As widely reported in the press an online campaign group Disabled People Against Cuts have reported to the UN to raise the grave violations against disabled people in the UK. Many do not understand the procedures surrounding this as it is very complex. The rest of this Blog is written (name supplied) by a guest person who can explain it to those of us who don’t understand it, so we understand how important and ground breaking this really is.
How the complaints mechanism to the CRPD applies.
The CRPD Is an international treaty, an international legal instrument known as a ‘convention’, to which the UK Government is a signatory State and ratified in 2009; therefore ratification means that the UK Government has agreed with the United Nations (UN) to be bound by the terms of this instrument. In addition to ratification of the main instrument the UK Government has also signed the Optional Protocol to the CRPD, (OP) acknowledging that as a State Party to the OP ‘recognises the competence of the Committee on the CRPD to receive and consider communications from or on behalf of individuals or groups of individuals to its jurisdiction who claim to be victims of a violation by that State Party of the provisions of the Convention’.
The Committee for the CRPD is a ‘treaty body’ invested with power to monitor the implementation of the CRPD, within signatory member States. This treaty body constitutes a body of independent experts. As with other UN treaty bodies equipped with complaints mechanisms, the CRPD Committee is not a court with judicial powers; the Optional Protocol to the CRPD provides a quasi-judicial procedure; this means that decisions of the CRPD Committee are not legally enforceable such as domestic court judgments, or some other regional judicial mechanisms (as seen with decisions of the European Court of Human Rights). If a violation is found, the Committee’s views are communicated to the State party involved, which constitute recommendations which need to be implemented. Technically, such recommendations may not be legally binding, however, decisions of the CRPD Committee will be authoritative interpretations of the CRPD, therefore beyond the realm of application within the State party (in this instance the UK Government) involved in a complaint. Decisions will be of great value in the exercise of implementing provisions on the ground in ALL States parties to the CRPD.
Ultimately, the effectiveness of the communications mechanism depends on political will of the State party (here the UK Government) to recognise the Committee’s competence, AND to abide by their decisions. Initially, the use of the communications procedures depends on sufficient awareness of the instrument and the capacity of individuals, organisations of persons with disabilities and Non-governmental Organisations to identify victims, recognise violations and lodge complaints to the Committee in accordance with provisions of the OP. The Committee for the CRPD is already facing great constraints due to few resources and limited time for meetings allocated to them.
Awareness of the OP to the CRPD can be achieved via publication of communications lodged to the CRPD Committee. The CRPD Committee treats all communications confidentially: it is the prerogative of the individual or group of persons or victims of violations, to decide for themselves whether they wish to make their complaint public. It may be their complaint has already been made public as a result of domestic court proceedings. A simple press release when lodging the complaint can help raise awareness of this mechanism and lead others to its utilisation. If this information is being disseminated by a disabled persons’ organisation or non-governmental organisation, or an author of the communication on behalf of the individual or group, it is imperative to obtain their express consent to publicise the case. Additionally, it is possible for the victim(s) to protect their anonymity when making such communication public.
Procedure after registration of the complaint.
Once a complaint has been registered, the case will be transmitted to the UK Government, who will be given an opportunity to provide its observations on the admissibility and merits of the communication. The UK will be given a deadline of six months for its observations on admissibility and merits; two months for the observations on admissibility only. Once the UK Government submits its observations, they are transmitted to the complaint(s) for comments. Once the author’s comments are received, the case can be considered by the Committee.
The whole procedure is carried out in writing: there are no oral hearings. During examination of a communication, the Committee may obtain documentation from other organisations within the UN system or bodies which may be useful in consideration of the communications, provided the Committee can afford each party an opportunity to comment within fixed time limits.
Determination of admissibility and a decision on the merits of the complaint(s) is usually considered simultaneously and may be split at the request of UK Government (if the Government contests admissibility within two months of being communicated the case by the Committee). Any decisions on admissibility and/or the merits are determined within the Committee by a simple majority and transmitted to the author of the complaint and the State party simultaneously.
If the Committee finds that the UK Government has failed in its obligations to the individual or group of individuals, recommendations will be issued to the UK Government for provision of a remedy for the individual /group concerned and the Committee will request a follow up of information within six months. The Committee’s final decision on the merits of a case or of a decision of inadmissibility is posted on the website of the Office of the High Commissioner for Human Rights.
At any point after receiving a communication, and before a determination on the merits is reached, the Committee may transmit an urgently requested consideration to the UK Government. This request is for interim measures to be made, to avoid irreparable damage to the victim(s) of the alleged violation. If the author of a complaint wishes to request the Committee to consider undertaking interim measures, the original complaint should have stated so at the outset, or if the need arises at a later period, an urgent request should be transmitted to the Committee. The risk of irreparable harm must be imminent, real and personal. The UK Government could contest the continued application of interim measures, and on the basis of their explanation or submitted information, interim measures can be withdrawn by the Committee
Follow up to the Committee’s decision.
The UK Government would then be invited to provide information on implementation of the Committee’s views within six months of their decision. At this point in proceedings the Committee shall designate a Special Rapporteur or working group for follow-up, to establish measures to be taken by the UK Government and determine whether effect has been given to the Committee’s views. In the context of follow-up activities, the Special Rapporteur or working group may make contacts and take action appropriate to their mandate, for example with the approval of the Committee and the State party itself, they may make necessary visits to the UK. Follow up activities will be regularly reported to the Committee and to the UN General Assembly, in the Committee’s biennial report.
I hope that this helps my readers understand the complex way UN works and acknowledge those who have worked tirelessly to put disabled peoples concerns forward, in a bid to bring the UK and particularly IDS to justice.