       The UK has become a world leader in disability rights, and the Government’s commitment to disabled people has been demonstrated by, for example, the new Independent Living Strategy, and the legislation that placed a duty on public authorities to promote equality of opportunity for disabled people. Ratification of the Optional Protocol and the Convention are further demonstration of the Government’s aim to achieve equality for disabled people by 2025, as set out in the report “Improving the Life Chances of Disabled People”.

7.       The Convention can be ratified without ratification of the Optional Protocol, but not vice versa: the Optional Protocol is only open to States who have ratified or acceded to the main Convention. The Optional Protocol is additional to the Convention in that it provides for:

·        a right of individual petition to the Committee which will oversee the Convention i.e. a mechanism that permits individuals and groups of individuals within a State Party’s jurisdiction to bring complaints to the Committee against that state on the grounds that it has breached its obligations under the Convention; and

·        a procedure for the Committee to investigate “grave or systematic violations” of Convention rights in a State on the basis of reliable information received. This allows the Committee to undertake an investigation on its own initiative and without an individual complaint.

Individual complaints

8.       There are strict admissibility criteria to be considered by the Committee for the individual petition procedure. In particular, a communication to the Committee shall be considered as inadmissible where it is anonymous; an abuse of the process or is incompatible with the provisions of the Convention; or is manifestly ill-founded or unsubstantiated. The communication must not already have been examined by the Committee or have been or being examined under another procedure of international investigation or settlement. The facts that are the subject of the communication must have occurred after the entry into force of the Optional Protocol for the State Party concerned, unless the facts continued after that date. All available domestic remedies must be exhausted.

9.       If the Committee considers that a communication is admissible, it brings it to the attention of the State Party concerned in confidence. That State then has six months within which to provide the Committee with its views on the case, in writing, and details of any action taken. The Committee can make a request to the State concerned to take urgent interim action while a communication is under consideration, to avoid possible irreparable damage to the victim of the alleged violation (for example, to protect someone from the risk of abuse). Where a complaint is admissible and has been brought to the attention of the State Party concerned, the Committee will examine the merits of the communication and forward its suggestions and recommendations to the State Party concerned and to the petitioner.

10.     The UK does not regard decisions of UN treaty bodies, including the Disabilities Committee, to be legally binding and Committee decisions regarding complaints brought against the UK will not be legally binding on it, although of course will carry considerable political weight.  The Committee cannot award damages. It can recommend a course of action for the State Party to follow, and may have an influential effect, but it is for the State Party concerned to decide whether to accept the recommendation and how to implement it.

Inquiries

11.     Where the Committee receives reliable information indicating grave or systematic violations by a State Party of rights set forth in the Convention, it may conduct an inquiry, which can include an inspection, before it reaches a decision.  Such an inquiry would be conducted confidentially and the cooperation of the State Party would be sought at all stages of the proceedings. The State Party is given the opportunity to comment on the findings of the Committee. The Committee may invite the State Party to report on the measures it has taken in response to an inquiry, either as part of the report that it will make under Article 35 of the Convention, or separately.  

12.     Ratification of this Optional Protocol is without prejudice to decisions made in respect of UK accession to Optional Protocols to any existing or future international conventions.

13.     Ratification is in respect of the United Kingdom of Great Britain and Northern Ireland. The Overseas Territories and Crown Dependencies, and Sovereign Bases have been consulted about, and are considering, the extension of the UK’s ratification of the Convention and the OP to them.

ii)      Financial

14.     Any costs arising from ratification of the Optional Protocol will be covered within existing funding.

3. Reservation and Declarations

15.     None.

4. Implementation

16.     The Office for Disability Issues (ODI) will be designated as the UK focal point for matters relating to implementation of the Convention and Optional Protocol. ODI will co-ordinate work on individual complaints, working with individual Departments which will be responsible for defending their policy positions in the light of complaints made, and with FCO.

17.     The European Community is a signatory to the Convention and

proposes to become a party to it, as a Regional Integration Organisation, within the areas of its competence, in accordance with Convention Article 44. Regional Integration Organisations that have ratified or acceded to the Convention may also become a party to the Optional Protocol.  The European Commission’s proposals for accession to the Convention and Optional Protocol by the European Community are the subject of a separate scrutiny process.   The draft proposals for the relevant decisions for Community ratification of the Convention and the Optional Protocol are still under discussion between the Commission and EU Member States.

5. Consultations

18.     A detailed Parliamentary statement on progress towards ratification of the Convention was made by the Minister for Disabled People on 6 May 2008, and this identified the state of play in respect of the European Community’s proposals and the Optional Protocol.  Subsequently there have been a number of discussions with disabled people and their organisations, primarily around the possible reservations/interpretative declarations, and providing an update on the position on the Optional Protocol. The basis on which the Convention is to be ratified was set out in a detailed Parliamentary statement on 13 May 2009. The Government has continued to provide updates on the Convention and Optional Protocol via two websites: www.odi.gov.uk; and www.direct.gov.uk.  Information has also been available on www.un-convention.info run by an independent advisor to the Government on disability and human rights.

19.     The Government will continue to work with the independent element of the framework, to promote, protect and monitor implementation of the Convention and with disabled people and their organisations, as the UK implements the Convention.

                      Jonathan Shaw

                      Parliamentary Under Secretary of State

                      The Department for Work and Pensions