From signing Conventions to reality: the path towards Disability Equality



From signing Conventions to reality: the path towards Disability Equality

UN experts, European disability activists, Irish policymakers and officials came together on 19 November in Dublin (Ireland) to discuss legal barriers that still impede equality for persons with disabilities.

The conference “From signing the Disability Rights Convention to achieving equality before the law” was organised by the European Disability Forum and the Disability Federation of Ireland on 19 November. The main messages included:

  1. Equal recognition before the law is at the heart of ensuring the rights of persons with disabilities. Therefore, laws on legal capacity must be aligned with article 12 of the UN Convention on the Rights of Persons with Disabilities, and representatives of the legal system (police, lawyers, judges) must be trained to uphold them.
  2. Persons with disabilities, and their representative organisations, must be closely involved when adapting and implementing laws. Intersectional perspectives must be taken into account.
  3. All work towards equal recognition before the law must affirm the personhood of persons with disabilities. This includes changing perceptions in society and providing clear guidance to governments.

Keynote speeches

Grainne O'Leary, Vice-Chair of the Disability Federation of Ireland speaks next to Yannis Vardakastanis, EDF President

Grainne O’Leary, Vice-Chairperson of the Disability Federation of Ireland, opened the conference by stating that:

  1. The implementation of the UN Convention on the Rights of Persons with Disabilities – and its article 12 – is essential to ensure the equality of persons with disabilities.
  2. A united European disability movement is necessary to advocate for positive change.

Yannis Vardaskanis, President of the European Disability Forum, followed:

  1. Article 12 of the UN Convention on the Rights of Persons with Disabilities was the most difficult to negotiate. However, the disability movement made clear that Article 12 is at the heart of the Convention, as without it, the text would have been very weak.
  2. Equality before the law remains far from being a reality for persons with disabilities, particularly persons with intellectual and psychosocial disabilities. Archaic laws still prevent people from enjoying even the most basic rights, such as voting or having a bank account. They force people into segregated residential institutions, into psychiatric institutions and still allow for forced sterilisation.

He announced that our upcoming Human Rights Report will focus on legal capacity and equal recognition before the law.

Senator Erin McGreenhan spoke in her capacity as representative of the Irish Parliament’s Disability Matters Committee:

  1. She explained that Ireland is amending its law on supported decision-making, bringing Ireland closer to implementing article 12.
  2. She highlighted the importance of ensuring that people’s voices are heard, as lack of direct consultation leads to poverty, lack of support and lack of proper employment.
  3. She pointed out the need for the involvement of persons with disabilities in all areas of decision-making and that the Parliament’s Disability Matters will hold the government accountable.

The United Nations Special Rapporteur on the Rights of Persons with Disabilities, Prof Gerard Quinn, delivered the last keynote through a video message. He remarked that article 12 is closer to the ideal than the outdated laws that still deny the personhood of persons with disabilities. All actors must make significant efforts to ensure the provision of support is aligned with the Convention.

The right to choose and have control

The speeches were followed by Inclusion Ireland’s video “Choice and control in your home”, sharing the voice of self-advocates from Ireland. Self-advocates shared their issues with not being supported to live independently. They shared specific examples such as lack of transport options, no possibility to have friends, no right to love life, or to get married.

They explained they need to be treated as adults, have their own choices, and control their own life.

Equality before the law

A panel discussion followed. The panel moderated by John Dolan, CEO of the Disability Federation, included:

  • Markus Schefer – expert of the UN Committee on the Rights of Persons with Disabilities
  • Niall Brunnell – Principal Officer for Disability Policy, Department of Children, Equality Disability, Integration and Youth
  • Aine Flynn – Director of Supported Decision-Making Service

Side view of the panel with Ainne Flynn on the forefront and Markus Schefer and Niall Brunnel on the background

Markus Schefer highlighted that:

  1. The UN Convention on the Rights of Persons with Disabilities represented a revolution in how to understand and ensure equality before the law.
  2. Implementing Article 12 of the Convention requires research and an evolution of societal norms. There are still issues with current legislative changes, such as mental health laws in Sweden and the UK.
  3. Clearer guidance for authorities and governments is needed to achieve articles 12 and 19.

Niall Brunnell shared challenges in amending the Assisted Decision-Making (Capacity) Act of 2015:

  1. Removing older legislation, guaranteeing transitional arrangements to ensure continuity of support.
  2. Transitioning people between different types of support provision without people falling through the cracks.
  3. The velocity of transition, as the expectation of radical change collides with the reality of incremental change.

Aine Flynn talked about legal capacity and supported decision-making in Ireland:

  1. Changes include removing offensive legal language, abolishing full wardship (guardianship) and removing the prohibition to marry.
  2. The new system will take a “time and issue specific” approach to legal capacity. The Act creates a presumption of capacity where the person must be supported to make their own decisions as far as possible.

A debate ensued where participants raised the following points:

  1. Need to provide guidance and training to actors in the legal system: lawyers, judges, and the police.
  2. Disability organisations are not well-represented in decision-making. When they are involved, they are often ignored and overruled.
  3. Need to have an intersectional approach to equality before the law, especially through the gender perspective.
  4. Need to educate families and support network of persons with disabilities, which may deprive them of their equal rights due to prejudices or fear.

There was a mention to the “situational condition” of equality. For example, in airports, persons with disabilities “suddenly” lose rights and are infantilised due to a lack of training and awareness by staff.

View of Irish advocate speaking

Irish advocates shared issues, including:

  • Lack of involvement of persons with disabilities, especially of survivors of psychiatric abuse.
  • Abuse in the legal system, such as police abuse or forced hospitalisation.

The Situation in Europe

Representatives of organisations of persons with disabilities shared the situation regarding legal capacity in Portugal, Germany, Austria, France and Iceland.

Vera Bonvalot, our Executive Committee member, shared the situation in Portugal where a change of law softened guardianship rules but was never enforced. An added challenge is the Portuguese society’s understanding of persons with disabilities as less capable. This prejudice creates a relatively common removal of legal capacity.

Klaus Lachwitz, our Executive Committee member, explained situation in Germany, where until 1992 people under guardianship were deprived of their legal capacity in all areas. Changes in the law were not in line with article 12 due to over-reliance on the “best interest” concept and were criticised by the UN Committee on the Rights of Persons with Disabilities. A new law will take effect in 2023 that brings further improvements – such as the person having the power to refuse guardians and the prevalence of the person’s decisions. However, there is still a big gap that allows too much leeway to lawyers and guardians. This law is a step forward but is not fully in line with article 12 of the CRPD.

Christina Wurtzinger shared the situation in Austria, where an explicit recommendation of the UN Committee on the Rights of Persons with Disabilities in 2013 led to a review to abandon guardianship laws. Many different stakeholders, including self-advocates under guardianship, were involved in the change. Their inputs were taken into account, and the new law has good parts but also weaknesses. The main aim is to maintain autonomy and support individuals in managing their affairs.

Bernaddette Pilfoy speaks from the panel next to another French representative
French advocates managed to get more rights in 2019, but much remains to be done.

Bernadette Pilloy explained the French legal system, where people with intellectual and psychosocial disabilities are still considered “incapable”. Advocates used the 2019 European Elections to campaign for the right to vote, which was successful. It also led to changes in other areas of life, for example the right to marriage, abortion, contraception or access to parenthood. However, the effort to ensure equal recognition before the law continues and much remains to be done.

Þuríður Harpa Sigurðardóttir, explained that a new law was passed after Iceland ratified the UN Convention on the Rights of Persons with Disabilities. However, the new law confused mental and legal capacity. This leads to a still very high number of people still deprived of legal capacity (1488 for a population of 360,000). The Icelandic Disability Alliance was recently informed that work was initiated to reform the law.

EDF’s Vice President Pat Clarke closed the conference by reaffirming that legal capacity is at the heart of the UN Convention on the Rights of Persons with Disabilities and that archaic law that still impedes the full enjoyment of rights must be removed.

We thank the Government of Ireland and the Disability Federation of Ireland for their support in organising this conference.

Logos of the govermnet of Ireland and DFI

Contact

Marine Uldry – Human Rights Policy Coordinator (marine.uldry@edf-feph.org)

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