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Rob’s FAQs on Human Rights and Discrimination

March, 2020

Answering your questions.

This section is designed to answer your questions and clarify key points on the Discrimination Legislation Policy Letter (March 2020). If you have further questions please email the Social Policy Team

Frequently Asked Questions

What are Human Rights?2020-03-09T15:38:54+00:00

Human rights are rights and freedoms that we all have, regardless of race, sex, nationality, ethnicity, language, religion, or any other status.

Our rights have been agreed by the member nations of the United Nations Organisation, which worked together after the second world war, in an effort to ensure that the excesses of those in power could never lead to such atrocities ever happening again.

These Rights and Freedoms were first expressed in a document called “The Universal Declaration of Human Rights”

Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more.  Everyone is entitled to these rights, without discrimination.

Why are human rights relevant to Guernsey?2020-03-06T13:57:27+00:00

Human rights are universal. In other words, they apply to everyone, everywhere.

Until recently, some societies, even some which embrace the principles of democracy, have not paid much attention to human rights.

The need to respect human rights, within peaceful and relatively small and close-knit societies, especially those generally well served with the essentials of life, such as food, education, employment and health services, may not be immediately obvious.

However, the need to develop human rights came out of the atrocities of two World Wars. Those wars came about through governments adopting policies which sought to discriminate against people because of race, religion or beliefs, and even, because of disability. Our own island was occupied as a direct result of a government ideology which did not respect human rights.

In the Guernsey context, human rights are needed because they offer individual islanders the vital possibility to challenge the actions and the policies and laws, established by our government. For the first time, human rights enable such challenges to be ultimately heard by an international court.

Human rights Conventions also lead to domestic legislation which allows citizens to also challenge non-government organisations, and even other citizens, who infringe or abuse rights and freedoms.

Much discrimination, especially that associated with disability, is systemic.

Conventions, such as the Convention on the Rights of Persons with Disabilities, help to remove systemic discrimination and help prevent individual incidences of discrimination.

Human Rights Conventions help ensure that our society will be organised in a way (physically, procedurally and attitudinally) that the need for formal challenges through courts and tribunals should be kept to a minimum.

All societies must have mechanisms that enable such challenges. The States of Guernsey would be failing in its fundamental duty, that of keeping islanders from harm, if these mechanisms are not in place in Guernsey.

To quote Eleanor Roosevelt, one of the architects of the Universal Declaration of Human Rights:

“Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm or office where he works. Such are the places where every man, woman and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerned citizen action to uphold them close to home, we shall look in vain for progress in the larger world.”

What is the difference between “disability” and “impairment”2020-03-06T13:57:23+00:00

Disability is an umbrella term which can have several meanings. The World Health Organisation’s understanding of disability and impairment is widely used and is in line with the Convention on the Rights of Persons with Disabilities:

“Disabilities is an umbrella term, covering impairments, activity limitations, and participation restrictions. An impairment is a problem in body function or structure; an activity limitation is a difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations.

Disability is thus not just a health problem. It is a complex phenomenon, reflecting the interaction between features of a person’s body and features of the society in which he or she lives. Overcoming the difficulties faced by people with disabilities requires interventions to remove environmental and social barriers.”

What is the UN Convention on the Rights of Persons with Disabilities (the Convention)?2020-03-09T15:37:13+00:00

The Convention is a human rights agreement developed by the United Nations Organisation (UN) and adopted by the UN in 2006.

The Convention doesn’t contain any new rights.

The Convention is based on rights and freedoms originally expressed in something called the Universal Declaration of Human Rights which was developed by the UN just after World War 2.

The main point of the Convention is to explain the rights of persons affected by disability in a way which helps governments to organise society so that persons with disabilities are included equally in all aspects of life and so that, for example, persons with disabilities have equal opportunities to; gain an education, go to work, take part in political and social life, and to participate in sporting and cultural activities.

The Convention does not define disability as such and is careful to explain that “disability is an evolving concept”. The Convention rejects charity and medical models of disability and instead explains that disability results from a person’s impairments interacting with physical and environmental barriers.

The Convention is all about removing those barriers.

The Convention is one of the most successful human rights agreements ever developed. More than 185 nations have signed to say they agree with the principles of the Convention. Almost 99% of the population of the world live in countries whose governments have signed the Convention.

Most nations that have signed the Convention have also “ratified” the Convention. “Ratified” means that a nation has made a legal promise to keep to the principles of the Convention and agrees to report to the UN every four years on the progress that has been made.

Ratification gives additional impetus on governments to realise (achieve) the Convention. Ratification is important because it gives persons with disabilities confidence that their governments are committed to realising and respecting their rights.

Because Guernsey is not a member nation of the UN, it cannot sign or ratify the Convention in its own right. Instead, Guernsey can request that the UK’s ratification be extended to the island. In 2013, the States of Guernsey resolved to seek extension of the UK’s ratification “at the earliest appropriate opportunity”

The Convention is based on the following basic principles:

  • Respect for inherent dignity, individual autonomy, including the freedom to make one’s own choices and independence of persons
  • Non-discrimination
  • Full and effective participation and inclusion in society
  • Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity
  • Equality of opportunity
  • Accessibility
  • Equality between men and women
  • Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

Most Articles (clauses) of the Convention can be realised progressively (over time) but there are a few things that governments must take immediate steps to achieve: for example, eliminating discrimination and raising awareness about disability and about the rights of all those affected by disability.

Why is the Convention on the Rights of Persons with Disabilities important to Guernsey?2020-03-06T13:57:14+00:00

The Convention is an important guide, especially to governments, on how the rights and freedoms of persons affected by disability can be realised. The Convention requires governments to realise, promote, protect and monitor these rights.

The Convention is also important because it requires a change in the way that both governments and societies view disability.

It rejects understandings of disability based on pity, charity and medical approaches and, instead, adopts a “social model” (link to FAQ 6) understanding.

The adoption of the social model, together with a focus on realising the rights of persons with disabilities is collectively known as the “human rights approach to disability”, or “human rights model of disability”.

A human rights approach, as explained by the Convention, is seen as essential if persons with disabilities are to be treated equally in dignity and rights and included in all aspects of Guernsey life.

What is the difference between the medical model and Social / Human Rights model of disability?2020-03-06T13:57:06+00:00

Historically, societies have viewed disability in a variety of ways. In the past, many have applied medical and charity approaches to disability.

Societies have tended to assume that disability is all about the person’s mind or body.

The situation was no different in Guernsey. Until relatively recently, islanders with disabilities were often seen as having “something wrong with them” that either needed fixing, or that meant they were helpless and in need of assistance.

For centuries, the islands churches and Parishes provided support for those affected by disability and, in the 20th Century, scores of charities were established on the island to help those affected by disability and chronic health conditions..

Successive Guernsey governments tended to organise services so that persons with disabilities, in particular those with long term disabilities, were segregated and grouped together within various institutions. Some persons with disabilities were segregated from mainstream society throughout their lives.

The big disadvantage of these early models is that, as soon as society groups people together, such groupings tend to lead to exclusion and stereotyping and to attempts by service providers to adopt a “once size fits all” approach.

Historically, disability has often been prejudicially associated with inability and helplessness and the medical and charity models tend to reinforce these stereotypical ideas.

In the 1970s, British disability activists developed a completely new way to view disability. These activists were suggesting that it was society that disabled them, not their impairments.

For example; when suppliers of goods and services only gave information in writing, all persons with visual impairments were disadvantaged, and, when no thought was given by architects and designers as to how wheelchair users would be able to access and use buildings, services and public facilities , it was the architects and designers flawed designs that disabled those with restricted mobility.

The United Nations saw sense in the new Social Model understanding and, in 2004, started to develop the Convention on the Rights of Persons with Disabilities with the Social Model at its core.

The Social Model has developed further through the development of the Convention. The Convention, as a whole, can be said to use a “Human Rights Model” understanding of disability.

In a nutshell, that model recognises the rights and freedoms of individuals (rather than groups),  affected by disability and that

“disability results from interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others”.

Why do we need discrimination legislation?2020-03-06T13:56:20+00:00

Discrimination legislation generally aims to prevent, rather than punish, discrimination.

Legislation is needed both to reduce systemic discrimination and individual incidences of discrimination.

Systemic discrimination includes discriminatory policies, attitudes, procedures and physical features that are built into the way our societies and organisations work.

Legislation tends to change behaviour first but will also help change attitudes over time (Think of the effect of seat belt laws).

Legislation is needed not only to prevent discrimination happening in the first place, but it is also needed to put right incidences of discrimination when they do happen.

Disability discrimination legislation has the effect of requiring employers and service providers to give more thought to removing barriers to participation.

These barriers might prevent; employees from being able to access employment and perform equally, or service users from being able to access a service, or customers being able to use a product because principles of universal design have not been applied.

Why doesn’t Guernsey just adopt UK discrimination legislation?2020-03-06T13:56:16+00:00

The experts employed by the States of Guernsey rejected the UK legislation in the early stages of their review.

In short, the UK’s Equality Act is a large piece of legislation which would be resisted locally on many grounds, such as complexity and ineffectiveness.

The GDA is particularly concerned that parts of the Act relating to disability have not been as effective as hoped.

The GDA is also concerned that the UK law uses a definition of disability which restricts qualification for benefit of the Law to those with “long-term” disabilities.

Additionally, the definition also requires the person to demonstrate “inability” before the matter of discrimination can be considered. The UK definition does not comply with the principles of the Convention which reject medical models and advises that:

“…Persons victimized by disability-based discrimination seeking legal redress should not be burdened by proving that they are “disabled enough” in order to benefit from the protection of the law. Anti-discrimination law that is disability-inclusive seeks to outlaw and prevent a discriminatory act rather than target a defined protected group. In that regard, a broad impairment-related definition of disability is in line with the Convention;”

The UK Act is based on protected characteristics, rather than grounds of discrimination. The GDA believes this does not align easily with the individual approach to disability required to comply with the Convention and which may even reinforce stereotyping.

As Lady Elizabeth Hastings, Australia’s first Disability Discrimination Commissioner said in her review of the first ten years of the Disability Discrimination Act:

 “A large proportion of the pages in the extensive regulatory and guidance materials issued under the Americans with Disabilities Act is taken up with issues of the identification of who is, and is not, a person with a disability. This is not only a misdirection of effort and attention away from the real objective of eliminating discrimination; it suggests that we are talking about a dangerous or a protected species, and could be expected to encourage a reaction from employers and others that the safest thing to do with people with a disability is avoid having to deal with them.”

Why not follow Jersey’s legislation?2020-03-06T13:56:10+00:00

The experts employed by the States of Guernsey rejected the Jersey legislation in the early stages of their review.

The GDA’s own review of the Discrimination (Jersey) Law concludes:

“The disability related provisions of the Discrimination (Jersey) Law, 2013 (the Jersey Law) have been in operation for less than two years and some provisions are not yet in force. Jersey’s definition of disability (a hybrid version of the UK Equality Act definition) employs a restricted medical model approach – an approach that the GDA believes is unique.

It is too early, and there is not yet the case history, to judge the effectiveness of the Jersey Law in practice.

However, it is neither the uniqueness of the definition, nor how untested the Law is, that is of greatest concern to the GDA.

At the heart of our concerns is that the Jersey Law provides inferior legislation on the ground of disability. The Jersey Law does not comply with vital principles of the Convention on the Rights of Persons with Disabilities (the CRPD) and is structurally incapable of challenging all forms of discrimination on the ground of disability, as required by the CRPD.”

The GDA full opinion on the Jersey (Discrimination) Law review can be viewed here

Will discrimination legislation make Guernsey uncompetitive?2020-03-06T13:56:04+00:00

On the contrary, there is plenty of evidence that companies and societies that respect rights and strive for equality of opportunity do better than those that do not.

It should be obvious that in a small island with full employment, it makes sense to enable everyone to participate fully. One independent Canadian study suggests that just by improving access to work for persons with disabilities would bring a permanent improvement in Canada’s Gross Domestic Product of $1.6 billion a year (about 1%).

Suggestions that discrimination legislation may put companies off from moving to Guernsey are seen as unrealistic.

The GDA suggests companies moving to Guernsey are often well versed with both the principles and realities of discrimination legislation.

The existence, or otherwise, of such legislation is unlikely to factor highly, if at all, in a decision to move to, or from, Guernsey.

Other factors, such as; the tax regime, the availability of supporting complimentary services, the standard of communications, transport links, housing, and the availability of other services such as health and education are of more consequence.

However, more logically, a poor reputation for not respecting rights may have a negative effect on the island’s ability to attract and retain the skilled workforce this island needs.

How will discrimination legislation impact on small businesses?2020-03-09T15:34:32+00:00

The proposed legislation will have in-built features of proportionality and reasonableness. No business will be required to do anything that would impose an undue burden.

All businesses will be required to ensure that necessary and appropriate adjustments are made for employees and service users with disabilities. This duty only applies when the employer or service provider is aware of the disability. Very few such adjustments involve anything more than some thought and some procedural changes. Most adjustments cost very little.

All companies will be required to carry out a general review of accessibility. Plenty of time will be allowed to make any changes required.  

This is not onerous or difficult and full guidance will be available. Again, any such changes will not be required if they are judged to be an undue burden.

The public sector and education establishments will be required to produce accessibility plans.

Accessibility is generally a positive and profitable concept. Improving physical access and training staff in how best to serve persons with disabilities will usually result in increased customer satisfaction and improved sales.

Why do we need multi-ground discrimination legislation?2020-03-09T15:33:54+00:00

Sometimes, discrimination happens because of more than one reason and sometimes, those reasons interreact in a unique way.

A woman with disabilities might be discriminated against both because of being female and because of those disabilities.

Sometimes grounds of discrimination intersect. For example, a woman of Muslim faith might experience discrimination that neither a man of Muslim faith nor a woman of no faith might experience.

The Convention understands these principals of multiple and intersecting grounds of discrimination and requires governments to ensure that discrimination legislation is explicitly capable of dealing with these forms of discrimination.

Why does the GDA believe an independent Equality and Rights Organisation (ERO) is important?2020-03-06T13:55:52+00:00

For human rights and freedoms to have effect, everyone must understand them, and everyone must be able to challenge abuses and infringements

EROs generally have three important roles: they promote, protect and monitor rights.

International human rights Conventions require governments to establish mechanisms to take on these roles.

It is vital that an organisation charged with these roles operates independently of government. Especially so in Guernsey, when the States is both the largest employer and the largest provider of services on the island.

EROs usually perform important information, awareness raising and training functions. These services should be available to individuals, businesses and other organisations.

EROs often have a vital role to play in resolving human rights issues, most commonly, issues of discrimination.

Most EROs aim to help the parties to resolve issues without blame. EROs must be impartial – however, their advice will always seek to apply the principles of human rights which generally are not open to compromise.

Until Guernsey establishes co-ordinated mechanisms to implement the Convention (partly now established), as well as independent mechanisms responsible for promoting, protecting and monitoring rights, it will not comply with UN Convention on the Rights of Persons with Disabilities.