Human rights and disabled people

I was reading Disability Rights in Europe: from theory to practice, and came across a reference to the cases of Skjoldager v Sweden (( (1995) 22504/93 )) and Malone v UK (( (1996) 25290/94) )) at the European Court of Human Rights (“the ECtHR”).

Skjoldager v Sweden

The applicant, a psychologist, visited a care home for people with learning difficulties where he found a number of residents unlawfully locked in their rooms. Following his report, action was taken which eventually resulted in the removal of the locks. He was, however, denied further access to the residents. Where unlawful detention of this nature has occurred, Article 5(5) requires that compensation be paid. Because none was offered to the residents, the applicant complained to the European Commission. He did so in a represenative capacity, but in his own name because the muncipality had refused to provide him with the names of the residents (who were incapable of lodging the complaints themselves). The case was rejected on the ground that the applicant had no specific authority to make the complaint. The residents were, therefore, effectively outside the protection of the Convention.

Malone v UK

Mandy Malone, a wheelchair user, was the defendant in possession proceedings relating to her council house. Her request that these be heard in a court near to her home was refused. Consequently, in order to reach the court, she had to leave home at 4.30am and undertake a 950 kilometre round trip. As a result, she was confined to her bed for four days and requried medical assistance. Her complaint related to the unfairness of the process and the inaccessibility of the court building (she had to be carried up the steps of the court and experienced ‘excruciating discomfort’ due to the lack of suitable toilet facilities). The Strasbourg complaint was rejected on the grounds that she had ‘failed to appropriately bring to the attention of the court her difficulties’ (( Lawson, A and Gooding, C, Disability Rights in Europe: from theory to practice, 2005 at 28 )).

These two cases serve as a reminder of how difficult it can be to enforce disability rights at the ECtHR, and that the ECtHR”continues to have profound difficulty in identifying and addressing state responsibility for discrimination against disabled people” (( Ibid )). Indeed, there is a paradox here, as the Convention is also silent on the rights of children and gay and lesbian people, but this has not prevented the ECtHR developing caselaw to remdy the injustices they face.

If the ECtHR had some imagination, they would ensure that Article 14 specifically includes disability as an example of unlawful discrimination.

Asylum: Restrictions on Human Rights Appeals

The adjudicator’s decision is final.

– If an immigration officer asked the applicant to show a valid passport but no reasonable explanation was given for not having one;
– the applicant showed an invalid passport but did not say it was invalid;
– the claim was frivolous, vexatious or clearly fraudulent;
– the claim was made after the applicant was refused entry to the UK for another reason;
– the claim was made after the decision to deport the applicant had been made;
– the claim was made after directions for removal as an illegal entrant were given.

In asylum cases only:

– the claim did not concern a fear of persecution under the Refugee Convention
– the claim showed a fear of persecution but the fear was clearly unfounded
– the claim showed a fear of persecution but the cause of that fear had gone away

In Human Rights cases only:

– the claim did not concern a right under the Human Rights Convention
– the claim was clearly unfounded

Proposed Commission for Equality & Human Rights

Last week a White Paper was published: Fairness for All: A New Commission for Equality and Human Rights by the DTI.

It is proposed that a single body is established combining the existing Commissions: Disability Rights Commission, Commission for Racial Equality and the Equal Opportunities Commission; in addition to providing support for the first time, Human Rights, as prescribed by the Human Rights Act 1998.

Without having read the paper, personally welcome such a move, as it merges each of the Commissions, and quite frankly could leave scope for not treating issues in particular vacuums. For example, one could be the subject of disability discrimination in addition to sex equality issues.

However, we do still have some way to go in bringing laws into line, and I would hope that primary legislation addresses this. For example, whilst there is such a concept of indirect discrimination in relation to sex, nothing exists in terms of disability. This puts disabled people at a significant disadvantage.

Another advantage of a single commission enables scope to be widened in future. For example, I have to identify myself as disabled this is what administrative systems demand of me, if I seek redress. Incorporation of a single commission, I would hope that it would allow secondary legislation scope to expand its remit to cover discrimination in relation to minority languages; including British Sign Language (BSL), should much sought after policy development and legislation happen.

In terms of management, I certainly would not support a move for such a body to be managed by the current DRC. DRC as it stands is not mainstream nor accessible enough, in representing out rights. Such a body would need to take the best from existing Commissions and incorporating this into a new body entirely.

For those wishing to respond to this consultation paper, the deadline is the 6 August 2004.