Professor Jeremy Cooper, Middlesex University: Europæisk handicappolitik - status og perspektiver.

Resume: Præsentation på engelsk om de positive aspekter af det europæiske samarbejde på det europæiske handicappolitiske område, dels i Europarådet, i den Europæiske Union og i Det Europæiske Handicap Forum - en uafhængig europæisk organisation, der skal repræsentere handicappede og komme i dialog med EU og andre europæiske myndigheder.

Udskrift af talen

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Let me begin by apologizing that I am not going to speak in Danish. But if I try to speak in Danish, nobody would understand me, so I will be giving my presentation in English, and I hope that most of you will be able to understand at least some of what I am saying.

It is a great pleasure for me to be here today at this important occasion, and I feel very privileged as a foreigner to be sharing with you the beginning of Denmark’s contribution to the European Year for People with Disabilities. I think probably I share with you danish people being a citizen of a country which is fairly full of reluctant Europeans in the sense that Europe has always been a controversial sometimes divisive issue in Denmark as it has been in the United Kingdom.

However, my presentation today will be concentrating on the positive aspects of the European movement, and particularly in the context of European disability policy, and I want to take you through a very brief summary of the important developments in European disability policy that offer significant opportunities for the disability movement in all European countries and in particular in Denmark. So in the next 20 minutes I am going to be talking about the developments within the Council of Europe, the developments in the European Union, and also I want to remind you of the important work of the European Disability Forum.

Next slide, please.

So let us begin with the Council of Europe. It is sometimes forgotten that the Council of Europe is a bigger organisation than the European Union, and over 40 European countries are members of the Council of Europe. The Council of Europe has a very important instrument: The European Convention of Human Rights, which is designed to protect - and notice I underline the word protect - protect the civil and political rights of citizens of the member states. And it is enforcable - therefore individuals across the Council of Europe countries including Denmark, who feel that their human rights have been breached, can take legal action individually against their government to protect their rights.

Now, although discrimination on the grounds of disability is protected under the European Convention, it must be linked to the breach of another article of the convention, which means that it is perhaps of limited value in protecting disability rights. However, there are cases which demonstrate the potential of the European Convention to be used to develop the independence and protect the rights of disabled people. For example - to give you just one example - if the special educational needs of a child can only be met by placing that child in a school which takes them away from their family, then that child’s right to family life under article 8 has been breached. But also that child has been discriminated against, because they are, they have a disability, so in that example they can take an action against the public authority on the grounds of breach of their family life, but also on the grounds that they have suffered discrimination. So there is potential under the convention to develop further the rights of disabled people to be treated the same as everybody else.

The second important instrument - legal instrument - of the Council of Europe is the European Social Charter. Now the European Social Charter has been in existence since 1961, but for the first 30 years of its life there was very little in it which could be used to help people with disabilities. Notice that this - unlike the convention - it states the economic and social rights of citizens of the member states of Europe. It does not give individuals the right to take legal action. However, if any of the rights set out in this charter are breached, there is an international monitoring framework with reports written to the Committee of Experts and Ministers under the Council which will criticize governments for failing to recognize the rights of individuals under this charter.

And since 1995 collective complaints can be made to the Council of Europe concerning a breach of this charter. And what that means is that if individuals or disability organisations for example in Denmark believe that your government is not recognizing individual economic and social rights of citizens under the social charter, you can complain to the Committee of Experts, and a report will be written, and this will be placed before the Ministers of Europe for a response from the Danish government. So it is a good tool to use to put pressure on governments, when they are not respecting the rights set out in the charter.

What does the charter say about people with disabilities? Well since, in the revised - this is the new charter which was revised in 1995 - there is a much stronger statement about the rights for people with disabilities than there was in the 1961-charter. And you can see there - article 15 which is the article that deals with the rights of disabled people - specifically talks of the rights of people with disabilities to independence, social integration and participation in the life of the community. And it goes on in detail to explain that independence is the key new development in the disability movement, and this can be used to tie in with the independent living movement as a legal framework to criticize governments who fail to recognize the right to independence of people with disabilities.

Article 15 also says - stresses that education, training for people with disabilities should be not segregated. It should be integrated within the general education and training systems. And it places obligations on the state to be proactive in ensuring that disabled people participate in the life of the community. So if you have a particular issue where you feel disabled people are not being treated equally, this is a strong legal tool through which you can complain to the Council of Europe on behalf of yourselves or the group you are representing.

The only point I would make is that to be bound by article 15 the country has to ratify the treaty, and to the best of my knowledge Denmark has not yet ratified the new article 15, but not many countries have yet. But that is something which hopefully will happen in the coming months or years.

The other important development within the Council of Europe has only just occurred. Only last week the Parliamentary Assembly of the Council of Europe adopted this important statement towards full social inclusion of people with disabilities. And it contains a series of key policy proposals for the European Year of People with Disabilities. This document - now policy of the Council of Europe - therefore Denmark as a member state also has adopted this policy - states that disability discrimination is to be brought explicitly into the core values of the Convention of Europe and the Social Charter.

Secondly it is stated that the Council of Europe is adopting an action program for full social inclusion of people with disabilities across Europe, and thirdly it stated the intention of the Council of Europe to actively participate in the campaign to create a United Nations convention on disability rights, which has already been referred to. So you can see the Council of Europe is moving quite strongly more into the centre ground of the disability rights movement.

Now, moving on then to the other major European forum which creates a legal framework for action we come of course to the European Union which is very much behind the European Year for Disabled People. Now, the European Union has many treaties which collectively make up the laws of the European Union which are binding upon member states including Denmark.

There is an article in The Maastricht treaty - I just want to explain how the Council of Europe links in to the European Union. The treaty of Maastricht in 1994, article 6 of the treaty of Maastricht, stated that the European Union is founded on the principles of liberty, democracy, respect for human rights, the rule of law as guaranteed by the European convention on human rights. So in other words, the European Union has explicitly stated that they are committed to the European convention on human rights that I have just been describing. That gives you the legal connection.

The next major treaty was the treaty of Amsterdam in 1997, which adopted a new article, article 13. And article 13 prohibits discrimination within member states of the European Union on a number of grounds, of which disability is explicitly named as one. So article 13 says that the European Union is committed to prohibiting discrimination against disabled people. Under the European Union’s system the way that an article becomes law in member states is by the member states agreeing a directive, and there was a very important directive - 2000/78/EC - which was agreed by the member states in the year 2000. And under this directive all member states - and therefore Denmark included - have agreed to introduce laws to combat disability discrimination in all sectors of employment, that’s public and private sectors of employment. So like it or not, the Danish government must introduce by within a fixed timeframe laws which make discrimination against disabled people in employment unlawful.

Now, the previous speaker, my colleague Holger Kallehauge, happens to be the Danish member of a committee of experts who are monitoring the ways in which the countries of Europe are implementing this directive, and I gather that so far Denmark has not done very much. However, the deadline - the initial deadline for introducing new laws - is in fact the end of 2003. There seems to be no prospect of Denmark in government introducing anti-discrimination laws by end of 2003, in which case they have the right to ask for a further 3 years in which to do so. But if by 2006 there are no anti-discrimination laws in employment - it’s trouble, trouble for Denmark and trouble for any country which has not introduced such laws. Because ultimately the European Court can punish the states and force them to take action.

The Madrid declaration and the charter of fundamental rights are the other two important areas where the European Union is starting to have an impact.

Next slide please.

This is just a little more detail on the directive that I have just been mentioning. This is the antidiscrimination employment directive. It will combat discrimination in all sectors of employment, it covers all aspects of the employment process, so that means recruitment , advertising for jobs, the terms and conditions of employment, promotion and dismissal. There must be no discrimination on the grounds of disability in any of these areas. And you may say: Well, it is all very well having a law, but will it make much difference. Well, I can tell you that in the UK we have such a law in force since 1995, and there have been well over 10,000 cases taken under this anti-discrimination legislation in the court system. So it has a major impact upon the way in which employers approach the employment of disabled citizens.

It also is including ….. introducing the concept of reasonable accommodation which means that employers must take positive steps to ensure that they do not discriminate within the workplace, and they can’t just say: Well, there is nothing we can do. The law must introduce sanctions, penalties for employers who break the law, and that is the initial deadline that I mentioned [december 2003], and the Committee of Experts is monitoring progress, and we have in the room the Danish expert. He will be monitoring on your behalf, completely independent of the Danish government - it is the Commission Committee of Experts, not a Danish committee of experts. So there you are. That is one important development that the European Union is offering.

Secondly in 2002, there was an important statement by the European Union called the Madrid Declaration, in which they said that this is the formula which they want to underpin the European Union’s approach to disability. Non-discrimination plus positive action equals social inclusion. That’s the formula that has been devised, and although a declaration does not have any legal power, this declaration sets out in detail what it is encouraging European Union countries to prioritize within the disability sphere in the coming years. But they should introduce more legal measures to protect disabled people, develop more independent living services, change cultural attitudes across the number of sectors. Employment discrimination in employment is a central issue, and more support to families where there are people with disabilities should be a priority. So they are the major themes of the Madrid Declaration of the European Union, and it remains to be seen how effective that will be.

The final development I want to mention within the European Union is something called the European Union Charter of Fundamental Rights. Now, this was proclaimed in Nice in December 2000 by Romano Prodi, the president, and article 26 of this charter - the European Union charter - says: “The EU recognizes and respects the rights of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community”. Very similar words to the European Union social charter of the Council of Europe, the same ideas: Independence, integration and participation.

Now, what is important about this is once again bringing together the values of the Council of Europe with the developing values of the European Union. And critically, if you say: So what, what is the value purpose of such declaration. Well, as a quotation from Prodi when this was proclaimed, and you see he says: “In the eyes of the EC, by proclaiming this Charter of Fundamental Rights, the EU institutions have committed themselves to respecting the charter in everything they do and in every policy they promote”. So that is a very strong statement, and all these statements can be used in campaigning, in focusing the commitments of governments, and some of them can actually be used to generate legal change as well.

Lone Dybkjær this morning spoke about the European Convention. So unfortunately these words are all so similar. But the European Convention was the other development I was going to talk about, but she has already discussed that, so I won’t mention that. So that collectively to me is the summary of the European disability policy as it currently stands. I think we can feel positively about it. We heard about the United Nations - the attempt to create a United Nations convention on the rights of people with disabilities, which is fine. It is very good, but we don’t need to look outside Europe to discover that there are already several promising and important developments which are following the same principals as the proposed United Nations convention. So let me just finally remind you of this important organisation the European Disability Forum, which is perhaps the key or one of the key organisations which across Europe is monitoring the implementation of all these various charters. It is an independent trans-European organisation that exists to represent disabled people in dialogue with the EU and other European authorities - being in existence since 1996. Some of you may well be active within this federation forum. Its mission is to promote equal opportunities for disabled people and to ensure disabled citizens’ full access to fundamental and human rights through their active involvement in policy development and implementation in the EU. And you see it has councils in 17 countries, NGO members and a number of groups. This is an important central organisation, which is trying to steer in the right direction. This is the collection of new rights that is contained in the European instruments.

Thank you.

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