The Slow Progress On Disabled Peoples’ Rights

by Dominic McDevitt

There has been much said about the issue of Civil Rights for disabled people. Some from the current Coalition Administration between the Conservatives and Liberal Democrats have sought to infer that the Conservatives were somehow liberators of disabled people and that the Conservative Administration between 1992 and 1997 led the way on disability issues.

The reality is that the Campaign for full and enforceable Civil Rights for Disabled people has a long and turbulent history with many setbacks and disappointments and injustices done along the way. There is much evidence to demonstrate how disabled people have found ourselves “pushed to the back of the queue” when the equalities agenda has been addressed.

In many respects disabled people have at best been treated as an afterthought. The social stigmas around disability and disabled people in society have been deeply engrained and remain stubbornly present to this day.

The law has often been slow to react to issues in society and that is certainly the case when considering disability issues. The “low priority” afforded to disabled people can be seen from the weak and poorly enforced legislation that took the form of the Disabled Persons (Employment) Acts of 1944 and 1958. Following these Statues there was a voluntary register for Disabled People and a quota system established. This quota system was supposed to require employers of 20 or more people to employ a workforce of disabled people to the proportion of 3% of the total workforce.¹This legislation lacked an effective enforcement mechanism, and the prejudice and hostility to disabled people in the workplace set the tone for many years and as a result was effectively rendered worthless .

It would seem that the attitude that disabled people were a ‘burden’ and a section of society to be addressed as a ‘problem’, rather than as a section of society with something to offer, and part of the community to be engaged with, was the prevailing one. The patronising and paternalistic attitude has unfortunately been a longstanding undercurrent in the UK and does seem to be resurgent since the arrival of austerity politics.

It is interesting to note that there were several attempts to introduce equality legislation for Disabled People but all of these were prevented from successfully completing the necessary Parliamentary stages to become law. Edwin Shorts and Claire de Than observe in their Book²

“Between 1982 and 1994 there were seventeen attempts to reform the law in this area by introducing Bills most of which had cross party support, yet none of them became law. It was only in 1994 that the campaign reached such heights of popularity and publicity that legislation seemed inevitable, with Disabled people mounting protests such as sit ins… ….In 1994 the Government defeated the last of the attempts to legislate by Private Members’ Bill…and introduced a consultation document…”

It would be erroneous to contend that somehow the United Kingdom Government led the way in the field of Disability Rights Law, The United States of America acted considerably sooner and in fact it was their legislation which sought to open up a new frontier and value the contribution made by disabled citizens. The Americans with Disabilities Act (1990) was championed by Senator Edward M Kennedy³ and Senator Tom Harkin⁴ The Americans With Disabilities Act which was passed by the Senate towards the end of 1989 and signed into Law by the Republican President, George H.W Bush In July of 1990 built on America’s pervious Civil Rights legislation from the 1960’s . Senator Kennedy stated⁵

“Today’s Action by the Senate marks an historic step in the long journey to complete the unfinished business of America and bring full civil rights and fair opportunity to all our citizens. In a sense this legislation is an emancipation proclamation……and America will be a better, fairer, and stronger nation because of it. 43 Million disabled men, women and children will benefit from our action. For too long, they have been invisible…denied opportunity, victimised by prejudice, excluded from everyday activities of society…….Mindless physical barriers and outdated social attitudes have made them second class citizens for too long. Now with this legislation, they will have a fair chance to participate in the Mainstream of American life. This is a proud day in the history of civil rights. It is difficult to believe that this Congress will enact a more far-reaching or more important bill.”

It could be contended that the American legislation embarrassed the Government of the day in the UK into action, after all it should not be forgotten that there had been other Equalities legislation passed in the United Kingdom, to address Race and Gender issues in the 1970’s onwards yet, it was not until the mid-nineties that disability was taken seriously. It is perhaps more accurate to describe the steps taken which led to the passage of the Disability Discrimination Act (1995) as grudgingly done.

Where the Americans blazed the trail the Political establishment in the UK merely followed. A clear example of this can be seen from the fact that the American Law introduced the notion of “Reasonable accommodation”, this is something we can see borrowed in the Disability Discrimination Act (1995) (DDA). The American law was considerably more comprehensive with a far bigger reach than the UK token measure, which had many glaring omissions.

The Disability Discrimination Act contained some massive omissions, such as failing to apply to education. It is worth observing that if a person is denied access to a good quality education, it will be significantly more difficult for that individual to succeed and progress in society. Regrettably it took until 2001 for Education to be properly included in Disability Discrimination legislation, this took the form of the Special Educational Needs and Disability Rights in Education Act (2001).

While there are those who would seek to portray the 1995 Act as being an adequate response to the needs and legitimate concerns of disabled people, this is far from the case, in reality it could even be contended that this legislation merely underscored the second-class citizenship imposed on disabled people. It was a weak piece of legislation that bore the hallmarks of tokenism rather than being a herald of new social change, valuing the contribution of disabled people. This legislation could perhaps be described as a rather half-hearted effort. This was because of the ‘built in’ weaknesses at the very heart of the Act some of these were as follows:-

• The Act only applied to employers that employed 20 or more people. The key point here is that as has been observed above, the law merely required an employer to make “Reasonable adjustment”, why should any employer of any size need an exemption from Acting reasonably?⁶
• The Disability Discrimination Act only addressed direct discrimination and created a situation where indirect discrimination could be justified
• The Act established the “National Disability Council”, which was merely a talking shop, with no enforcement powers apparently based on the flawed contention that attitudinal changes to the deeply engrained prejudice and bigotry towards disabled people could be brought about merely by education of non-disabled people without the need to give disabled people a commission to assist in ensuring the law was taken seriously.

A key area where the 1995 legislation passed by the then Conservative Administration led by John Major, denied parity to disabled people as compared to other groups with Equality legislation on the Statute Book was the failure to provide for an adequate enforcement Commission like the ones which had been created to enforce laws on Race and Gender Discrimination. It is worth noting that the Legislation covering both Race and Gender had been in operation for around 20 years at the time of the Disability Discrimination Act (1995), this in itself serves as a demonstration of how far Disabled people had been left behind, the failure to include an enforcement Commission was a serious setback and one which was bitterly resented by many disabled people. The establishment of the Disability Rights Commission was a key achievement of the Blair Administration.⁷

In the Debate on the Disability Rights Commission Bill it was clear that there was a great degree of resentment about the fact that the previous Conservative Government had ignored the need for an enforcement mechanism.

Roger Berry, the then MP for Kingswood,⁸who himself had been a key Sponsor of the Civil Rights (Disabled Persons’) Bill, a Private Members’ Bill ‘talked out’ by the Government in 1994⁹ observed¹⁰

“One cannot forget entirely the fact that the previous Government were forced to introduce the Disability Discrimination Act in 1995 after years of doing everything imaginable-and even things that I thought were unimaginable to block that legislation… … The then Government established the National Disability Council……… The National Disability Council is the only Government agency that I can recall that campaigned for its own abolition almost from day one. It recognised that we needed a commission….Let no one pretend that we would today be debating the Third Reading of the Disability Rights Commission Bill without a Labour victory at the last general election. We are debating the Bill also because the Government have moved with great speed: they found the legislative time to introduce this legislation within…two years of taking office…”

The long awaited Disability Rights Commission opened to begin the serious task of its enforcement duties in April 2000.

The establishment of an enforcement Commission was far from the only area which needed urgent action one of the steps that was taken in December 1997 was the Establishment of a Disability Rights Taskforce. This body had the task of examining the gaps in protection of the rights of disabled people and making recommendations to the Government relating to changes in the law. ¹¹ The Specific terms of reference in which the Taskforce operated were to:-

“Consider how best to secure, comprehensive, enforceable civil rights for disabled people within the context of our wider society and to make recommendations on the role and functions of a Disability Rights Commission… … The Task Force will take full account of the costs as well as the benefits of any proposals, so far as quantifiable and practicable, and in particular ensure that its recommendations for a Disability Rights Commission achieve value for money for the taxpayer”¹²

The Taskforce was made up of a wide variety of representatives, some of whom were disabled people as well as representatives of Organisations with links to different types of impairment together with Employers organisations and those with links to the Trade Union Movement, representing Employees. The Taskforce final report entitled From Exclusion to Inclusion¹³ made over 150 recommendations for changes in almost all aspects of life the report made recommendations concerning:-

• The definition of disability
• Education
• Employment
• Access to Goods, Services and Premises
• Travel
• The Environment and Housing
• Participation in Public Life
• Local Government, Health and Social Services

It is incorrect to contend that the situation facing disabled people was adequately addressed by the weak legislation passed in 1995, as we have already seen, it lacked an effective enforcement mechanism, and in many areas of life in modern society, left disabled people with little or no protection. We must not forget these were in basic areas where others could take basic rights for granted. Indeed it could be contended that the slow pace of change was in itself an indication of the second-class status afforded to disabled people.

Another factor to bear in mind when considering these issues is the fact that the changes were often phased in so that Employers, Providers of goods and services etc, got time to ‘get used’ to the new obligations placed on them. While it could be contended that this was done so as not to “put off” those who would be affected, it could be contended that the negative ramification of the phased slow approach was the loss of impetus and perhaps, to some degree an inference that disabled people should apologise for seeking to assert their legitimate right to equality which may have sent out a mixed message, that somehow disabled people “didn’t want to put anyone to any trouble” or be a “nuisance” .

It was a flawed argument in the mid 1990’s to contend that the situation could be improved for disabled people simply by education alone with a minimal reliance on law. This seemed to be the view of those who opposed disabled people’s Civil Rights laws¹⁴. The danger resulting from such an approach is that the serious nature of the issues at stake can become portrayed as mere “political correctness” and this can do damage which resonates long into the future.

The other great barrier for disabled people has and is, the attitudinal one which holds disabled people back as a result of deeply ingrained prejudice and bigotry that has tainted the approach to disabled people and the issues affecting us for generations. Too often there is a culture of low expectation where disabled people are concerned and a lack of political will to address disability issues because disabled people have and to a large extent continue to be seen as needing a paternalistic and patronising approach where everything done to us, is for our own good . regrettably there has been a failure to acknowledge effectively that the attitudinal barriers weaken the effects of any legal change and alongside this, the simple, yet basic fact that disabled people have the same aspirations as anyone else, has been and still is too easily ignored.

Law alone will not soften the hard bigoted attitudes that often confront disabled people as we seek to assert our rightful place in society as equal citizens. Disabled Peoples Rights needed then, and still need now to be looked at from this perspective also This was an aspect which was not lost on the Disability Rights Taskforce there they observe¹⁵ that:-

“We welcome the Government’s recognition of the weaknesses in the DDA and its…commitment to comprehensive and enforceable civil rights for disabled people……we felt it was essential attitudes towards disabled people were also changed if we are to make real progress. Changing attitudes should not be left to disability organisations or Government alone. It is a task all in society must share from teachers educating children about the value of diversity to businesses changing the attitudes of employees and customers…”

The then Government issued a formal response to the final report in a document entitled Towards inclusion – Civil Rights for Disabled people Government response to the Disability Rights Taskforce¹⁶ This document provided significant progress and eventually led to the Disability Discrimination Act (2005) getting to this point was a little drawn out as it was subject to a draft Bill, the explanation for such a move being the desire to get things right.

From this though, it is clear to see that the vast majority of the improvements in the recognition and enforcement of the Rights of Disabled people happened from the late 1990’s onwards and a significant piece of legislation to close the chasms in the 1995 Act came into effect 10 years after that Act.

Things moved on a stage further when there was recognition that people were encountering discrimination on more than one ground. Firstly there was the establishment of a single Equality commission and then the Equality Act (2010) which sought to codify all the Equality legislation into One Act.

It is also important not to underestimate the impact of the ratification of the United Nations Convention on the Rights of People with Disabilities (2007) while this does not seek to grant new rights it did however seek to make a statement about the basic Rights that Disabled people should have access to. The Handbook for Parliamentarians on the Convention¹⁷ states¹⁸

“…The Convention on the Rights of Persons with Disabilities is the response

of the international community to the long history of discrimination, exclusion

and dehumanization of persons with disabilities. It is historic and

groundbreaking in many ways, being the fastest negotiated human rights treaty

ever and the first of the twenty-first century. The Convention is the result

of three years of negotiations involving civil society, Governments, national

human rights institutions and international organizations. After adopting

the Convention in the United Nations General Assembly in December 2006,

a record number of countries demonstrated their commitment to respecting

the rights of persons with disabilities by signing the Convention and Optional

Protocol when they opened for signature in March 2007.

The Convention ensures that the world’s largest minority enjoys the same

rights and opportunities as everyone else. It covers the many areas where

persons with disabilities have been discriminated against including access to

justice; participation in political and public life; education; employment; freedom

from torture, exploitation and violence, as well as freedom of movement.

Under the Optional Protocol, individuals of States parties to the Protocol who

allege violations of their rights, and who have exhausted national remedies,

can seek redress from an independent international body.

The Convention is long overdue. It is over 25 years since the 1981

International Year of Disabled Persons brought global attention to the issues

affecting persons with disabilities. …”

It was unfortunate that when the UK Government ratified the Convention in 2009, they made reservation from Article 24 with regard to maintaining segregation in education in certain circumstances, the Reservation stated

“ Education – Convention Article 24 Clause 2 (a) and 2 (b)
The United Kingdom reserves the right for disabled children to be educated outside their local community where more appropriate education provision is available elsewhere. Nevertheless, parents of disabled children have the same opportunity as other parents to state a preference for the school at which they wish their child to be educated”¹⁹.

Despite the Reservations made by the UK Government in relation to the United Nations Convention on the Rights of People with Disabilities (2007), its ratification did send out an important message about the progress that was and had been made in relation to the rights of disabled people. It is fair to say that in the UK, disabled people’s Rights advanced significantly during the period 1997-2010 before the Current Coalition took office. By contrast, since the Coalition took office, we have seen a situation develop where it is more difficult for disabled people to access their rights. While it is not the purpose of this document to set out the litany of attacks on the rights of disabled people, it is hoped that the reader will have gained an appreciation of the fact that Disabled people’s Rights made significant and steady progress which has now been significantly halted and worryingly, perhaps even dismantled.

Disabled People should not have to accept second-class citizenship. The simple reality is that disabled people have the same aspirations as anyone else. No Government, of whatever persuasion should ignore this fact or have difficulty accepting it. Regrettably however, history shows us that they have . What is needed is a commitment and the political will to ensure we do not get returned to the dark days of the past where the negative attitudes to disabled people set the agenda.

What we have seen is that Disabled People have always had a significant battle on our hands for the Rights others can take for granted. It is important that we fight to protect the gains that were slowly and painstakingly made and continue the fight to ensure that disabled people can take our rightful place as full equals in society.

October 2014