European Communities (Definition of Treaties) (United Nations Convention on the Rights of Persons with Disabilities) Order 2009

I will move that the Grand Committee has considered the report of the Joint Committee on Human Rights, United Nations Convention on the Rights of Persons with Disabilities: Reservations and Interpretative Declarations. This is the 12th report, HL Paper 70. The JCHR has previously published a full report on the Convention—HL Paper 9 of 4 January 2009—and on the Government’s response to that report—HL Paper 46 of 6 March 2009. We warmly welcome the Government’s decision to ratify the convention and to sign the optional protocol. As the Equality and Human Rights Commission has said, the convention represents a major milestone on disabled people’s journey from being treated largely as objects of welfare and charity to being respected as full citizens, with the rights and responsibilities that this status confers. However, we do not welcome the Government’s refusal to consult publicly about the reservations that they intend to make, or the unnecessary breadth of those reservations. I am grateful to the Minister for his helpful introductory speech and for the indication that the Government’s mind is still ajar and not firmly closed to some of the issues that I shall be raising. I have given notice in advance of some of the questions that I will ask, in so far as they are not clear already. I am delighted that the noble Lord, Lord Hannay, and my noble friend Lord Maclennan are taking part in this debate, because of their particular experience and concern about the role of Parliament in scrutinising treaties. This is a subject that I have frequently raised in Private Member’s Bills and evidence to the Wakeham committee on Lords reform. I persuaded the previous Conservative Government to enhance parliamentary scrutiny by publishing Explanatory Memorandums when laying conventions to Parliament prior to their ratification, as was done in this case on 3 March, but, despite the Wakeham committee’s recommendations, we still have no treaty scrutiny committee and the arrangements for parliamentary scrutiny of treaty-making remain haphazard and unsatisfactory. The Government have lost enthusiasm for even their timid Constitutional Renewal Bill, grandly described two years ago as, ""intended to rebalance power between Parliament and Government, and give Parliament more ability to hold Government to account"." It looks more and more likely that that will not be part of this Government’s legacy. Parliament rarely has the opportunity to scrutinise conventions before they are ratified. The reasons why the House has this brief opportunity to do so are, first, because, as the Minister has explained, the Government have to obtain approval for the draft order specifying the convention as a Community treaty for the purposes of the European Communities Act 1972, and, secondly, because the JCHR has produced a scrutiny report. I managed with help from the Government Whips’ Office, for which I am grateful, to squeeze in my Motion while time was running under the Ponsonby rule. I believe that this has never happened before. For the benefit of those who do not know much about the Ponsonby rule, it resulted from the fact that Ramsay MacDonald and his junior Ministers did not like secret treaty-making during the First World War. In the early 1920s, during the debate on the Treaty of Locarno, Arthur Ponsonby, the son of the private secretary to Queen Victoria, got up and gabbled out a new procedure that became the Ponsonby rule. It was out of order but it is a convention which applies to both Houses. The only safeguard that Parliament has is that a convention is laid before Parliament before ratification, but not that there is normally a debate. I greatly welcome the fact that we are able to have this debate, but I suggest that there is a pressing need to meet the need for better parliamentary oversight of treaty-making as regards important multilateral conventions and other treaties which reach into the nooks and crannies of our lives, while not unduly hampering the necessary powers of the Executive, as happens in the United States Senate. I do not think that we want that. In the JCHR's first report, we recommended that the Government should publish the outcome of their own review of the compatibility of domestic law and practice with the requirements of the convention. That would assist with more detailed scrutiny of the Government’s approach to ratification. The Government should be able to explain clearly why they consider that UK law and administrative practice currently comply with the requirements of the convention. I am sorry to say that the Government’s response was lamentable. They said have said that, ""it would be neither practical nor desirable for details of all the matters that have been considered and resolved in over two years work to be published"." That is not what we sought and this is the only opportunity for Parliament to be informed by the Minister about the Government’s views on compatibility with domestic law and practice. We hope that he will be able to do so today and, if not today, in writing quickly thereafter. The JCHR considers that the Government should have consulted on both the justifications for and the precise terms of the reservations and interpretative declarations they proposed to make to the convention. This should have been done either before the convention was laid before Parliament on 3 March or for a specified period thereafter. We explained in our report: ""It is not acceptable for the Government to claim that consultation cannot take place now because of the need to ratify as soon as possible, when the Government delayed its own timetable for ratification in order for departments to agree their positions. Nor can inviting disabled people and organisations to write to the Minister or other parliamentarians be a substitute for a proper consultation on the terms on which the UK will ratify the Convention"." The JCHR report deals with parliamentary involvement in the ratification process in paragraphs 14 to 18. We again draw attention to the limited extent to which Parliament can scrutinise the Government’s proposals to ratify treaties and we call on the Government to bring forward their proposals for enhancing parliamentary scrutiny of treaties as soon as possible, whether in the Constitutional Renewal Bill or otherwise. We hope the Minister will be able to give in his reply concrete details about the Government's intentions. We also seek clarification in this debate, regarding paragraph 20 of our report, on whether specifying the convention as a Community treaty is a necessary step to UK ratification and how this will affect the UK’s timetable for ratification, particularly if the scrutiny reserves of parliamentary EU committees are engaged. As regards the Explanatory Memorandum, in paragraph 22 we express regret that it provides no explanation of the Government’s view that the proposals for reservations and an interpretative declaration are compatible with the object and purpose of the convention, which is crucial. The JCHR’s experience in scrutinising the UK's implementation of the UN Convention on the Rights of the Child is that reservations, once in place, tend to persist even where UN monitoring bodies, parliamentary committees and civil society organisations are united in the view that they are unnecessary and incompatible with the object and purpose of the treaty. We start our scrutiny from the standpoint that there should be as few such statements as possible—preferably none—and that where such statements are necessary, the Government should be committed to making the legislative and other changes necessary to enable them to be withdrawn as soon as possible. We ask the Minister to explain whether the Government agree, and if not, what are their reasons. We suggest that there are three relevant questions to ask: first, are the proposals necessary; secondly, are the proposals compatible with the object and purpose of the convention; and, thirdly, are there any other additional matters about the Government's proposals that both Houses should consider? I turn to the particular issues about the reservations and, first, to the heading: ""Special schools and parental choice; Right to education (Article 24)"," which is dealt with in our report at paragraphs 33 to 46. That is a sensitive issue. The committee understands why the Government feel it necessary to enter a reservation and an interpretative declaration to make clear their understanding that a commitment to inclusive education is not incompatible with the continued existence of special schools. However, like the EHRC, we are concerned that the scope of the reservation and declaration may send a confused message to people with disabilities about the purpose and intention of the Government's position. I know that my noble friend Lady Thomas of Winchester has particular concerns about that, and we ask the Minister to confirm that the Government do not intend to dilute the strong statutory presumption in favour of mainstream education for children with special educational needs. We also seek confirmation that the purpose is simply to clarify that nothing in the convention requires the UK to work towards the eventual elimination of special schools. The EHRC has pointed out that a number of other countries with broadly similar approaches to the education of disabled children and which operate both special and mainstream schools, including Australia, New Zealand and Germany, have felt such declarations and reservations to be unnecessary. That is because they interpret Article 24 to require the progressive realisation of an inclusive education system. For example, Germany has not expressed a reservation in relation to Article 24 despite the fact that fewer than 16 per cent of disabled children in Germany experience inclusive schooling. The Equality Commission for Northern Ireland points out that the Education Minister in Northern Ireland has stated that the convention should be ratified without the interpretive declaration and reservation on education for disabled children. The Northern Ireland commission does not consider that the proposed reservation is necessary, based on the wording of Article 24, which provides that, ""reasonable accommodation of the individual's requirements"," must be provided. We look to the Minister to explain the reasons for the Government's insistence on both a declaration and a reservation in respect of Article 24, displaying what the EHRC describes as, ""an unnecessary and disproportionate degree of cautiousness"." I turn to the heading: ""Service in the Armed Forces: Work and employment (Article 27)"." As the Minister explained, the Government intend to make a reservation excluding the application of the convention as regards admission into or service in any of the naval, military or air forces of the Crown. So far, no other EU party to the convention has made such a reservation. In the JCHR's view, the existing exemption in the Disability Discrimination Act is incompatible with the convention. We have reiterated at paragraph 57 our recommendation that it should be reconsidered in the Equality Bill. Given the breadth of the proposed reservation, seeking to remove a major public authority from basic provision on non-discrimination in access to employment, we consider that it is open to challenge as being incompatible with the object and purpose of the convention. The EHRC believes that the Armed Forces exemption from the Disability Discrimination Act 1995 should be lifted in line with the lifting of the previous exemptions for the police and fire services; that recruitment should be based on assessments of individual merit, rather than on the basis of stereotype or prejudice; and that an independent review exercise should be carried out to determine the risk to the Armed Forces' operational effectiveness if the exemption is lifted. The Minister's response, in his letter to the EHRC of 23 March, contends that a direct comparison cannot be drawn between the police or fire services and serving in the Armed Forces. In the words of the right honourable John Hutton MP: ""There are distinct differences, not least in the unique physical and mental demands placed on our Armed Forces working for prolonged periods in difficult and stressful situations in arduous terrain"." For the same reason, the Minister rejected the EHRC's request for an independent review, which he described as potentially "dangerous". As the noble Baroness, Lady Gould, may recall, the MoD used to use similar arguments to justify excluding women from protection against sex discrimination, until EC law came to the rescue. Members of the Armed Forces are now protected by the employment provisions of the main anti-discrimination enactments, except in the case of the Disability Discrimination Act and the age regulations. It is wholly disproportionate to exclude everyone from protection against disability discrimination throughout the Armed Forces. It is regrettable that the Equality Bill, published yesterday, fails to remove the existing exemption. On the contrary, paragraph 4 of Schedule 9, in volume II, maintains blatant discrimination on the face of the Bill. In the case of women and transsexuals, it must be shown that an otherwise discriminatory requirement is a, ""proportionate means of ensuring the combat effectiveness of the armed forces"." By contrast, no such proof or safeguard applies. We hope that Parliament, if the Government do not do so, will amend this provision during the passage of the Bill. It is extraordinary that someone might be injured in war on behalf of the Crown but that, in theory, the provision allows blanket discrimination against them if they are disabled from doing jobs in the Armed Forces that have nothing to do with operational requirements. We ask the Minister to agree to comply with the EHRC's request to see the evidence taken into account by officials in formulating the decision to maintain the reservation, as has been done by the right honourable Ed Balls MP in relation to the reservation for special schools. We also ask the Government to accept the JCHR's recommendation in paragraph 57 to at least keep any reservation under review and to reconsider its necessity after six months of Royal Assent being granted to the Equality Bill. We very much hope, however, that Parliament will boot the provision out altogether, or produce a more moderate exception. I move on to immigration and liberty of movement. I appreciate that the Minister is having to answer for the MoD and the Home Office, which are not his departments, and is doing the best he can; I sympathise. We have expressed our regret at the lack of clarity in the Explanatory Memorandum in respect of the implications of the proposed reservation on liberty of movement for the requirements of the convention. The breadth of the proposed reservation and its purpose is entirely unclear. We are disappointed in the elastic text of the proposed reservation, which confirms our earlier concern that the Home Office is seeking catch-all protection for any policy relating to immigration and nationality against the full application of the rights recognised by the convention. We point out at paragraph 63 that the Government's proposal is nearly identical to a similar reservation to Article 22 of the rights of the child convention which has recently been removed, and, in paragraph 64, that nothing in the convention would grant additional rights to people with disabilities who enter or remain in the UK. We are concerned in paragraph 68 that the Government are pursuing a broad, general reservation relating to immigration control without providing an adequate explanation for its necessity or justification for a reservation of such breadth. We regard it as incompatible with the object and purpose of the convention, and call on the Government to abandon it. It is regrettable that the Government have not accepted the recommendation to mirror the proportion of reservation made by Australia on ratification. Noble Lords should note that Australia is not noted for having an open-door immigration policy, but it has recognised the rights of persons with disabilities to liberty of movement, the freedom to choose their residence and to nationality on an equal basis with others. It has further declared that: ""Australia … declares its understanding that the convention does not create a right for a person to enter or remain in a country of which he or she is not a national, nor impact on Australia’s health requirements for non-nationals seeking to enter or remain in Australia, where these requirements are based on legitimate, objective and reasonable criteria"." Schedule 3(4) to the Equality Bill contains a completely blanket power to discriminate against disabled people as regards immigration control. Again, it is to be hoped that it will be amended during the passage of the Bill if the Home Office cannot be persuaded to emulate Australia. We ask the Minister or the Home Office to explain now or hereafter why a similar approach to that of Australia is unacceptable and for a clear analysis of why the Government consider the reservation necessary and compatible, and to give examples and evidence to support the continuing need for it. Lastly, I refer to Article 12(4) on the review of equal recognition of benefit appointees. As we have heard today, the Government rightly accept that the domestic law on benefits is incompatible with the convention because currently there is no review system for Department for Work and Pensions appointees—persons appointed to claim and collect benefits on behalf of another person due to that person’s lack of physical or mental capacity. In paragraph 78, the JCHR welcomes the Government’s recognition that the existing treatment of benefit appointees is incompatible with the requirements of the convention, and we agree that without any change to the current provisions, a reservation is necessary. However, in paragraph 79 we recommend that the Government should publish details of their proposal for a new review mechanism for benefit appointees together with any necessary legislative changes, and a timetable for reform, without delay. We also recommend that the Government should publish their plans for consultation and that the Department for Work and Pensions should consult with disabled people and their organisations. The Government’s proposals would be scrutinised for compatibility with the convention and should be designed to facilitate removal of the proposed reservation. It is good to hear that that is likely to happen. However, if legislative changes are needed to implement the Government’s plans to create a system of review for benefit appointees, we recommend that they consider making appropriate amendments to the Welfare Reform Bill, and once more we call on the Minister to respond fully to these recommendations and indicate whether the Government are minded to amend in that way. I apologise for the length of my remarks. The fact that it is necessary to raise so many important questions and to seek a detailed and informed government response in this short and rushed debate in the Moses Room is eloquent testimony to the need for a proper system of parliamentary scrutiny of treaty-making, as I said at the outset. We hope that the Minister will respond fully because it is the last chance for the House and, I dare say, both Houses, to call the Government to account on ratification.