The UN Convention on the Rights of Persons with Disabilities - Human Rights Joint Committee Contents

4.  Proposals for reservations

51.  The UNCRPD provides that reservations incompatible with the object and purpose of the Convention shall not be permitted.[52] This reflects the general law of treaties. Generally, States will enter reservations to treaties where they wish to reserve an existing position in national law which may not be compatible with all the requirements of the treaty. At the time of writing, only four States had entered reservations to the Convention. El Salvador has entered a reservation which purports to give priority to the domestic constitution when conflicts arise; Malta and Poland have both entered reservations in relation to the domestic law on abortion and Mauritius has entered a reservation on risk and humanitarian emergencies. A number of interpretative declarations have also been entered by Australia, Egypt, Malta, Mexico and the Netherlands.[53]

52.  Currently, we understand that the Government is considering at least four reservations to the UNCRPD, in respect of immigration, education, service in the military and benefits appointees. A number of additional interpretative declarations are also being considered, including in respect of the right to education. Without the text of the proposed interpretative declarations we cannot assess whether these should more appropriately be considered reservations to the Convention. We asked the Minister to explain why the Government was seeking to at least double the number of reservations already entered to the Convention by the existing 43 State Parties. The Minister said that it would not be appropriate for him to comment on ratification by other countries.[54] The proposal that the UK make at least the same number of reservations to the Convention as all 43 existing State Parties combined is extremely worrying. It sends a stark message to other signatories to the UNCRPD that the UK is concerned about its content. Without clear justification having been provided, this proposal understandably shakes the confidence of disabled people in the UK in the Government's approach to the Convention. We consider that the Minister's explanation that it would not be appropriate for the UK Government to consider the position of other State Parties to the Convention rather misses the point of our comparison.

53.  Most of the submissions we received argued that the reservations being considered by the Government were unnecessary or incompatible with the object and purpose of the Convention. A number of detailed reasons were provided, which are considered in greater detail below. In short, witnesses considered that the Government had taken a narrow view of the requirements of the Convention or had misread the requirements of domestic and EU law on anti-discrimination or the Convention. In particular, in relation to the proposed reservation to the right to education (Article 24), a number of witnesses considered that the Government had not adequately considered the nature of the general principle of progressive realisation. Article 4(2) provides that with regard to economic, social and cultural rights (including education), the State will take measures "to the maximum of its available resources[…]with a view to achieving progressively the full realization of these rights."

54.  Only two submissions supported a reservation or interpretative declaration, in relation to the provision of inclusive education (Article 24). These were from the Department of Children Schools and Families and RESCARE, an NGO run by families of children and adults with learning disabilities.[55] These are considered in more detail below.

Compatibility of existing laws and practices with the Convention

55.  Most witnesses acknowledged the substantial protection offered to disabled people by existing anti-discrimination legislation in the Disability Discrimination Act 1995 (as amended). However, a number of witnesses stressed that disabled people in the UK are not supported to lead equal and inclusive lives.[56] This evidence is consistent with the findings of the Committee's report on the treatment of adults with learning disabilities, which concluded that although current law and policy is positive, the practical experience of individuals is not (in other words, there is a gap between policy and reality).[57]

56.  A number of witnesses raised examples of domestic practice that they considered may be inconsistent with the spirit of the Convention (no witness suggested that any of these concerns required a reservation to the UNCRPD). These concerns included:

  • health inequalities and the inappropriate use of physical and chemical restraint in healthcare settings;[58]
  • inequalities in access to education, employment and the wider community;[59]
  • inaccessible transport and buildings (including public buildings and social housing);[60]
  • inaccessible public information;[61]
  • inadequate provision of social care;[62]
  • inequality in relation to goods and services, including consumer goods;[63]
  • violence towards people with disabilities;[64] and
  • poverty and people with disabilities.[65]

57.  In addition to the publication of its draft proposals for reservations and interpretative declarations, we also recommend that the Government should publish the outcome of its own review of the compatibility of domestic law and practice with the requirements of the Convention. This would assist with more detailed scrutiny of the Government's approach to ratification of the Convention. The Government should be able to explain clearly why it considers that UK law and administrative practice currently complies with the requirements of the Convention.

58.  A number of witnesses considered that the House of Lords decision in Malcolm created some difficulties in relation to the ability of the UK to meet its obligations under the Convention. The case of Malcolm involved a housing dispute, where a tenant with a mental health disability sought to argue that he had acted in breach of his tenancy because of his disability and so it would be discriminatory to evict him for sub-letting his flat. The House of Lords decided that the DDA required that disability should be a motivating factor in any "less favourable treatment" in order for that treatment to be unlawful.[66] So, even if, "but for" his disability, Mr Malcolm would not have sub-let his flat, the sub-letting was in breach of contract and it was lawful for his landlord to evict him on that basis. One of our members, Lord Lester of Herne Hill QC recently argued in the House of Lords that, under our current interpretation of the DDA, this means: "A person who is blind, or visually impaired, with a dog will not be able to claim disability discrimination if a restaurant has a "no dogs" policy and applies the policy regardless of disability".[67]

59.  The TUC told the Committee that this decision had a "retrogressive impact" on the protection of people with disabilities from discrimination.[68] The former Minister told the Committee:

We do not underestimate the significance of the House of Lords decision in Malcolm in overturning previously established case law on disability related less favourable treatment. We are actively considering whether, and if so, what, legislative change might be needed. We are not yet in a position to make any proposals, though we would expect to consult on any proposals prior to their inclusion in the Equality Bill.[69]

60.  The Leonard Cheshire Foundation told the Committee:

"We are very concerned about the recent Malcolm judgment by the House of Lords, which significantly narrowed the scope of protection offered against discrimination on the grounds of disability […] We suspect that it might conflict with the Government's duty to end all forms of discrimination under Article 4 of the Convention and urge the Government to address this issue at the earliest possible opportunity."[70]

61.  Some witnesses praised the Government's proposal for consultation but pressed for a reversal of the Malcolm decision in the forthcoming Equality Bill. The Minister told us that it was the Government's view that Malcolm would not stand in the way of ratification of the UNCRPD and that the Government intended to change the position in the Equality Bill.[71]

62.  The ODI published a consultation paper, entitled Improving Protection from Disability Discrimination, on 26 November 2008 which presents the Government's proposals for the treatment of discrimination against disabled people in the forthcoming Equality Bill.[72] The Government accepts that "the [Malcolm] judgment has disturbed the balance between the rights of disabled people and the interests of duty holders by making it more difficult for a disabled person to establish a case of disability-related less favourable treatment". It states however that the protection of the DDA, post-Malcolm, remains "sufficient to meet the obligations of the United Nations Convention on the Rights of Persons with Disabilities". The Government has provided no further explanation of this view either in its evidence to our inquiry or in the consultation paper.

63.  We welcome the Government's decision to conduct an open consultation on its response to the House of Lords decision in Malcolm. We do not share the confidence of the Government that the judgment does not create difficulties for the compatibility of existing domestic anti-discrimination law with the requirements of the UNCRPD. At the very least, this change in the law means that the UK is less likely to meet its obligation under Article 5 of the Convention to prohibit all discrimination on the basis of disability, to guarantee to persons with disabilities equal and effective protection against discrimination on all grounds and to promote equality, eliminate discrimination and take appropriate steps to ensure that reasonable accommodation is provided for people with disabilities. We welcome the Government's decision to bring forward a new settlement for the protection of people with disabilities from discrimination in the forthcoming Equality Bill, and to remove the implications of the Malcolm judgment. We will examine these proposals during our scrutiny of the Bill.

Home Office and immigration

64.  The former Minister explained that the Home Office:

"Will wish to have a reservation in respect of Convention Article 18.1 and an interpretative declaration in respect of 18.2. These concern immigration and nationality. The UK has a comprehensive set of rules and procedures for governing entry and stay in the UK and for the acquisition of citizenship [...] The Government believes that the UK must retain such flexibility (and made a reservation to this effect when ratifying the Convention on the Rights of the Child)."[73]

65.  Article 18 of the Convention provides that State Parties will recognise the rights of persons with disabilities to liberty of movement, freedom to choose their residence and to a nationality, on an equal basis with others. This right includes the right to acquire and change nationality without discrimination on the basis of disability and the right not to be deprived on the basis of disability of the right to utilise immigration proceedings or other processes which might enable them to exercise their right to liberty of movement.

66.  The Home Office has recently indicated its intention to remove its existing immigration reservation to the Convention on the Rights of the Child.[74] This decision is in keeping with the Committee's view, and the view of its predecessors, that this reservation should be withdrawn.[75] We asked the Minister why the Home Office considered a new reservation in similar terms was necessary in respect of the UNCRPD.

67.  The Minister told us:

"I think the Home Office would not say that their desire to have a reservation is related to that of the Convention for Children. It is essentially about immigration and particularly public health, where the Home Office may wish to screen individuals entering the country, or they may wish to do so in the future. That is something that I think all Member States would seek to want to do. I believe that all Member States have the power to impound an aeroplane for example, if they had a concern about the passengers' public health.[76]

It is about what the Home Office may wish to do in events unforeseen in the future."[77]

68.  This was the first time that either the need for immigration screening or the application of public health protection had been raised as a concern for the Home Office. It departed from the former Minister's earlier indication that the Home Office reservation was similar to the reservation to the UN Convention on the Rights of the Child, which was motivated by a desire to ensure that the Convention did not grant any new immigration rights to children protected by its provisions. The Minister for Disabled People was unable to give us any further detail on the Home Office policy, explaining:

"When we publish the explanatory memorandum, the Home Office department will be able to provide the detail."[78]

69.  The Minister has since written to us to provide some further information. He explains that the Home Office position is far from clear: one or more reservations may be sought, in relation to Article 18 (the right to free movement) or in relation to other parts of the Convention:

"In respect of the position of the Home Office, that Department has indicated that there may be a need to enter one or more reservations or declarations, which as I understand it and have indicated to the Committee, are founded largely on public health considerations. The possible reservations or declarations are in respect of immigration and citizenship, with particular but not necessarily exclusive focus on Article 18 of the Convention. My officials are continuing to explore with the Home Office the scope and basis for these and I will write to you further on this point."[79]

70.  It is disappointing that we have now asked three Ministers, including the Home Secretary for information about the Home Office policy in respect of the UNCRPD and we still have no clear answers about the Government's proposals for immigration and citizenship reservations, in relation to the right to free movement without discrimination on the basis of disability or other parts of the Convention. It is particularly worrying that the Home Office approach appears to be based on a desire to insert a 'catch all' provision to cover as yet undetermined future policy proposals. This approach would be an entirely inappropriate way for the UK to approach a new set of positive international obligations.

DCSF and education

71.  Article 24 UNCRPD provides that States recognise the right of persons with disabilities to education. Its provisions include that:

"With a view to realising this right without discrimination and on the basis of equal opportunity, State Parties shall ensure an inclusive education system at all levels and lifelong learning […]

In realising this right, State Parties shall ensure that:

(a) Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;

(b) Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;

(c) Reasonable accommodation of the individual's requirements is provided;

(d) Persons with disabilities receive the support required, within the general education system, to facilitate their effective education; and

(e) Effective individualised support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion."

72.  Any economic and social rights in the Convention, including the right to education, are subject to the principle of progressive realisation according to available State resources (Article 4).

73.  The former Minister told us that DCSF would be seeking a reservation or an interpretative declaration in respect of these aspects of the Convention in order to preserve the existing UK position which includes provision in mainstream schools and in special schools designed to meet the needs of children with special education needs, sometimes away from home.[80] The Minister for Disabled People has since explained that the Scottish Government supports the proposal for a reservation in the terms being considered by the Government.[81] DCSF has explained its position:

The UK Government is committed to continuing to develop an inclusive education system and through each local authority to continue to develop a range of provision that enables disabled children to achieve their potential. Working collaboratively with local authorities support services and special schools, mainstream schools can ensure that the wide spectrum of need is met. However, our domestic legislation provides that where a decision is being made on a school placement for a child with a statement of special educational needs, s/he must be educated in a mainstream school unless that is incompatible with the wishes of his/her parent or the provision of efficient education of other children. We wish to continue to enable local authorities to take parental wishes into account when determining school placements […] Therefore, special schools remain an important part of local authorities inclusive range of educational provision for disabled children, and we propose to take an interpretative declaration to Article 24(2)(a) to clarify that the UK general education system includes both mainstream and special schools.


We are aware that some disabled children have their needs met by specialist provision, which can be some distance from their home and communities particularly for children from rural areas. Additionally, there is a risk that parental choice could be limited if such non local opportunities were no longer available to disabled children and their families…Following representations, we are considering how these concerns should be expressed to best reflect the Government's commitment to inclusion of disabled people.[82]

74.  We received a significant number of submissions objecting to these proposals. The submissions argue that the department has misunderstood both the nature of inclusion, which would not require the Government to provide education which was not in the best interests of the child receiving it, and the nature of progressive realisation.[83] For example, Disability Equality in Education told us:

DCSF has indicated 'that there is a need to recognise that the general education system in the UK includes a range of provision, including mainstream and special schools which will require an interpretative declaration'. This misses the point.

[The Convention] provides aspirations in the area of social, economic and cultural rights that state parties will work towards Article 4.2 makes this very clear. The full realisation of these rights, including Article 24, are to be achieved 'progressively'. This provision recognises that existing practices and structures do not fulfil the principles of the Convention…This clause allows state parties time to plan, to change the built environment and to challenge and change negative attitudes and practices.[84]

75.  Other witnesses have argued that the DCSF position undermines the Government's commitment to inclusive education for disabled children and places too high a premium on parental choice, to the detriment of the rights of the child to be treated without discrimination. [85]

76.  We received one submission in support of DCSF's position. RESCARE, an NGO run by and for the families of children and adults with learning disabilities, told the Committee that the interpretative declaration and reservation proposed by the Government were "essential in meeting the educational needs of children and young people with learning disabilities, autism and other complex needs, as an option for their parents". It went on to explain:

"The implementation of the Government's position will ensure the retention of the expertise and environmental friendly special schools as a necessary and rightful parental choice option within an inclusive educational service of properly resourced mainstream, special day and residential schools."[86]

77.  The Minister for Disabled People told us:

"The department's view is that having special educational needs provision that may be outside of the mainstream is inclusive because it may be that for some children that provision is not possible within the mainstream provision, and also it is the views and the wishes of parents, and within the interpretative declaration, that is why the department have made that, they do not see that they would want not to have that arrangement or that possibility, but certainly it is the Government's policy that we have sought to mainstream a great deal of education provision."[87]

78.  We have now seen three justifications for the reservations or interpretative declarations being considered by the Department of Schools Children and Families:

  • the need to continue to maintain some specialised provision outside the mainstream;
  • the need to recognise that not all disabled children can, or will, be able to secure appropriate education close to home; and
  • the need to support parental choice.

79.  We have not yet seen the text of the proposed reservation or interpretative declaration, nor has the Government explained why it considers that these would be compatible with the object and purpose of the Convention.

80.  No detailed proposals for reservations or interpretative declarations to the right to education have emerged during our inquiry. We welcome the decision of the DCSF to provide us with a memorandum about its proposals but, despite this additional information, we do not have adequate information about the Government's position or its proposals to determine whether any reservation is necessary or compatible with the spirit of the Convention. We recommend that when the draft text of any reservation or interpretative declaration is published, that it is accompanied by a full explanation of why the Government considers that it is necessary and compatible with the object and purpose of the Convention. This should include a clear explanation of the Government's view that current law and policy should not be amended to allow the UK to ratify the Convention without reservation.

Ministry of Defence and service in the armed forces

81.  The former Minister told the Committee:

"The Ministry of Defence will wish to have a reservation in respect of service in the armed forces, consistent with the provisions of the Disability Discrimination Act 1995 (as amended)."

82.  The provisions of the DDA provide the Ministry of Defence with an exemption in respect of service in the armed forces.[88] The European Commission's current proposals for ratification include a proposal for a reservation which would permit, but not require, Member States to enter a similar reservation to exempt their armed forces.[89] So far, no EU Member State that has ratified the Convention has entered a reservation in respect of the armed forces. The Minister confirmed that no reservation has been made in respect of any State Parties' armed forces. The UK would be the first country to seek a reservation in these terms.

83.  A significant number of witnesses told the Committee that this reservation was unnecessary and that the MoD was being unduly cautious in retaining its exemption from the DDA. The UN Convention Coalition told the Committee:

The armed forces have already publicly acknowledged that the only problem they have with the Convention - as with the DDA - is that they should not be obliged to recruit disabled people. They are already retaining service men and women who become disabled when on active service. However, neither the DDA or the Convention requires an employer to employ an unqualified disabled person. Nobody would believe a war zone to be a reasonable environment for a blind or deaf person (for instance).[90]

84.  The TUC agreed:

The critical point in this argument is that even without the [exemption/reservation] the armed forces would not be compelled to recruit any person who was not capable of doing the job. Ratifying the Convention without reservation would still not lead to the armed forces being required to recruit personnel not able to meet the requirements of the job. However, it is also evident - if only from the reported fact of numbers of service people apparently retained after disabling accident or injury - that there are many jobs within the armed forces that do not require full active service fitness and capability.[91]

85.  The EHRC told the Committee:

"The Commission believes the time has come to lift the exemption of the armed forces from the Disability Discrimination Act in light of a positive change in attitudes towards equality and diversity in the military and this possibility has been raised with Ministers at the MoD."[92]

86.  We asked the Minister why the Government considered that these proposals were necessary. He said:

[The Ministry of Defence] really wants to be able to determine the service needs of the Armed Forces and it does not wish to be second-guessed on that, and so it stands that it is their wish to have this reservation and it will not come as a surprise given the history of the DDA. It is about service, as the Armed Forces would see it, and they want to have the flexibility to be able to deploy people as they see fit. Principally, every man and woman who is in the Armed Services could be deployed for front-line service.[93]

87.  The Minister went on to explain that although not all serving personnel would be deployed to the front-line (particularly those who had previously been wounded in service), the armed forces were perhaps seeking the flexibility to be able to fill all of their posts from within their own ranks.[94] We asked the Minister if the time had come to revisit the exemption for the armed forces from the full application of the DDA, particularly in view of the evidence which we received that it is unnecessary. He told us that he expected that this issue would arise during debates on the forthcoming Equality Bill.[95]

88.  We share the doubts of the EHRC and other witnesses over whether the continued exemption of the armed forces from the application of the DDA is justified. We agree with the Minister that the forthcoming Equality Bill will provide a timely opportunity for the Ministry of Defence to consider whether its position is now outdated. It would be unfortunate if reservations were entered to the Convention which were quickly proved unnecessary as a result of a positive reform in domestic law. We recommend that the Government now consider, against the background of its commitments in the UNCRPD, whether an amendment to the DDA might be included in the forthcoming Equality Bill to remove the exemptions currently enjoyed by the armed forces. If the Ministry of Defence consider that the exemptions continue to be justified, we would expect the Government to provide supporting evidence for its position.

Are reservations necessary or appropriate?

89.  We currently lack detailed information on the scope of the reservations and interpretative declarations being considered by Government. For example, the Minister for Disabled People told us about an additional reservation which the Department for Work and Pensions consider necessary, in relation to benefits appointees and capacity (Article 12). This was the first that our Committee had heard of this reservation, despite having been in detailed correspondence with the department during the preceding months.[96] During oral evidence, the Minister reassured us that some reservations which were previously considered were now thought unnecessary and provided further detail on the individual reservations and interpretative declarations being sought by each department.[97] Since the Minister gave evidence, it has emerged that the Home Office may be considering multiple reservations or interpretative declarations.[98] This is an entirely unacceptable way to act if we are to conduct effective scrutiny of the Government's position and proposals for reservations.

90.  We have inadequate information to reach a firm conclusion on the necessity for each of the reservations being considered by the Government. However, in the light of the evidence we have received and the detail we have seen, we share the doubts of many disabled people's organisations that any, or all, of the reservations or interpretative declarations currently being considered by the Government are both necessary and compatible with the object and purpose of the UNCRPD.

91.  If the Government now considers that reservations are necessary, it must provide clear justification for its position and its view that the reservations or interpretative declarations are permitted. We are concerned that the Government's proposals imply an outdated approach to equality for disabled people, proceeding on the premise that reservations are needed in order to maintain the Government's current policy, rather than examining whether the current policy is appropriate or compatible with the goals of the Convention. This defensive approach is in stark contrast to the Government's goal to achieve equality for all disabled people by 2025. This approach, in our view, could have been avoided through the adoption of greater transparency and by providing the opportunity for closer scrutiny of the Government's concerns.

92.  If the Government decides to proceed with its proposals for reservations to the Convention, other States may be able to challenge the reservations, as incompatible with the object and purpose of the Convention. Some witnesses told us that reservations being proposed were liable to challenge, particularly in respect of the concerns of the DCSF and the proposals for reservations in respect of the right to education. We consider that it would be premature for us to express a firm view on the compatibility of any proposals with the object and purpose of the Convention. We recommend that together with publishing the draft text of any proposed reservations, the Government provide a clear explanation of its view that they are compatible with the object and purpose of the UNCRPD.

52   Article 46 Back

53 [Last accessed 16 December 2008] For example, Australia has made three declarations about its understanding about the scope of the Convention in relation to mental capacity, compulsory treatment for people with mental health disabilities in certain circumstances and in relation to immigration and citizenship. Back

54   Ev 12-13 Qq94 - 96 Back

55   Ev 54, Ev 31 Back

56   See for example Ev 22 Back

57   Seventh Report of Session 2007-08, paras 101-109 Back

58   For example Ev 64, Ev 24 Back

59   For example Ev 61, Ev 22 Back

60   For example Ev 63, Ev 22 Back

61   Ev 26 Back

62   Ev 29-30, Ev 24 Back

63   Ev 26 Back

64   Ev 60 Back

65   Ev 61 Back

66   Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] UKHL 43, paragraph 40 Back

67   HL Deb, 9 July 2008, Col 749 Back

68   Ev 27 Back

69   Ev 20 Back

70   Ev 35 Back

71   Ev 8 Qq51-52 Back

72   The consultation period for this consultation was 6 weeks (ending on 6 January 2008) Back

73   Ev 19 Back

74   Press Notice, DCSF, 'UK lifts Reservations on the UN Convention on the Rights of the Child' 22 September 2008. Back

75   See for example, Tenth Report of Session 2006-07, The Treatment of Asylum Seekers, para 65. Back

76   Ev 6 Q36. Back

77   Ev 6 Q38. Back

78   Ibid. Back

79   Ev 15 Back

80   Ev 19 Back

81   Ev 54 Back

82   Ibid Back

83   Ev 15, Ev 22-23, Ev 24, Ev 28, Ev 36, Ev 38, Ev 40, Ev 48, Ev 50-52, Ev 53, Ev 55, Ev 58, Ev 61, Ev 67 Back

84   Ev 50 Back

85   See for example Ev 15 Back

86   Ev 32. Although they object to reservations, Leonard Cheshire have indicated that they would accept an interpretative declaration in the terms proposed by Equality 2025 Council for Children with Disabilities which sets a deadline of 2025 for full equality, Ev 34. Back

87   Ev 9 Q57 Back

88   Section 64(7) Disability Discrimination Act 1995 provides that the section of the act which prohibits discrimination in employment will not apply to any of the armed forces. Section 49(C)(3) provides that the public authority disability duty will not apply to the armed forces in so far as it applies to recruitment or the service of any person serving in the armed forces.  Back

89   The UN Convention Campaign Coalition have indicated that this proposal was included at the request of the United Kingdom, Ev 15 Back

90   Ev 53 Back

91   Ev 26 Back

92   Ev 40. Back

93   Ev 9 Q58. Back

94   Ibid. Back

95   Ev 10 Q64. Back

96   Ev 1 Q1 Back

97   Ibid. Back

98   Ev 67 Back

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