New expert legal opinion says the government’s welfare reforms “result in very serious breaches” of international human rights law and constitute “human rights violations for disabled people” and describes the proposals as “aggressive measures”, “regressive” and “prohibited”.
The expert legal opinion on the government’s proposals, written by Jamie Burton KC of Doughty Street Chambers, was commissioned by Equity, which supports many disabled members among the 50,000-strong overall membership. Equity General Secretary Paul W Fleming said it was “morally and economically indefensible for this government to attack the rights and living standards of disabled people, including so many disabled performers and artists who already struggle to make ends meet.”
The legal opinion looked at a range of international laws along with UN obligations and principles which the UK is signed up to. It found breaches in a number of areas and concluded: “the aggressive measures set out in the Government's proposals will inevitably result in very serious breaches of the UK's obligations under the UNCRPD and by ICESCR. They are likely to be condemned by the treaty monitoring bodies, who have become all too familiar with very similar reforms designed to cut the welfare bill and promote work, but which ultimately result in yet further and long-standing human rights violations for disabled people.”
Importantly, the opinion notes that these regressive reforms are being proposed to a system that is already “failing disabled people, in violation of the Government’s human rights obligations” according to international law and will therefore “exacerbate those violations.”
Paul W Fleming, Equity general secretary, said: “Society erects many barriers to becoming a successful disabled performer, creative or stage manager. Disabled artists in our industries face censorship, low pay and precarity.
“It is morally and economically indefensible for this government to push disabled performers and artists further away from the labour market, through attacks on their rights and living standards. Most are already struggling to make ends meet.
"Through Equity’s collective agreements we are standing up for disabled workers across our industries. It is time that politicians took a stand for disabled people alongside us.
“As the legal opinion makes clear, changes to the policy being speculated on in the media are unlikely to shift the substantive position that these reforms are regressive and will likely still represent a breach of the UK’s human rights obligations to disabled people.
“Enough is enough. If the Prime Minister truly cares about human rights and our international legal obligations, he will finally put an end to the nearly fifteen years of attacks on disabled people.”
Disabled workers are underrepresented in the creative industries in comparison to other parts of the economy and Equity argues for a supportive and enabling welfare system which enhances the lives of disabled artists and enables their participation in the workforce. We believe – and this legal opinion states – that the government’s proposals will worsen the lives of disabled people and be in breach of international human rights law in several areas and not make it easier to enter the jobs market.
“Regressive” and “prohibited”
The legal opinion says: “there can be no doubt that the reforms are regressive in human rights terms. Therefore, in accordance with the principle of non-retrogression, they are presumed to be prohibited under UNCRPD, ICESCR and UNCRC. Accordingly, the burden falls on the Government to show that despite the regressive nature of the reforms, they are complying with their obligations under the Treaties.”
Postscript from Jamie Burton KC:
“Since this opinion was prepared, it has become public knowledge that the Government under pressure from its backbenches, has offered concessions on the Bill. The principal concession is a so called ‘grandfathering’ clause that would preserve PIP for those currently in receipt of it. If this came to pass it would not alter the analysis above as the reforms would still be regressive in a systemic sense and would have the same consequences in terms of breaching the human rights obligations to disabled people not currently in receipt of PIP but who would otherwise be entitled to it after the reforms came into force. The outcome where people with comparable disabilities would be treated drastically differently would also be potentially discriminatory and unlawful on the grounds of arbitrariness. The air of political expediency would be very difficult to expunge.”
Through Equity’s collective agreements we are standing up for disabled workers across our industries. It is time that politicians took a stand for disabled people alongside us.
Paul W Fleming
Other key parts of the legal opinion (numbers refer to paragraphs in the legal opinion):
20: The Treaties have not been incorporated into domestic law and as such are not directly enforceable by individuals in the UK Courts. However, the rights within them represent binding obligations in international law. That means the UK has pledged to respect, protect and promote the rights and ensure its domestic laws and policies comply with them. The UK is bound by the general international law requirement to comply with treaty obligations in good faith, expressed in the maxim pacta sunt servanda. This is a principle of customary international law and therefore binds the UK through its government. It is enshrined in Article 26 of the Vienna Convention on the Law of Treaties and is foundational to the maintenance of the international legal system, and thereby the UN human rights framework.
24: The UK is bound by the UNCRPD Optional Protocol and therefore the CRPD may initiate a country inquiry if it receives reliable information containing well-founded indications of serious, grave or systematic violations of the conventions in a State party.
27: Implicit in the obligation to progressively improve ICESCR rights realization is an additional obligation not to take retrogressive (backward) steps. This obligation has been recognised and promulgated in various General Comments from many of the TMBs and other international human rights bodies and indeed the domestic courts.1
28: In relation to the right to independent living, CRPD in its General Comment No 5 states:
43. When a State party seeks to introduce retrogressive measures with respect to article 19, for example, in response to an economic or financial crisis, the State is obliged to demonstrate that such measures are temporary, necessary and non-discriminatory and that they respect its core obligations.
44. The duty of progressive realization also entails a presumption against retrogressive measures in the enjoyment of economic, social and cultural rights. Such measures deprive people with disabilities of the full enjoyment of the right to live independently and be included in the community. As a matter of consequence, retrogressive measures constitute a violation of article 19.
Article 19 recognizes the right of all persons with disabilities to live independently and be included in the community.
46. The duty of progressive realization entails a presumption against retrogressive measures in the enjoyment of economic, social and cultural rights. When retrogressive measures are adopted, States parties should demonstrate that they have been introduced after careful consideration of all alternatives and that they are duly justified, by reference to the totality of the rights provided for in the Convention, in the context of the use of the maximum available resources of the State party. Under the criteria adopted by the Committee on Economic, Social and Cultural Rights on the prohibition of retrogression in the realization of economic, social and cultural rights,1 States parties should demonstrate that:
(a) There is reasonable justification for the action;
(b) Alternatives were comprehensively examined;
(c) There was genuine participation of affected groups in examining proposed measures and alternatives;
(d) The measures are not directly or indirectly discriminatory;
(e) The measures will not have a direct impact on the realization of the rights set out in the Convention, or an unreasonable impact on acquired rights, or on whether an individual or group will be deprived of access to the minimum level of social security;
(f) There was an independent review of the measures at the national level.”
