Gold Medal in Galway

We are delighted to welcome this post from Elizabeth Kamundia recipient of the Gold Medal for finishing top of her class on the LL.M in International and Comparative Disability Law at the Centre for Disability Law and Policy, NUI Galway.

In 2005, while I was studying for my law degree, I started learning Kenyan Sign language – just for fun. At that time, I knew little about human rights as they apply to people with disabilities – and certainly had no inkling that I would end up specialising in that very area.

Often, my family and friends would ask me what possible use sign language was to a lawyer. I’d say, “I might someday have a Deaf client” – since I assumed that I would become a practicing advocate and saw that as the only way that I would ever combine my sign language and legal skills. How wrong I was!

Six years later, I was working as the Human Rights Officer on Disability at the Kenya National Commission on Human Rights (KNCHR). I had found a way to merge my legal training with my growing interest in disability rights. But while I found the work at KNCHR thoroughly engaging, I also felt that I was only scratching the surface – that there was so much more to human rights as they apply to people with disabilities than I was aware of at the time.

I started wondering whether there were studies in disability within the realm of law that I could pursue. Google searches mainly yielded disability studies within education, health and social work. And so I was delighted to discover that the Centre for Disability Law and Policy (CDLP) of the National University of Ireland, Galway was offering a Masters in International and Comparative Disability Law and Policy.

And absolutely thrilled to be awarded a scholarship by the Open Society Foundations (OSF) to undertake the course.

At that point, I had never lived apart from my family, and so a year away was both appealing and also a little frightening! But I need not have worried. The Centre is a wonderful place in which to study with a real student-centred approach and extremely supportive lecturers. And it’s a real community. And so alive – with visiting researchers from other countries ensuring that it stays amazingly vibrant all year round.

The LL.M class drew together a diverse range of people – barristers, relatives of people with disabilities and service providers among others. The classes were so interactive and practical, including one memorable occasion when a parent of a child with autism came and shared stories about her struggle to ensure that her child received an education.

We also held debates on various topics, such as what the paradigm shift in Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) on legal capacity means at a practical level. On other occasions, we had the opportunity to hold Skype conversations with various key actors on disability around the world including Shuaib Chalklen, the UN Special Rappoteur on Disability and Ron McCallum, the Chairperson of the CRPD Committee.

An interesting – and challenging – aspect of studying at the Centre was knowing that I (and the other two OSF-supported scholars from Africa) was expected to be the ‘Voice of Africa’. And it kept me on my toes – and also encouraged me to filter the theories through the realities of life in Kenya as I know it, to begin to see how they could make a difference in people’s lives thousands of miles away from Galway.  And this was another reason why it was so wonderful to have other OSF scholars from Africa – so that we could sit together after class and wonder how we could make the concepts we were learning applicable back home. Indeed, some of the ideas such as personalised budgets as a way of actualising Article 19 of the CRPD on living independently in the community seemed way out there to us. Indeed, that was partly why I decided to write my dissertation on Article 19 since I wanted to understand how to make it practical in an African context.Image

It is also why I decided to conduct interviews for the dissertation even though this was not a requirement. I felt that I could benefit greatly from asking people on the ground in Kenya about their ideas on how persons with disabilities could be able to live independently in the community. It was the best decision I could have made. The interviews taught me so much – providing me with priceless information and insights.

 

And the key thing I learned is that open societies have to be inclusive societies. A society that has people living on the margins, concealed, or locked up cannot claim to be an open society.

I also learned that the CRPD is so much more than just an international treaty – it’s a powerful tool for change. Persons with disabilities in Kenya are using this tool to change the way they look at themselves and to challenge the way society looks at them – and treats them.

The CRPD demands a comprehensive change across all sectors – education, health and governance – with a message that speaks to everyone: ‘INCLUDE US!’ And the values underlying the CRPD are truly transformative – dignity, equality, autonomy, participation, respect for difference and acceptance of human diversity.

And there was so much more. The Disability Legal Information Clinic opened while I was at the CDLP. The chance to volunteer at the clinic was fantastic. Dealing with real peoples’ issues (some of which had legal solutions, and some of which did not) taught me so much. In particular, it showed me that the law is a powerful tool for change but that it cannot address all the diverse needs that people have.

The Centre also offers additional scholarly opportunities. If you write a good essay, you are encouraged to submit it either for presentation as a paper at a conference, or as a chapter in a book. Through the encouragement of the lecturers and the PhD students, I gave a paper on my preliminary thoughts on Article 19 in a conference on ‘Key Contemporary Housing Issues in a Changing Europe’ – a paper that will appear in a forthcoming book.

But the LL.M Programme is not just about individual work. Group essays are a key part of the course – and another way to get work published! But they are also are great way to hone one’s negotiation skills (“lets meet on Wednesday afternoon to start the essay, shall we?” “No, on Wednesday afternoon I have an appointment with my hairdresser, how about Friday evening?” “No, on Friday evenings, I go drumming…” and so on) – and to transform classmates into friends.

The LL.M programme also involved participating in lots of conferences, which helped us to stay engaged with processes in the real world, such as the reform of the mental health laws in Ireland. Conferences also offered a great opportunity to travel within Europe – indeed it was during one such conference that I saw snow for the first time in my life!

We also had the opportunity to attend a seminar at Interights in London on strategic litigation, which got us thinking about the role that litigation could play in advancing the rights of persons with disabilities in our respective countries. Of course, a stopover at the Emirates Stadium was mandatory during this trip!

We also had fruitful contact with other faculties, such as the Department of Women’s Studies, where my African colleagues and I gave a presentation on the status of women’s rights in our respective countries (Zambia, Ethiopia and Kenya). It was fun and fascinating. It also revealed how our different identities intersect – one is not just a woman, but also perhaps a woman with a disability, who comes from a minority community and belongs to a minority religion. The reality is that discrimination often arises from our multiple identities and is far more complex than it may appear at first glance.

Needless to say, this means that simple, narrow solutions are not the answer.

The facilities that the university offers never ceased to amaze me. If I needed a book that wasn’t available in the library, the library would order it for me. It was also great to have free supplementary computer classes and advanced English writing classes. And you can pick up other vital skills in classes devoted to cooking, creative writing, yoga, meditation and assertiveness training. I wonder if my family and friends will know which extra classes I took?

But I wouldn’t have achieved as much as I did at Galway without all the ongoing support from OSF – both the Disability Rights Initiative and the Open Society Initiative for southern Africa (OSISA). Many organisations fund scholars but do not necessarily support them along the way – but not OSF. Indeed, the supervisors for my dissertation were the LL.M Programme Director, Shivaun Quinlivan, and Tirza Leibowitz, who is the legal advisor for OSF’s Disability Rights Initiative. Working with them was fantastic. They pushed me to read widely and to ask questions even when I could not answer them.

And the support from OSF stretched beyond the Masters course – funding me to present my dissertation at an international forum in Washington on ‘Achieving inclusion across the Globe’ – something I could never have dreamed of when I left Nairobi for somewhere called Galway all those months before.

When I jetted off, I knew that there would be some hard times ahead. But I was thinking about loneliness and homesickness and incomprehensible legal concepts – not that the temperature could ever sink so low or that the sun could set at 3pm! And apparently, I was lucky because so many people told me that ‘we’re having such a mild winter this year’!

But having said that – Galway is such a beautiful city and so vibrant in summer with its film festivals and art festivals and music festivals. You literally have to refuse to read all the posters to get anything done in the summer! And, I must admit, I also miss living a stone’s throw from the (admittedly freezing!) sea.

Thanks to the Internet I was also able to regularly Skype and email my family and friends back home. This allowed me to keep in touch with the significant people in my life, which helped me to cope with the distance (if not the cold!) and has also made settling back home much easier than I’d imagined. I have no idea what I would have done without the World Wide Web!

It really was an absolutely incredible year. I learned far more about the law and life than I thought possible. And to win the gold medal in my class at the end was the most amazing icing on the cake. And when I got the email from Shivaun, I couldn’t stop myself from crying – because it showed that if you work hard, and are adequately supported, anything is possible. 

Supporting links: 
Open Society Foundations Disability Rights Initiative
Centre for Disability Law and Policy, National University of Ireland, Galway

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Update – The Negotiation of new EU Structural Fund Regulations

Suzanne Doyle, Research Associate, Centre for Disability Law and Policy, NUI Galway.

Introduction – The Structural Funds

The EU Structural Funds were created in order to address barriers to economic activity which might affect the functioning of the common market. The Structural Funds include the Cohesion Fund, the European Regional Development Fund, the European Social Fund and the European Globalisation Adjustment Fund. They are distributed to qualifying Member States over the course of a ‘programming period’ of seven years. The Structural Funds themselves are part of the wider EU Cohesion Budget reflecting EU Cohesion Policy during a particular programming period. Cohesion Policy is and element of the overarching EU Multi-Annual Financial Framework (the EU ‘budget’). Approximately 35.7% of the EU budget 2007-13 (equivalent to €347.41 billion over seven years at 2008 prices) was allocated to the various financial instruments which support Cohesion Policy.[1] Cohesion policy during the current period (2007-2013) had been focused on three priority objectives: convergence, regional competitiveness and employment. The strategic priorities for the next programming period (2014-2020) are taken directly from EU2020 ‘towards a smart, sustainable and inclusive’ economy and society[2] – something that dovetails very well with the UN CRPD.

The Structural Funds are governed by Regulations. A General ‘Common Provisions’ Regulation is adopted which sets out the strategic priorities as well as management mechanisms and monitoring machinery.  Fund-specific Regulations are then enacted to govern the relevant financial instrument in question. The Funds are not disbursed directly by the European Commission.  Instead, qualifying States put together national plans (Operational Programmes) which are reviewed and adjusted by the European Commission before disbursed.  The State then issues successive waves of calls to tender which are responded to nationally.  The Funds are expected to bring ‘additionality’ to bear on State action.  That is to say, they are not intended as a replacement for State action that should otherwise occur.  Further, they are designed to respect the principle of ‘subsidiarity’, i.e. the strategic priorities of the EU must always be tailored to the circumstances of the State in question.

Despite the insertion of a provision prohibiting non-discrimination in the previous programming period (2007-2013), many commentators have noted that the Structural Funds have been used to open institutions which undermines the right to live independently and be included in the community.[3]   This provision was contained in Article 16 of the General Regulation (2007-2013) and stated that:

The Member States and the Commission shall take appropriate steps to prevent any discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation during the various stages of implementation of the Funds and, in particular, in the access to them. In particular, accessibility for disabled persons shall be one of the criteria to be observed in defining operations co-financed by the Funds and to be taken into account during the various stages of implementation.

The limits of such generic provisions was graphically highlighted by a 2009 Study commissioned by the European Commission: ‘Study on the Translation of Article 16 of Regulation EC 1083/2006 for Cohesion policy programmes 2007-2013 co-financed by the ERDF and the Cohesion Fund[4]’ which demonstrated the failure of eligible Member States to consistently apply this principle to their administration of structural funding.

An Altered Legal Landscape – EU Ratification of the UN CRPD and its Implications for the Structural Fund Regulations

The EU ratified (or ‘confirmed’) the UN Convention on the Rights of Persons with Disabilities (UN CRPD) in 2010.[5]  This was the first international human rights instrument to which the EU became a signatory. EU law is clear that “[A]greements concluded by the Union are binding upon the institutions of the Union and on its Member States” (Article 216(2) of the Treaty on the Functioning of the European Union).   It has been held by the Court of Justice of the EU (CJEU) that while international agreements concluded by the EU are inferior to the EU Treaties they nonetheless rank superior to secondary EU law (which includes Regulations and Directives).[6] Such secondary law (including structural fund regulations) should therefore be interpreted in such as way so as to comply with the requirements of the UN CRPD.

Agreements such as the signing of the UN CRPD are generally known as ‘mixed agreements’ in the sense that they engage the often overlapping legal competences of the Union and its Member States.[7] This is recognised in the preamble to Council Decision 2010/48/EC which states that:

Both the Community and its member States have competence in the fields covered by the UN Convention. The Community and the Member States should therefore become Contracting Parties to it, so that together they can fulfil the obligations laid down by the UN Convention and exercise the rights invested in them, in situations of mixed competence in a coherent manner.

In such situations, while the EU is required to be CRPD-compliant for matters that lie within its sphere of competence, Member States also have an EU law obligation to implement the treaty to the extent that its provisions are “within the scope of Community competence.”[8] Further, as was held by the European Court of Justice’s in its decision in Kadi,[9] the UN CRPD cannot create any new EU competence where one did not exist before – nor can it expand any existing competence. Council Decision 2010/48/EC states that two elements of EU competence were the basis for EU confirmation of the UN CRPD: the internal market and non-discrimination.   EU competence in the area of non-discrimination has been re-emphasised by Article 10 of the TFEU which states that:

In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

Article 19 of the UN Convention on the Rights of Persons with Disabilities

Article 19 of the UN CRPD states that:

States Parties to the present Convention recognise the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.

Article 19 requires putting in place a web of personalised supports to meet the personal circumstances of the person and requires that community services be made fully inclusive of and accessible to persons with disabilities.  This requires a transition away from institutions and targeting resources to enable genuine community living to occur. An Issue Paper on this topic, entitled ‘The Right Of People With Disabilities To Live Independently And Be Included In The Community’[10], was published by the former Council of Europe Commissioner for Human Rights, Thomas Hammarberg, in March 2012. In it Commissioner Hammarberg summarises the core elements of the right as follows:

Article 19 of the CRPD embodies a positive philosophy, which is about enabling people to live their lives to their fullest, within society. The core of the right, which is not covered by the sum of the other rights, is about neutralising the devastating isolation and loss of control over one’s life, wrought on people with disabilities because of their need for support against the background of an inaccessible society. ‘Neutralising’ is understood as both removing the barriers to community access in housing and other domains, and providing access to individualised disability-related supports on which enjoyment of this right depends for many individuals.[11]

The Commissioner also warned of the dangers of replacing one form of institution with another:

An incorrect understanding of the right to live in the community risks replacing one type of exclusion with another. Though governments increasingly recognise the inevitability of deinstitutionalisation, there is less clarity with regard to the mechanisms that replace institutionalisation and what would constitute a human rights-based response.

This is not merely a theoretical concern. Countries which have already closed down large-scale institutions are showing worrying trends of grouping apartments into residential compounds, comprised of dozens of units targeted exclusively to people with disabilities. …Such a solution compromises the individual’s ability to choose or to interact with and be included in the community.[12]

The European Union Agency for Fundamental Rights (FRA) also published a report in June 2012 entitled: ‘Choice and control: the right to independent living.’[13]  The FRA report contained the findings of interview‑based research carried out in nine EU Member States with persons with mental health problems and persons with intellectual disabilities. The research examined how they experience the principles of autonomy, inclusion and participation in their day‑to‑day lives. The report also sought to provide some examples of promising practices regarding independent living. Crucially, the FRA noted that:

While Article 19 codifies the right to independent living, to be made meaningful in its fullest sense it must be read in conjunction with a number the convention’s other articles, because the concept of independent living brings together many aspects of an individual’s life, and thus requires the realisation of many other human rights.[14]

It is clear that much of the change required by Article 19 will need to be ‘progressively realised.’  States are therefore required to take all possible steps, using the resources available to them to their maximum ability, to fully realise the rights of persons with disabilities to live independently and be included in the community. The concept of ‘progressive achievement’ appears in Article 2.1 of the International Covenant on Economic, Social and Cultural Rights. The UN Committee on Economic, Social and Cultural Rights stated in its General Comment No. 3 on the nature of States parties’ obligations that:

… while the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant’s entry into force for the States concerned. Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.[15]

The UN Committee continued in this vein in relation to the progressive realisation of the economic, social and cultural rights in the specific context of persons with disabilities when it stated in its General Comment 5 (1994) that:

The obligation of States parties to the Covenant to promote progressive realization of the relevant rights to the maximum of their available resources clearly requires Governments to do much more than merely abstain from taking measures which might have a negative impact on persons with disabilities. The obligation in the case of such a vulnerable and disadvantaged group is to take positive action to reduce structural disadvantages and to give appropriate preferential treatment to people with disabilities in order to achieve the objectives of full participation and equality within society for all persons with disabilities. This almost invariably means that additional resources will need to be made available for this purpose and that a wide range of specially tailored measures will be required.[16]

In the case of the EU, such “additional resources” could clearly encompass the Structural Funds.

The Original Proposals for the Structural Fund Regulations (2014-2020)

The European Commission presented its proposals for a new set of Regulations to govern the next programming period (2014-2020) in October 2011.[17]

(a)       The Proposed General Regulation (2014-2020)[18]

Article 7 is to the effect that the Member States and the Commission shall take appropriate steps to prevent any discrimination based on a number of grounds including disability.  Article 87(3)(ii) of the draft General Regulation also requires that each Operational Programme shall include:

… a description of the specific actions to promote equal opportunities and prevent any discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation during the preparation, design and implementation of the operational programme and in particular in relation to access to funding, taking account of the needs of the various target groups at risk of such discrimination and in particular the requirements of ensuring accessibility for disabled persons.

Possibly most importantly, the proposed General Regulation contains new general ex-ante conditionalities which are essential pre-conditions for the receipt of Structural Funds. They are set out in detail in Annex IV of the draft General Regulation entitled ‘Ex ante conditionalities’ which contains both thematic and general ex ante conditionalities. In explaining the rationale for the inclusion of more particularised ex ante conditions for the next programming period of cohesion policy, the EU Commission stated that it must be ensured:

… that the conditions necessary for [the] effective support [of the funds] are in place. Past experience suggests that the effectiveness of investments financed by the funds have in some instances have been undermined by weaknesses in national policy, and regulatory and institutional frameworks. The Commission therefore proposes a number of ex ante conditionalities, which are laid down together with the criteria for their fulfilment in the General Regulation.[19]

Member States are to assess whether the ex ante conditions are been met (Article 17(2)). They are expected to set out in their Operational Programmes:

the detailed actions relating to the fulfilment of ex ante conditionalities including the timetable for their implementation.[20]

If they are not met at the time of the conclusion of their Partnership Contracts the Member State in question will set out clearly the actions to be taken to bring it into compliance within two years of the Contract (Article 17.(3)).

Crucially, according to the draft Regulation, the European Commission shall assess information connected with the fulfilment of the ex ante conditions and:

May decide to suspend all or part of interim payments to the programme pending the satisfactory completion of actions to fulfil an ex ante conditionality.

and,

The failure to complete actions to fulfil an ex ante conditionality by the deadline set out in the programme shall constitute a basis for suspending payments by the Commission.[21]

Two sets of ex ante conditionalities are particularly important in the context of Article 19 of the UN CRPD.

The first important ex ante condition in the context of the UN CRPD on the transversal thematic priority of combating discrimination. Within that rubric and in the specific context of disability (following general provision as well as provision on gender), this ex ante condition is to the effect of requiring Member States to create:

[The existence of] a mechanism which ensures effective implementation and application of the UN Convention on the rights of persons with disabilities.[22]

The ‘criteria for fulfilment’ of this ex ante condition are highly specific and are stated to be:

Effective implementation and application of the UN Convention on the rights of persons with disabilities is ensured through:

– Implementation of measures in line with Article 9 of the UN Convention to prevent, identify and eliminate obstacles and barriers to accessibility of persons with disabilities;

- institutional arrangements for the implementation and supervision of the UN Convention in line with Article 33 of the Convention;

- a plan for training and dissemination of information for staff involved in the implementation of the funds;

– measures to strengthen administrative capacity for implementation and application of the UN Convention including appropriate arrangements for monitoring compliance with accessibility requirements.

The second draft ex ante conditionality of relevance requires the ‘active inclusion – integration of marginalised communities such as the Roma.’ This calls for the existence of a national anti-poverty reduction strategy as well as a strategy for Roma inclusion. However, with respect to the relevant ‘criteria for fulfilment’ covering the national strategy for poverty reduction there is a criterion that specifically calls for:

measures for the shift from residential to community based care.[23]

The proposed inclusion of ex ante conditionality in the draft General Regulation is a welcome step forward. Indeed it is hard to see how the EU could avoid ex ante conditionality if only to minimise its legal liability to the UN Committee on the Rights of Persons with Disabilities for Member State actions that it could have avoided through better regulation of the Structural Funds. And the Declaration of Competence accompanying its ‘confirmation’ of the Convention made it inevitable that the ex ante conditions would include an express reference to the UN CRPD.

(b)       The Proposed European Social Fund Regulation (2014-2020)

The European Commission’s draft Regulation for the European Social Fund is important because it is a core instrument for enabling social innovation and change to occur.  The Fund aims to promote, inter alia, ‘social inclusion thereby contributing to economic, social and territorial cohesion.’[24]

The Explanatory Memorandum to the draft ESF Regulation specifically references the ‘European Platform against Poverty’ which forms an integral part of Europe 2020 and which calls for social innovation for, inter alia, the transformation in the lives of persons with disabilities.

Preambular paragraph 11 of the proposed ESF Regulation states:

In accordance with Article 10 of the Treaty, the implementation of the priorities financed by the ESF should contribute to combating discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation…

The ESF should support the fulfilment of the obligation under the UN Convention on the Rights of Persons with Disabilities with regard inter alia to education, work and employment and accessibility. The ESF should also promote the transition from institutional to community-based care.[25]

[emphasis added].

Article 2 of the draft ESF Regulation follows through by including within the stated mission of the ESF into the next period the goal of benefiting people:

including disadvantaged groups such as…people with disabilities…with a view to implementing reforms…in the fields of…social policies.

It also explicitly states that one of the key goals of the ESF in this regard is to:

Provide support to enterprises, systems and structures with a view of to facilitating their adaptation to new challenges and the implementation of reforms in particular in the fields of social policies.

The ‘scope of support’ section (Article 3) deals more particularly with ‘promoting social inclusion and combating poverty.’ It deals with the need to achieve ‘active inclusion’ and to combat discrimination on the grounds, inter alia, of disability and to encourage community-led development strategies. T

More particularly, Article 8 of the proposed ESF regulation states that:

The Member States and the Commission shall promote equal opportunities for all, including accessibility for disabled persons through mainstreaming the principle of non-discrimination … and through specific actions within the investment priorities …. Such actions shall target people at risk of discrimination and people with disabilities, with a view to increasing their labour market participation, enhancing their social inclusion, reducing inequalities in terms of educational attainment and health status and facilitating the transition from institutional to community-based care.[26]

[emphasis added].

Importantly, draft Article 6 deals with the ‘involvement of partners.’ It is to the effect that the involvement of partners ‘in particular non-governmental organisations’ in the implementation of the relevant operational programme (as envisaged already in Article 5 of the draft general regulation) may itself be supported using the ESF. Interestingly, the managing authorities are required to set aside a sufficient amount to be allocated to ‘capacity building activities’ such as training, networking and strengthening social dialogue. This is particularly relevant where social movements on disability are still in embryonic form and need support to develop to the point that they become constructive interlocutors in the dialogue for change.

Usefully, Article 9 of the draft ESF Regulation is directed towards ‘social innovation.’ The aim is the ‘testing and scaling up of innovative solutions to address social needs’ (Article 9 (1)). The Member States are urged to identify themes for social innovation in their Operational Programmes. Since these programmes are to be designed with the relevant ‘partners’ this gives representative organisations of persons with disabilities considerable scope to ensure that the relevant innovation measures include those directed at moving the transition forward from institutional to community living.

Furthermore, Article 10 of the draft enables States to enter ‘transnational learning’ arrangements with the support of the Fund. The Member States can choose from a list of themes to be proposed by the European Commission.

(c)       The Proposed European Regional Development Fund Regulation (2014-2020)

The draft Regulation for the ERDF can support a range of projects and activities that may be of relevance in the context of disability. They include ‘investment in social, health and educational infrastructure’ as well as ‘networking cooperation and exchange of experience between regions, towns and relevant social and economic actors.’

One of the ‘investment priorities’ in the draft ERDF Regulation is stated to be:

investing in health and social infrastructure which contribute to national, regional and local development, reducing inequalities in terms of health status, and transition from institutional to community-based services.[27]

[emphasis added].

Article 5.9 (c) goes on to state that ‘support for social enterprise’ is also a priority which is also relevant in the disability context given that an entirely new social frame of reference will be needed to give life to the right to live independently and be included in the community.

The old 10% cap in the use of ERDF that applied to the purchase of land (with the on-going question mark whether this also extended to the purchase of property on land) is carried forward in Article 59 (3)(b) of the draft General Regulation. This of course applies to the ERDF as well as to the other Funds. This has been criticised by the European Coalition for Community Living.[28]

(d)       The Proposed Common Strategic Framework

Subsequent to the publication of its Regulation Proposals, the European Commission adopted a communication on a ‘Common Strategic Framework’ (CSF) 2014-2020.  This was published as a staff working document on the 14th of March 2012.[29]  Its objective is to translate the general objectives and targets set out in the draft Regulations into key actions for the use of the cohesion funds.  It thus aims to provide concrete direction of assistance to States in the programming.[30]

The CSF will obviously have to reflect (and be consistent with) the content of the finalised Regulations. The Commission will launch a public consultation on the CSF at some point in 2012. Previously, it seemed likely that the finalised CSF would take the legal form of a delegated act after the finalisation of the Structural Fund regulations in 2013.[31] However, Members of the European Parliament have been calling for an adoption by co-decision procedure through making it an annex of the General Regulation based on the fact that, in their opinion, the CSF is an “essential element,” which expresses political views.[32] This latter approach seems to have gained more support in recent discussion.[33]

There are many positive elements in the proposed CSF.  Its utility, however, may be doubt given the current impasse over the final shape of the regulations.

(e)       The European Code of Conduct on Partnership

A much neglected aspect of the UN CRPD is its ambition to change process and not just substance.  Of particular importance is Article 5.(1)(c) of the draft General Regulation which stipulates, inter alia, that each Member State will bring together different groups to sit on the partnership body including specifically:

bodies representing civil society…and bodies responsible for promoting equality and non- discrimination.

In line with the ‘partnership principle’ (between States and civil society) contained in Article 5 of the draft General Regulation the European Commission also published a Commission Staff Working Document in April 2012 on a European Code of Conduct on Partnership (ECCP).[34] It is intended to:

… help Member States to shape their partnership appropriately during the preparatory work before the regulations are adopted. In particular, it provides some examples of good practice on implementation of the partnership principle, based on the Commission’s findings and various enquiries.[35]

and to outline

… the main requirements that the ECCP could contain as a basis for discussion with the European Parliament and the Council, in order to facilitate the on-going legislative procedure and to allow stakeholders to take part in this debate.[36]

The Commission has recommended that the ECCP be adopted as a delegated act, as soon as the General Regulation for the period 2014-2020 enters into force.[37]

It will be recalled that Article 4(3) of the UN CRPD requires that:

In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organisations.

The Commission Staff Working Document provides a useful suggestion for ensuring compliance with this provision by recommending that Member States:

… identify, in their national context, the relevant stakeholders in the CSF Funds, the incentives and the legal and  administrative barriers to partnership and possibly ways to address these  obstacles. Member States are also encouraged to build upon the key existing national/regional/local partnership structures to minimise duplication and save time. Support for capacity-building might be necessary in order to help establish a representative and functioning partnership.[38]

The Commission goes on to suggest that

The ECCP could supplement the Common Provisions Regulation by requiring that the partnership includes the institutions, organisations and groups which can influence or be affected by implementation of the programmes. Specific attention will have to be paid to groups that might be affected by the programmes but find it difficult to influence them, in particular the most vulnerable and marginalised, such as the persons with disabilities, migrants, Roma… It is important to encourage pluralism in the partnership and to bring in the different relevant parts of the public sector alongside business, community-based  and voluntary organisations, covering different types and sizes of organisations and including small innovative players.[39]

[emphasis added].

The specific recognition and mention of persons with disabilities as persons who will be affected by programmes financed by structural funds but who may not have previous had a voice within the national process is a notable progression and one which it is to be hoped will be maintained within the final ECCP.

Recognising the need to adjust partnerships in light of the programmes being undertaken, the document also states:

For the ERDF and Cohesion Fund, partnerships will include … economic and social partners, representatives of NGOs having developed an expertise for cross-cutting issues, such as gender equality or accessibility for persons with disabilities, and for the relevant sectors where the funds are active …

For the ESF, the involvement of economic and social partners in the partnership is essential. Regional and local authorities will also be key partners, as will the chambers of commerce, business organisations, workers’ education associations, education and training institutions, social and health services providers, NGOs and organisations having developed an expertise in the fields of gender equality, non-discrimination and social inclusion that have close ties with disadvantaged groups such as persons with disabilities, migrants, Roma[40] ….

[emphasis added].

When engaging in this partnership process, Member States are also reminded that

Accessibility for persons with disabilities to the process both in terms of the physical environment and the information provided will also need to be taken into consideration.[41]

Therefore, if this language is maintained in the final version of the ECCP, EU Member States will have clear guidance in relation to the need to specifically structure their partnerships based on the nature of the programmes being undertaken.

The Current Status of the Proposals

The General Affairs Council has made it plain that it rejects some of the more positive elements in the Commission’s proposals, particularly the proposed general regulation. At a meeting on the 24th of April 2012 the Council reacted strongly and negatively to the draft proposed by the European Commission.  At that meeting the Member States agreed on a “partial general approach” and adopted its own text. A “general approach” is a political agreement of the Council pending the adoption of a first reading position by the European Parliament. The general approach in this case is ‘partial since’ some elements were not addressed including the exact sums to be devoted to cohesion policy and the eligibility of different regions. A second partial general approach was reached by the Council on elements of the Regulation proposals at a meeting on the 26th of June 2012.[42]

The Council text focused on the general regulation and proposed the removal of all ex ante conditionalities.  Furthermore, the Council’s text significantly weakened the role of the European Commission in monitoring compliance and withholding funds. The Council did not, however, propose changes to the ESF and ERDF provisions outlined above.

The nature of the co-decision process means that further opportunities arise to return to the position adopted in Council.[43] Indeed, when the proposals were sent for a first reading to the European Parliament (Committee on Regional Development – REGI committee), MEPs also suggested amendments to the text.[44]

Further to these considerations by the Council and the Parliament, on the 11th of September 2012 the Commission adopted an amended proposal for the ‘general regulation’.[45] The amendments which this proposal contained are intended to address the fact that, as mentioned above, both the Council and the REGI committee of the European Parliament have signalled that they wish to see the CSF adopted as an annex to the regulation and not as a delegated act. Therefore, in this most recent proposal, the Commission has ‘split’ the elements of the CSF between a new annex (Annex I) to the CPR and a delegated act. Crucially, these amended proposals for the general regulation retained all the ex ante conditionalities contained in the original October 2011 proposals.

Most recently (16th October 2012) the General Affairs council reached a third partial general approach on further elements of cohesion policy.[46]

Agreement on the Regulations and their adoption by the European Parliament and the Council is inextricably linked to the on-going negotiations on the EU’s broader Multi-Annual Financial Framework for 2014-2020 which is expected to be agreed on the 22nd-23rd of November 2012 at a special European Council meeting dedicated to the its finalisation.[47]

The critical deadlock between the Commission and the Council regarding the requirement for ex ante conditionalities within the structural funds regulations (and the consequent effective implementation of Article 19 of the UN CRPD) therefore remains unresolved at the time of writing.


[2] European Commission, ‘Europe 2020: A strategy for smart, sustainable and inclusive growth’, COM (2010) 2020.

[3] Parker, Forgotten Europeans, Forgotten Rights – The Human Rights of Persons Placed in Institutions (2010, Office of the High Commissioner for Human Rights, Regional Office Europe).

[4] Study on the Translation of Article 16 of Regulation EC 1083/2006 for Cohesion policy programmes 2007-2013 co-financed by the ERDF and the Cohesion Fund (Public Policy and Management Institute (PPMI, Lithuania) in partnership with Net Effect (Finland) and Racine (France), September 2009).

[5] The Council Decision to confirm was made on 26th of November 2009 (Council Decision of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (2010/48/EC), OJ L 23, 27.1.2010). The actual instrument of confirmation was deposited over a year later in December 2010 after the Council adopted a Code of Conduct on the modalities by which the EU and its Member States would appear before the UN on the convention (Code of Conduct between the Council, the Member States and the Commission setting out internal arrangements for the implementation by and representation of the European Union relating to the United Nations Convention on the Rights of Persons with Disabilities, Council of the European Union, Legislative Acts and other Instruments, No. 16243/10, Brussels, 29 November 2010).

[6] Case C-244/04 IATA v. Department of Transport [2006] ECR I-403, para. 35.

[7] For a more detailed analysis of the nature of mixed agreements, see Craig & de Burca, EU law: text, cases, and materials (4 edn, OUP Oxford 2007), p. 99 and Leal-Arcas, The European Community and Mixed Agreements European Foreign Affairs Review, Vol. 6, Issue 4, Winter 2001, pp. 483-513, Kluwer Law International.

[8] Case C-239/03 Commission of the European Communities v French Republic [2004] ECR I-09325, para. 25. See also, Case 12/86 Demirel [1987] ECR 3719, para. 9 and Case C-13/00 Commission v Ireland [2002] ECR I-2943, para. 14.

[9] Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities [2008] ECR I-6351.

[10] Council of Europe Commissioner for Human Rights, The Right of People with Disabilities to Live Independently and be Included in the Community Comm DH/Issue Paper (2012) 3 (Strasbourg, 13 March 2012).

[11] Ibid, p. 8.

[12] Ibid, p. 9.

[13] ‘Choice and control: the right to independent living – Experiences of persons with intellectual disabilities and persons with mental health problems in nine EU Member States’ Fundamental Rights Agency, 7th of June 2012 (Luxembourg: Publications Office of the European Union, 2012).

[14] Ibid, p. 14.

[15] The Committee on Economic, Social and Cultural Rights, General Comment 3, 14 December 1990, para. 2.

[16] The Committee on Economic, Social and Cultural Rights, General Comment 5, 12 September 1994, para. 9.

[18] Proposal for a Regulation of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund covered by the Common Strategic Framework and laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1083/2006, Brussels, 6.10.2011 COM(2011) 615 final 2011/0276 (COD).

[19] European Commission, Cohesion Policy 2014-2020 – Investing in Growth and Jobs (Luxembourg: Publications Office of the European Union, 2011), p. 3.

[20] Article 17.(4).

[21] Article 17.(3).

[22] Proposal for a Regulation of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund covered by the Common Strategic Framework and laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1083/2006, Brussels, 6.10.2011 COM(2011) 615 final 2011/0276 (COD), p. 152.

[23] Ibid, p. 148.

[24] Explanatory Memorandum COM(2011)607, p 2.

[25] Proposal for a Regulation of the European Parliament and of the Council on the European Social Fund and repealing Regulation (EC) No 1081/2006, Brussels, 6.10.2011 COM(2011) 607 final 2011/0268 (COD), p. 9.

[26] Ibid, Article 8.

[27] Proposal for a Regulation of the European Parliament and of the Council on specific provisions concerning the European Regional Development Fund and the Investment for growth and jobs goal and repealing Regulation (EC) No 1080/2006, Brussels, 6.10.2011. COM(2011) 614 final 2011/0275 (COD), Article 5(9)(a).

[28] Wasted Money, Wasted Time, Wasted Lives… A Wasted Opportunity? A focus report on how the current use of Structural Funds perpetuates the social exclusion of disabled people in Central and Eastern Europe by failing to support the transition from institutional care to community-based services, European Coalition for Community Living (ECCL), 2010, 32.

[29] European Commission, ‘Commission Staff Working Document – Elements for a Common Strategic Framework 2014 to 2020 for the European Regional Development Fund the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund’. Brussels, 14.3.2012 SWD(2012) 61 final – http://ec.europa.eu/regional_policy/what/future/index_en.cfm#2 (last accessed 29 June 2012)

[30] Proposal for a Regulation of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund covered by the Common Strategic Framework and laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1083/2006, Brussels, 6.10.2011 COM(2011) 615 final 2011/0276 (COD)., Preamble, para. 14.

[31] ‘Sustainability rules over future EU regional funds’ EurActiv (23 January 2012). Available at http://www.euractiv.com/regional-policy/sustainability-rules-future-eu-r-news-510266 -last accessed 28 June 2012.

[32] Isabelle Smets, ‘Common strategic framework: Hahn may make concessions’, Europolitics (29 May 2012)

[33] See the Minutes of the Meeting of the European Parliament Committee on Regional Development of the 29th of May 2012. Available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2bCOMPARL%2bPE-490.973%2b01%2bDOC%2bPDF%2bV0%2f%2fEN (last accessed 28 June 2012).

[34] European Commission, ‘The partnership principle in the implementation of the Common Strategic Framework Funds – elements for a European Code of Conduct on Partnership’. Brussels, 24.4.2012, SWD(2012) 106 final. Available at http://ec.europa.eu/regional_policy/sources/docoffic/working/strategic_framework/swd_2012_106_en.pdf (last accessed 28 June 2012).

[35] Ibid, p. 4.

[36] Ibid.

[37] Ibid.

[38] Ibid, p. 5.

[39] Ibid.

[40] Ibid, p. 9.

[41] Ibid, p. 11.

[43] ‘Ordinary legislative procedure’ http://www.europarl.europa.eu/aboutparliament/en/0080a6d3d8/Ordinary-legislative-procedure.html (last accessed 28 June 2012).

[44] Draft Report on the proposal for a regulation of the European Parliament and of the Council

on the Cohesion Fund and repealing Council Regulation (EC) No 1084/2006

(COM(2011)0612/2 – C7-0325/2011 – 2011/0274(COD)) – Committee on Regional Development. Available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-486.124+01+DOC+PDF+V0//EN&language=EN (last accessed 18 October 2012).

[45] Amended proposal for a Regulation of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund covered by the Common Strategic Framework and laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Council Regulation (EC) No 1083/2006 /* COM/2012/0496 final – 2011/0276 (COD) */ – Available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52012PC0496:EN:NOT (last accessed 15October 2012).

[47] ‘Multiannual Financial Framework: negotiations approaching endgame’http://www.consilium.europa.eu/homepage/highlights/multiannual-financial-framework-negotiations-approaching-endgame?lang=en (last accessed 18th of October 2012).

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Historic Hearing in US Senate on UN Disability Treaty

by Professor Gerard Quinn

A historic hearing took place yesterday (Thursday, July 11th) in the US Senate Committee on Foreign Relations.  The issue before the Committee was US ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD).  In the US system the Senate must gives its ‘advice and consent’ before the Federal Government can ratify a treaty.  A two thirds majority vote is needed from the full Senate before the Administration can proceed to ratification.  This is an exceedingly high bar but, especially after yesterday, it looks likely to be met.  It is now almost a foregone conclusion that the Committee – chaired by Senator John Kerry (D-Mass) – will commend a positive vote to the full Senate.

This really matters not just for the US but also for the rest of the world.  And it would certainly up the ante for Irish ratification.  The traditional bi-partisan approach of the US Congress was splendidly exemplified in opening remarks made to the Committee by Senators John McCain (R-Ariz) and Tom Harkin (D-Iowa).  The symbolism of their joint appearance spoke volumes about the natural reflex of both parties in favour of the civil rights of persons with disabilities.  Indeed, both of them relayed the support of former President H W Bush as well as former Senator Bob Dole.  This immediately took the issue out of the cauldron of partisan politics and placed it where it should be – as matter of high principle.

There were two panels of experts giving testimony to aid the deliberations of the Committee.  The first panel consisted of representatives of the Administration.  The first was Honorable Judith Heuman who is a veteran for previous civil rights campaigns on disability and who currently serves as the first ever special adviser in the US State Department on foreign relations on disability.  She was joined by Ms Eve Hill who serves as senior counselor on civil rights to the Assistant Attorney General.  Both put forward and amplified the view of the Obama Administration in its proposal for ratification.  The Administration signed the CRPD in 2009 and conducted an exhaustive cross-Administration process of review in order to prepare a concrete proposal for the Senate for ratification.  This took 18 months to complete and culminated in a formal proposal from the Administration ratification two months ago.

The proposal for ratification from the Executive Branch contained several suggested Reservations as well as Declarations and Understandings (inelegantly styled RUDs) to ease the path of ratification.  The most important reservations suggested by the Administration have to do with Federalism and with the question whether the convention can create new rights that be litigated in State Courts.  Essentially the Federalism reservation is to the effect that nothing in the convention is to have any direct reach into State law.  This is a boilerplate reservation entered by the US into nearly every international human rights treaty.  It is intended to preserve State sovereignty.  The second important reservation is to the effect that no new cause of action is created by ratification.  That is to say, the convention is not to be considered self-executing.

Both Ms Hueman and Ms Hill were at pains to point out that the convention rests essentially on basic American values such as dignity, autonomy and equality of opportunities.  They portrayed the convention as an international projection of American civil rights law – the crowning achievement of which is the Americans with Disabilities Act (ADA) which was signed into law by President Bush in 1990.  They asserted that the convention is essentially a non-discrimination instrument and therefore perfectly compatible with US law.  They also asserted that US law is substantially in compliance and probably more in compliance than the laws of any other country.  And they asserted that US national interests – including commercial interests – were best served by ratification.  Although US disabled citizens enjoy high levels of rights protection at home they have a right to expect similar standards abroad as travellers, workers and businessmen.  The US, it was said, could more credibly criticize others once it ratified.  And ratification would entitle the US to share in an international dialogue about how to advance the rights of persons with disabilities based on its own very substantial track record.

The questioning from most of the Senators was sympathetic.  The lead witnesses were asked to clarify and expand on their core asserts that US law is in compliance and that the convention represents no intrusion on sovereignty.  One suspects this was done to solidify the record.   While sympathetic to the goals one the convention, one Senator questioned whether ratification was necessary given that US law already complied and given that the US could already assume leadership without belonging to the UN treaty process.  These were fair questions to which the main answer was that membership of the treaty system would enable the US to magnify its influence and soft power over an issue that affects nearly 1 billion people worldwide.

Another panel of experts from outside the Administration was also given an opportunity to make their views on ratification known.  Former Attorney General Dick Thornburg – one of the architects of the ADA – voiced strong support.  John Wodach – former Head of Disability Unit in the Civil Rights Division at the Justice Department and one of the drafters of the UN convention – lend his considerable experience and wisdom in support.  John Lancaster – a former US marine who served with great distinction and was disabled in Vietnam – gave powerful testimony about the unanimous support for ratification from many veterans groups.

The testimony wasn’t all one way.  Mr Stephen Groves (Heritage Foundations) voiced strong skepticism about the value of treaty ratification in general and particularly concerning the quality of advice that would come from the UN treaty monitoring body.  Dr Michael Ferris (Patrick Henry College) echoed these views but also added the argument that the convention would erode the rights of families to decide on the education of their won children contrary to US law.  The Senators appear to have accepted the counter-arguments that while the UN Committee can persuade it cannot command and that the rights of families remain intact.  There was some skirmishing over the issue of whether mention of reproductive health encompassed and expanded abortion rights.  But the preponderant view was that the convention in no way has this effect.

The hearings ended with a powerful plea from the heart of John Lancaster who, speaking as a veteran, lauded the convention as something based on American values and observing that if the US failed to ratify’ then he couldn’t see ‘what America is about.’  In a sense he held up the convention as a mirror and saw America and invited the Senate to draw the obvious conclusion and recommend ratification.

The stage is now set for the issue to be reported back to the full Senate for a vote on ratification.  If the tenor of the questioning in the Committee on Foreign Relations is anything to go by then ratification should be assured.  Nonetheless, ensuring a two thirds majority is a daunting task.  There is no doubt at all that US ratification would enable the US to substantially step up its global dialogue on how to advance the rights of persons with disabilities.  It would enable the US to shape the dialogue at the annual Conference of States Parties and maybe transform it into a genuine platform for the exchange of policy perspectives.  And it would give the US a voice in the election of the UN Committee on the Convention on the Rights of Persons with Disabilities.  Equally significantly if the process of reform can be embedded around the world then that would give US companies to the fore of accessible technology a chance to transform lives.

If, as hoped, the US ratifies soon, then US/EU high level dialogue on disability policy will doubtless be stepped up.  Irish ratification would likewise enable us to actively join the global conversation which, during times of economic austerity everywhere, is more important than ever.

Professor of Law, Director, Centre for Disability Law & Policy, NUI Galway.

Gerard.quinn@nuigalway.ie

www.nuigalway.ie/cdlp

The video of the hearing is available at: http://www.foreign.senate.gov/hearings/hearing_convention-on-the-rights-of-persons-with-disabilities-treaty-doc-112-7

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Oireachtas Committee Produce Significant Report on New Legal Capacity Legislation

Yesterday the Joint Committee on Justice, Defence and Equality published a very significant Report on the Mental Capacity Bill 2008.  The Report followed on from written submissions that the Committee called for in August 2011 and two public hearings the Committee held in February.  The Committee in its report acknowledged that the new legislation must reflect human rights-based approach to legal capacity.

The main points made in the Report are as follows 

  • The best interests principle is not appropriate in relation to adults when questions are raised in relation to their decision-making
  • Article 12(4) of the UN Convention on the Rights of Persons with Disabilities requires respecting the “will and preferences” of the person be the central principle
  • A court is not an appropriate forum for examining issues around legal capacity
  • The legal capacity legislation should provide for advance care directives including advance care directives in mental health
  • The new legal capacity legislation needs to move away from guardianship and should be based on supported decision-making
  • Decisions made by third parties for someone else should only be done as a last resort

 This Report is a very significant reference point for the new legal capacity legislation.  The Mental Capacity Bill 2008 (heads of the bill) is clearly out of step with international human rights law, in particular Article 12 of the CRPD.  It is expected that the government will publish the legislation shortly and it will be important that the above points are factored into the legislation.  Another important reference point is the Essential Principles: Irish Legal Capacity Law.  The principles were developed by 15 civil society organizations.  The principles are based on best international practice and the guiding ethos of the UN Convention on the Rights of Persons with Disabilities. Putting these principles in law would enable the Government to honour its Programme for Government commitment to introduce capacity legislation in line with the UN Convention. It would also result in a real improvement in people’s lives.

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ECHR Cases on Denial of Legal Capacity to Persons with Disabilities

by Eilionoir Flynn

In light of the Oireachtas Justice Committee’s report on the Mental Capacity Bill which will be launched later today, I wanted to reflect on two recent ECHR cases which have demonstrated how a denial of legal capacity to disabled people, through the imposition of an adult guardian, leads to the violation of other fundamental rights – such as the right to a fair trial, the right to be informed of decisions made about the person, the right to liberty and freedom of movement, and the right to freedom from inhuman and degrading treatment or punishment. These cases – Stanev v Bulgaria and DD v Lithuania have already generated significant commentary in the disability rights movement (see here and here) – as these cases represent the first time in which the European Court has acknowledged that detention of a person in a social care home, rather than a psychiatric hospital or institution can constitute a breach of Article 5. As Ireland moves towards reforming its law on capacity, it is worth bearing in mind the comments which have been made by the European Court, especially with regard to the ways in which adult guardianship can violate the rights of disabled people.

In Stanev v Bulagaria the applicant’s family members had applied to the regional court for a declaration of total incapacity and the appointment of an adult guardian. The court carried out what is known as a functional assessment of capacity – in other words, a test of Stanev’s ability to understand information, use and weigh information to reach a decision, retain information long enough to make a decision, communicate the decision to others, and understand the consequences of the decision to be made. As part of this functional assessment of his capacity, the regional court considered evidence that Stanev had been diagnosed with schizophrenia, had been admitted to psychiatric hospitals on several occasions, sold all his possessions, begged for a living, spent all his money on alcohol and became aggressive whenever he drank. Based on this evidence, the court found that Stanev was not totally legally incapable, but made a finding of partial incapacity, which was upheld on appeal. The relevant authority subsequently authorised the appointment of a temporary public guardian to Stanev, as his family members were unwilling to act as his guardian.

At the time of this appointment, Stanev was living in a small annex to his half-sister’s house. Since he had been found not to have the capacity to decide where to live, his guardian made an application for Stanev to be moved to a social care home. An agreement with the care home was subsequently drawn up and signed by the guardian, and Stanev was not consulted or informed of the reasons for this decision, or how long he would have to stay in the care home. Stanev was transferred to the care home by ambulance. The conditions in the care home were appalling, and led to a finding by the European Court that these conditions amounted to inhuman and degrading treatment, in violation of Article 3 of the European Convention on Human Rights.  In addition, the care home kept Stanev’s identity papers, meaning that Stanev could not travel without the explicit permission of the Director of the care home, even to go to the local village.  Once the period of appointment for the temporary public guardian had elapsed, the Director of the care home was then appointed as Stanev’s guardian. Stanev was not free to leave the care home where he had been placed, leading the European Court of Human Rights to find that he had been unlawfully deprived of his liberty, in violation of Article 5 of the European Convention on Human Rights.

The circumstances which Stanev faced are extreme examples of the damage that can result to an individual who is placed under adult guardianship. Some might argue that this damage could have been prevented if the guardian had been better monitored, if conflicts of interests had been avoided (e.g. in the appointment of the director of the care home as his guardian), if Stanev had been consulted about the decisions to be made and his wishes taken into account. However, even if all of these safeguards were in place, the transfer of legal capacity in relation to the decision about where to live from Stanev to his guardian means that it would still be possible for a guardian to have placed Stanev in a care home which he was not free to leave. Even if the physical conditions and facilities in the care home had been better, Stanev would still have experienced significant restrictions in his daily routine and would not necessarily have had access to opportunities to participate in the community – e.g. employment in the open labour market, mainstream education, making friends and forming relationships with individuals other than paid staff. These are all basic opportunities which the public at large may take for granted, but are often denied to people with disabilities, especially those who live in institutional care, and whose legal capacity is restricted or removed entirely.

In DD v Lithuania, the applicant had developed schizophrenia, apparently as a result of shock at discovering that she was an adopted child. Her adoptive father applied to the district court to have her declared legally incapable and this finding was made. He subsequently applied to have her placed in care home for people with intellectual disabilities. DD’s psychiatrist was appointed initially as her guardian, but subsequently asked to be removed, claiming she had only consented to the initial appointment due to the strained relationship between DD and her father, including suspected financial abuse. The psychiatrist was then removed and her father was appointed as her legal guardian. Her father asked the care home to restrict visits to DD, and not to allow her former psychiatrist to visit her, which the care home agreed to do. He eventually removed her to his own flat. She escaped and was returned to the care home by police on two separate occasions.

DD attempted to have her guardianship tranferred back from her father to her former psychiatrist and asked the care home to ininitiate proceedings, but this request was refused. She then applied to the court for a review of the decision to appoint her father as guardian, arguing that she had never been consulted or involved in determining who her guardian would be, and had not been present at hearings. At the new preliminary hearing held on whether to reopen the guardianship case, DD was not allowed separate legal representation on the basis that her father, her legal guardian, had legal representation and that this was sufficient. DD alleged that she was threatened by the judge in his office during these proceedings that if she did not agree to the appointment of her father as guardian, an application would be made to place her former psychiatrist under guardianship.  She subsequently agreed to the appointment of her father as her guardian and the court therefore did not reopen guardianship proceedings.  Ultimately, her father asked to be relieved of responsibility as DD’s guardian and the care home in which she lived was then appointed as her guardian.

The European Court of Human Rights found that DD’s placement in the care home constituted detention as she was not free to leave; however, it found that such detention was lawful as it had been consented to by her guardian. However, the court did find a breach of Article 5.4 since there was no process for DD to have her detention reviewed. Unlike in Stanev, the Court found that the conditions in the care home did not amount to inhuman or degrading treatment. DD had argued that the use of restraint and seclusion constituted a breach of Article 3 but the Court found that these interventions were medically necessary and thus did not constitute a violation of rights.  In addition, the Court found that the proceedings in the domestic court resulting in the decision not to reopen DD’s guardianship case were not carried out in a fair manner and constituted a violation of  Article 6.1.

In short, these decisions contribute to an emerging body of case law from the European Court of Human Rights where the placement of people with disabilities (generally those with intellectual disabilities or mental health conditions) in adult guardianship has resulted in a violation of their fundamental rights. Article 12 of the UN Convention on the Rights of Persons with Disabilities which recognises that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” e has been cited approvingly by the European Court and the notion of legal capacity – the right to make one’s own decisions and have these decisions respected in law – as a universal attribute inherent in all persons, regardless of the individual’s level of decision-making ability, is gaining traction in international commentary (see here and here). Therefore, the approach of the UN Committee on the Rights of Persons with Disabilities, which has strongly urged Spain and Tunisia to replace systems of substituted decision-making, such as adult guardianship, with systems of supported decision-making which respect the will and preference of the individual, should be borne in mind by Ireland as we move towards the publication of our capacity legislation.

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Oireachtas Justice Committee concludes hearings on Capacity legislation

by Eilionoir Flynn

Last month, the Oireachtas Joint Committee on Justice, Defence and Equality last month held its second and final hearing on the proposed Mental Capacity Bill. The hearings focused on proposed amendments to the 2008 Scheme of the Mental Capacity Bill – the only published document to date which gives a concrete outline of what the legislation might look like. The 2008 Scheme has been widely criticised, by the Law Reform Commission, Amnesty International, the Alzheimers Society of Ireland and others, for failing to adequately protect the rights of adults who might become subject to guardianship – and for adopting an inflexible courts-based process for determinations relating to decision-making. ImageOver the course of two hearings on the 22nd and 29th February, the Justice Committee heard a strong message that the thinking on capacity and decision-making, both internationally and nationally, has moved beyond guardianship to focus on enabling people to make their own decisions with support – and even using a support approach to facilitate decision-making where the person’s wishes cannot be determined. A coalition of organisations and individuals across the domains of intellectual disability, mental health, and older people came together to formulate human rights-based principles to underpin the legislation, and a number of these groups made presentations to the Justice Committee.

As I mentioned in a previous post, these hearings coincided with the publication of an issues paper on legal capacity by the Council of Europe Commissioner for Human Rights, Thomas Hammerberg. Lauri Sivonen, advisor to the Commissioner presented the key messages from the issues paper to the Oireachtas Committee at the hearing on the 29th. He stated that “Member States [of the Council of Europe] should also abolish mechanisms for plenary guardianship and full incapacitation in light of the European Court’s jurisprudence and develop supported decision making alternatives and safeguards for these supports.” Mr Sivonen urged Ireland to “take a lead in this field and be an example to other European countries.”

The essence of the proposal set out by the organisations which came together to develop principles for the legislation is that the legislation should address legal capacity i.e. the right to make one’s own decisions as an actor within the law and to have these decisions respected by the law, rather than ‘mental capacity’ which refers more to decision-making ability which varies and fluctuates in each individual. Many organisations involved in the development of these principles support the position as set out in Article 12 of the Convention on the Rights of Persons with Disabilities that legal capacity is a universal human attribute – regardless of the levels of decision-making ability a person may have at any given point in time.

The principles developed by the organisations (including the Centre for Disability Law and Policy at NUIG, Amnesty International, Alzheimers Society of Ireland, Age Action, National Federation of Voluntary Bodies, Shine, Inclusion Ireland, National Institute for Intellectual Disability at TCD) and discussed at the Committee hearings, adopt a continuum of support approach which could be reflected in the capacity legislation. A ‘Continuum of Supports’ model includes three different levels of support: (i) ‘legally independent’ – where a person has the ability to make decisions with only minimal support e.g. easy to read information. (ii) ‘supported decision-making’ – where a person is supported by someone they trust to make a decision, and (iii)‘facilitated decision-making’ – this is used as a last resort where the person’s will and preferences are not known. Here, a representative has to determine what the person would want, based on what they know about that person and on their best understanding of their wishes.

Building on this continuum, many organisations highlighted the need to replace the notion of ‘best interests’ in capacity legislation with ‘will and preferences’ of the person – even in cases of last resort where facilitated decision-making is required. The Centre for Disability Law and Policy also suggested that the legislation should not provide for a front-end assessment of capacity, including functional tests of capacity, on the basis that such tests hold people with disabilities to a higher standard than the rest of the population in terms of ability to make decisions and have decisions respected in law. As an alternative, the Centre suggested that the only valid reason for undertaking an assessment of decision-making capability should be to assess what supports need to be provided – not to restrict the person’s legal right to make decisions.

These proposals were well received by the Committee with the Chair, David Stanton TD concluding at the end of the session that: “Having listened to everyone – in the context of the previous set of hearings in which we engaged – it is obvious that we are concerned with a paradigm shift. The scheme of the Bill was drawn up in 2008 and it appears that there may be a need to tear it up and start again in order that we might get the philosophy right. We have the opportunity now to do this.”

Although the possibility of a third Justice Committee hearing to hear from individual rights-holders affected by the legislation was mooted, it appears that this is now not going ahead. The Committee has recently approached the organisations which made written and oral submissions for permission to publish parts of these submissions in its written report with proposed amendments to the capacity legislation. It is anticipated that this report will be published in the coming weeks and will influence the formation of the draft capacity legislation currently being worked on in the Department of Justice.

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European Disability Forum is Recruiting a Human Rights Officer

The European Disability Forum (EDF) is currently seeking a human rights officer,  The EDF is the European umbrella organisation composed of and led by persons with disabilties, representing the interests of 80 million disabled persons in Europe. ImageThe mission of EDF is to ensure persons with disabilities full access to fundamental and human rights through their active involvement in policy development and implementation in Europe. EDF works closely with the institutions of the European Union (EU), the Council of Europe and the United Nations.  The deadline for applicartions is  6/04/2012.  For more information see here.

EDF is seeking a Human Rights Officer with good knowledge and experience on human rights, non-discrimination, and equality including gender equality issues. The ideal candidate is:

  • committed to a human rights/social model approach to disability
  • understanding and knowledge of the United Nations Convention on the rights of persons with disabilities
  • with a good understanding of working in the political and civil society environment
  • he/she is able to work effectively in English and French and to assimilate and communicate information
  • the knowledge of EU policies, EU institutions and procedures will be an important asset.

Main Duties:

  • All tasks are to be implemented on the basis of decisions adopted by the governing bodies of the EDF, mainly in the areas of theimplementation of the UN Convention on the Rights of Persons with Disabilities, mainstreaming of disability in human rights work at EU level, non-discrimination, women’s rights, and health equality.
  • Monitor developments , policies and actions in relation to disability covering the fields of main responsibility at EU and UN level
  • Alert  the EDF to threats and opportunities for disabled people at EU level: implementation of EU adopted legislation in the area of anti-discrimination and EDF strategy towards further legislation, implementation of equality and anti-discrimination provisions of EU Treaties, the EU Charter of Fundamental Rights, gender equality and health equality
  • Inform  EDF members of the opportunities to engage in international human rights work, including at the level of the UN Treaty bodies and the Human Rights Council
  • Provide  user-friendly information for EDF members on policy and legislative initiatives covering the fields of main responsibility
  • Research  and write briefings and reports on policy and legislative initiatives and programmes
  • Write  regular pieces for the EDF newsletters and other publications
  • Assist in the development of campaigning strategies in the implementation of the UN CRPD, fundamental rights and non-discrimination, and equality for women with disabilities
  • Provide political intelligence and a political overview
  • Provide legal expertise in the area of human rights and non-discrimination
  • Support the preparation of thealternative report of the EDF to the UN CRPD Committee
  • Prepare the written submission on the basis of analysis of work at EU level and EU report, in consultation with EDF members
  • Foster close links and co-operation with members on human rights and non-discrimination matters and to support the advisory group on the UN CRPD as well as the women’s committee
  • To provide support for the agenda setting and documents for the preparation of internal meetings
  • Support EDF in developing contacts with the EU institutions, as well as international human rights bodies and organisations
  • Support EDF work towards the International Disability Alliance, mainstream human rights NGOs and gender equality NGOs
  • Undertake research and provide background briefings and information for members and external organisations on request
  • Provide the required comprehensive and tailored information about EU matters to effectively support EDF members in their work
  • Facilitate EDF members’ involvement in the process of implementation of the CRPD at national level and in reporting to the UN Committee on the rights of persons with disabilities through information and training
  • Assist in the preparation required for EDF meetings and meetings between EDF and external organisations and actors

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