All Being Equal: Disability Discrimination Law in Europe
When Lisa Waddington began her PhD in European disability discrimination law, it was an entirely theoretical field. Now she holds the chair European Disability Forum Chair at Maastricht University. In conversation with Bernadette McSherry.
This is all being equal, an ongoing conversation about equality in society brought to you by the Melbourne Social Equity Institute at the University of Melbourne.
Hello, I’m Bernadette McSherry, the director of the Melbourne Social Equity Institute. The Institute supports research which addresses disadvantage, and we’re very interested in supporting projects that lead to the full participation and inclusion of persons with disability in society. I’m speaking with Professor Lisa Waddington, who is currently visiting the Institute and the University of Melbourne Law School. She holds the chair in European Disability Law at Maastricht University in the Netherlands, and is an expert in European and comparative disability law. She’s here in Australia to find out a bit more about the law and policy relating to disability here. Lisa, can you tell us a bit about disability law and policy in Europe, and how you’ve become interested in research in this field.
Well I started in this field when I began my PhD, which was in the very end of the 1980s. When I applied to the University, it was the European University in Florence, which is in essence a university of the European Union and the European Union member states, a post-graduate University working in the field of law, politics, economics and history. When you apply there you have to put forward your own proposal. You can put forward a proposal on anything, although there is a preference for proposals that relate to European law, policy and comparative European studies. So prior to this I’d been doing a lot of voluntary work with disabled people and disabled peoples’ organisations and I enjoyed this very much. I’d been working in various countries in Europe and also the US. As well as enjoying it I also saw there were a lot of struggles and a lot of issues related to exclusion, and segregation. I hadn’t been working on this in an academic sense at all, I’d been doing my undergraduate studies and there was no possibility to study disability law at that time at all. It’s still quite unusual in Europe actually.
When I came to put forward the PhD proposal I decided to write a proposal relating to what was then the European economic Community and the Disability employment policy. Now I should say that at this time there was absolutely no disability law or policy at the level of the European Economic Community, so in essence I was putting forward a proposal where there was nothing to research, there was no literature to read, there was no policy and no law. This did not deter me and in the end I wrote a PhD which was, in essence, about what I thought the European Economic Community could do in this field and what it should do. Around this time, the early 90s, the Americans with Disabilities Act, so that was also an inspiration. I defended my PhD in 1993 and there was still no policy, hence my PhD was a work of fiction, but in the years since then the European Economic Community, which is now the European Union, certainly has developed quite an advanced and complex disability law and policy. It has, for example, non-discrimination law, which all the member states have to transpose, which led to non-discrimination law in all 28 member states. That was certainly inspired or influenced by the Americans with Disabilities Act. The EU has ratified, it is a party to the UN Convention on the Rights of Persons with Disabilities, and we see disability law and policy influencing many different areas of work that the EU is doing. So back when I started there was nothing to write about, but somehow I managed to create a story that got me a PhD, and now there is a great deal to write about and a great deal to research.
Well it must have been very exciting for you to be able to see that gap, and then decide that somebody needs to be working in it, but also to see how it has developed over the past 20 years. What do you think the future holds for disability law and policy in Europe?
Well I think that the ratification of the UN Convention on the Rights of Persons with Disabilities by the EU is a very significant thing – this is the first UN Human Rights Treaty that the EU has ratified. It wasn’t possible for the EU to become a party to the previous treaties, on the rights of women or the Convention on the Elimination of Racial Discrimination, Convention on the Rights of the Child. International organisations could not become a party to those treaties, but they could become party to the Convention on the Rights of Persons with Disabilities, and the EU pushed for that. The European Commission, which is the body which proposes legislation, for the most part is taking its obligations quite seriously, but there are different departments, different directorates within the Commission and some have much greater awareness of disability law and policy and the need to comply with the convention than others. So I think there’s still a lot of work to do in embedding the UN convention, the philosophy of the convention, within institutions and within all the departments and directorates of the European Union. I think that that is certainly going to be the guiding light for European Union policy in the years to come, and in some areas, the European Union is perhaps doing rather well, and in some areas it still has a lot of work to do. There is always a tension between the European Union and the member states and so the question is who should act – should it be the European Union, or should the member states take responsibility? Now at the moment the UN Committee on the Rights of Persons with Disabilities is considering the state report of the European Union. They considered it in April for the first time and in September they will be giving their advice, their opinion on what the European Union has done and where there is still action that needs to be taken and where the Union is perhaps not complying with the convention. We have to see how the European Union responds to that – there will certainly be criticism, the concluding observation always contains criticism and identifies weaknesses for all states – that was true when Australia submitted its state report and it’s true for every other state. There will certainly be weaknesses identified and we will have to see how the European Union responds to that.
I know, with your research, you work a lot with different organisations and with persons with disabilities. Do you have any sense of what it’s like on the ground in terms of disability advocacy and so on. Is there a perception that your research and different policies have really made a difference in lives of people with disability?
Well you’re right Bernadette, I do do a lot of work with disabled people’s organisations in Europe. I’d like to actually begin by saying that my chair, the chair that I hold, was established in co-operation between the European Disability Forum and Maastricht University. The European Disability Forum is the umbrella organisation of disabled people’s organisations in Europe. So this is actually quite a unique form of collaboration between DPOs and academia. We have a lot of ad hoc projects but establishing a chair is quite an unusual and positive initiative I would say. Now, I’ve already said that there is a lot going in Europe in terms of law and policy, and disabled people’s organisations, certainly at the European level, are very interested in this, and the European Disability Forum has members throughout the member states and many of those are very interested and very engaged in what is happening at the European level. Not all of them, but many. Now, I think the expectation about what the European Union and what the United Nations can do in terms of having a practical and positive impact on the lives of disabled people, is greater than what is possible in reality. It is certainly true, particularly in the new member states, so in Central Europe, the former Communist states, there was a great expectation that when these states joined the Union many positive things would happen with regard to disability and with regard to other areas. Let’s say the European Union hasn’t delivered to the extent that many in these states would have wished for.
Having said that, we can say that the European Union has had certain very positive effects, firstly in terms of having non-discrimination legislation. In the year 2000 the European Union adopted a directive, a kind of European Union law, which required all member states to adopt legislation that prohibits disability discrimination in the field of employment. At that time, only three of the current 28 member states that kind of had legislation, so 25 states have introduced that legislation in response to this European Union directive. The other three member states actually had to improve or strengthen their legislation in some way. So that’s a very noticeable difference. Whilst it certainly hasn’t led to the elimination of discrimination with regards to employment of people with disabilities, unfortunately legislation cannot do that so quickly – it aims to do that but it doesn’t happen overnight – it has certainly led to a change in attitude and a greater awareness amongst disabled people of rights issues and the problems related to discrimination.
The European Union is also important for disabled peoples’ organisations and for projects benefiting disabled people because it’s a source of great funding. It has, relatively speaking, a lot of money, which can be used to fund academic research but also projects designed to stimulate employment, infrastructure projects and projects in many different areas. The potential exists for that money to be used to benefit disabled people, for example, that infrastructure projects are accessible, to encourage member states to move away from institutionalisation and move towards community living – that potential has not been exercised to its fullest extent to date but the European Union and the European Commission, the executive body, is working toward that. I think that has been important and that can become more important, though there is always the risk that the European Union is going to allow member states to spend European Union money on projects that are not accessible, or to build new large scale institutions to house disabled people. That also happens so there needs to be close monitoring and there needs to be efforts and indeed rules to ensure that does not happen.
Lisa you’ve been at the University of Melbourne for a few months now and I was wondering if you’ve formed any opinions as to how the policy and law here in Australia may differ or is similar to the policy that you’ve been studying, and what lessons Australia might learn from the European experience.
What I have noticed about Australia and Australia’s record with regard to human rights generally is that externally, outside of Australia, Australia is a very strong advocate of human rights. Australia ratifies or signs up to human rights treaties rather well, rather conscientiously, and it pushes for recognition of human rights in other countries. But when it comes to what’s happening internally, the attitude seems to be ‘what we’re doing is good enough, we already comply with all these human rights treaties, we don’t really need to do much of anything, we don’t need to change our policies, we don’t need to adopt new laws, because our policies are already fully human right compliant, they’re already, for example, compliant with the Convention on the Rights of Persons with Disabilities and we just need to do some minor changes’. That attitude, I think, is not unusual among Western democracies. They assume that problems are outside of themselves, in other parts of the world, and that what they’re doing is already fully compliant with human rights standards.
In Europe I would say that a lot of states have that attitude as well, but in Europe I would say the big difference is that we have some external courts, some external bodies that exert some influence and some control over human rights policies and human rights initiatives. So, on the one hand we have the European Convention on Human Rights, a human rights treaty that applies practically all European states, all European states have signed up to it, and that is backed up by a European Court of Human Rights. In some cases individuals can go to the European Court of Human Rights and complain that their state has in some way breached their human rights – for example, in some areas on grounds of discrimination against disability, or forced medical treatment, or forced detention in a psychiatric centre. So we have that check, the Court does often hand down decisions that find that states have breached the human rights of individuals, of disabled people, and these court decisions are taken very seriously. At the level of the European Union we also have a court, the Court of Justice of the European Union, and that in some way also exercises a check on the action of member states, and that happens with regards to European Union disability legislation, for example the directive on non discrimination that I mentioned.
So I think a big difference between the situation in Australia and the situation in Europe is that there is an external check in some cases – not in all cases – regarding what states are actually doing with compliance to human rights at the European level, whether it be the European Convention of Human Rights, which is mainly civil and political rights, or the European Union legislation which can concern economic and social rights in some cases. I think, if I were an individual in Australia, I would on the one hand like to see a human rights bill adopted here, along the lines of (or probably better than the European Convention of Human Rights), and I would like to see somebody other than the state, other than the government, controlling whether Australia was actually complying with the conventions that it has signed up to.
Well that’s certainly something that we can aspire towards. Lisa Waddington, thank-you very much for your time today.
Thank-you Bernadette, you’re very welcome.
That’s our show for this week. If you’re in Melbourne, Lisa will be giving a seminar on employment discrimination against people with disabilities this Thursday afternoon – that’s Thursday June 11 at 1pm. Full details of this event are on our website – www.socialequity.unimelb.edu.au.
We’d love to hear your thoughts about the discussion that we’ve had today, or connect with us on Twitter.
All Being Equal is recorded at the Horwood Recording Studio, University of Melbourne. Gavin Nebauer is our audio engineer. Subscribe on iTunes to make sure you never miss an episode. I’m Gary Dickson, and we’ll be back soon.