Welcome to ERA – Academy of European Law

OK thanks very much. OK so I believe Theresia addressed some of the issues to do with accessibility today, and it´s always better coming from someone from the committee an always better coming from Theresia, so she´s stolen some of my thunder. That said, when I looked at the title first. First I would say hello to everybody and thank you to ERA for inviting me here today. The topic for the paper is accessibility with a focus on reasonable accommodation. And when I first read the title, I suppose I was reminded of one of the first lessons I learned as a law student: a human right is only as useful as your ability to access it. You can have the best laws on education, but if you can’t get in to that school, it’s irrelevant. So any right is only as useful as your ability to get that right or access that right. And in the context of disability rights the necessity to address ability to access, it becomes even more important. What I want to do during this paper is to tell a story of sorts. I have a law student today whose name has been changed for privacy reasons so I’m going to call him Simon. Simon is deaf, he’s from a non-European country, and Simon always wanted to be a lawyer. That was his dream and his vision for himself. Because of the country he grew up in, he was not permitted to be a lawyer. He had to do the only course he was allowed to do because of his abilities: he was very bright and very able, but he was also deaf, so the only choice open to a deaf person in that context was to become a special education teacher, which is what he is qualified to do. As I said, he’s obviously he’s a student of ours now at NUI Galway and I suppose I’m going to highlight issues of accessibility and reasonable accommodation and how they apply to Simon’s siltation and how he’s ended up where he is today and I suppose the elements of the convention to tell that story.

So, to the convention. It’s evident from the convent that concepts of access are given significant weight. They appear in several places throughout the convention. Structurally we see it in the preamble to the convention. We see it twice in the cross-cutting articles, in articles 3-9 and it’s mentioned in several specific substantive articles throughout the convention and several of the implementation measures. It’s an overarching concept that runs through the convention. There’s a lot of academic debate about how all those references relate to one another, and how they relate to the different concepts within the convention. I´m not going to go into those academic debates, which I´m sure you´ll be glad to hear, but what to my mind all these different references highlight is the core importance that this concept has through the convention, and access isn’t about just access to buildings, it’s about accessing fundamental right. You know, Oliver just mentioned (Mr Stanov) and his fight for access to his right, and a right that he still doesn’t access. It’s great to have rights to independent living, but if you can’t actually avail of it, it serves no purpose for that individual. So I suppose it’s looking at that context of accessing the right in question.

Accessibility and the way it’s expressed within the convention has the potential to be one of the more important tools for people with disabilities. It has the potential regardless of how it is described, regardless of where it is described in the convention, it has the potential to prize open access to more substantive rights, like the right to education, like the right to health, like the right to independent living. And in this paper I intend to address a number of issues to see, is that possible. The first is to look at the paradigm shift. I’m not totally wedded to this notion of this medical model versus the social model debate, but I think it has served a very useful purpose and were going to look at that in the context of access. Then were going to look at the concept of reasonable accommodation and maybe look at the limits of the concept of reasonable accommodation. And I think at that point, it is the provisions of accessibility in the convention will kick in. so maybe where the concept of reasonable accommodation leaves off, the provisions of accessibility will step up to the mark. And we’ll look at several references and the various articles addressing the issue of accessibility. I have to say I love this picture and I have to put it up. In contrast to Oliver, I’m not quite as good at the pictures and images. But there’s much discussion of this concept, the paradigm shift, when we consider the convention, and the paradigm shift is absolutely perfectly encapsulated to an extent within article 1 of the convention which is described as the purpose of the convention and it talks about promoting, protecting and ensuring full enjoyment of all human rights by all persons with disabilities. And it then states in the second paragraph that people with disabilities include people with long term physical, mental, intellectual or sensory impairments which in interaction with the various barriers, hinder their full effective participation in society on an equal basis with others. SO accessibility issues and concerns are really raised from the outset, because it is the interaction with society that gives rise to the disability and what we’re talking about in the context of accessibility is maybe breaking down those barriers; the attitudinal barriers, the legal barriers, as well as the physical barriers. So this is the so-called paradigm shift. It´s how disability moves away from the medical model towards the social model of disability.

Traditionally, the medical model of disability within the individual, they can’t speak, they can’t hear, they can’t walk, they can’t do X, Y or Z and everything is about what that person’s inability is in a given situation. The focus is on what is wrong with them, what they have failed to be able to do to effectively participate in society. It’s their fault effectively. Moving how we consider disability to the centre of the human rights agenda has been very, very difficult and has been a very slow process, and the social model to a large extent has been the tool that has let us do that. This is my second picture, as I said: that´s it, were all over with the pictures after this. So what is the alternative view, or the paradigm shift? Well simply put, it’s the move from the medical model of disability to the social model. It means we don’t focus on the individual and what is what is wrong with that individual, but we focus on society and how society puts barriers and it kind of prevents people from participating, and seeks to limit or inhibit their full participation. And I love this picture for two reasons: there are two ways to look at it. The medical model: well, what’s wrong is that the person can’t walk. That’s obviously what’s wrong. The social model: well what’s wrong, why would you put a polling station in an inaccessible venue that is up steps and is going to exclude some members of society. The difference is a difference in viewpoint. One, you look at the persons, figure out what’s wrong with the individual. Two, you look at what’s wrong with society that would do this. And it’s that difference of opinion, or difference of looking at things in that way: it’s not the fact that the person can’t walk, it is the fact that there are steps, is the issue. So this is the paradigm shift. It’s the ideological basis on which the disability rights movement has focused. And it is now the ideological basis behind the convention. So the social model adapts a rights based approach to inclusion, as opposed to the medical model. The social model, literally, it’s a tool to assist us to view disability differently And I think then, as we begin to view disability differently, and as we begin to see the barriers and as we begin to see the way society has built and developed and excluded people with disabilities, we can move to the point that we actually focus not on those issues, but on the human rights issue. What is the human rights issue at hand? Is it a right to education? Well does everybody access that right to education? Not whether it’s a person with a disability accessing a right to education, but just how do citizens of our society access that right to education, disabled or not disabled. So the entire focus on the convention is about, I suppose the underlying focus, the underpinning focus is about ensuring equality and access is one of the tools in the armory of the convention that will seek to enforce that concept. We do this, we also have the traditional I suppose, the old reliable in the European Union context, non-discrimination tool. The tool that has always helped us to push back the barriers of discrimination. And I’m going to suggest that we look at this point at the reasonable accommodation provisions at the first instance to see what they can do, before moving on to the broader access provisions.

On the issue of discrimination or non-discrimination, the tool that we kind of recognize in Europe as one of the tools to break down barriers, the first article were going to look at is Article 2, very dull compared to Oliver’s overheads, so bear with me now. We describe this concept as discrimination at the base of disability, which means distinction, exclusion or restriction on the basis of disability, which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and it includes all forms of discrimination, including denial of reasonable accommodation. I think from a European concept, there are a few things we need to know. Firstly the concept of direct and indirect discrimination is not contained within the convention. So that’s the first big change. We don’t have that concept that we’ve become so familiar with in Europe, of direct discrimination and indirect discrimination. It is just discrimination in the convention. So it’s different from our current understanding of discrimination that is employed by the EU and employed by the framework employment directive, and employed within most national member states’ legislation. Further, the reference here is to “discrimination on the basis of disability”, not disability discrimination, but “on the basis of disability”, which is arguably broader than disability discrimination, because it encompasses and could potentially encompass those people who are disadvantaged because of their association of someone with a disability. Maybe a carer, maybe a parent who has lost opportunities as a result of their association with someone with a disability. The diminished opportunities or discrimination experienced by a carer, this is particularly evident in a context of someone who may be caring for a loved one who is HIV positive. They may suffer discrimination because of their relationship with somebody else. So the failure to provide, and more interestingly, is that the failure to provide reasonable accommodation is directly linked to discrimination, so if you fail to reasonably accommodate, it is discrimination. And that is suggestive of a more expansive understanding of this concept than has been currently used by the European Union.

At the negotiation stage, it does appear that the EU did resist this definition, which is in itself suggestive that the EU realized that this is a more expansive concept and that it was broader and one of the commentators on this suggests that the concern appears to have been that linking the concept of non-discrimination and reasonable accommodation could ensure that reasonable accommodation is somewhat of a Trojan Horse. So if you think about in terms that this is one of the cross-cutting articles that applies to all other articles in the convention, there is this provision to prohibit discrimination which includes a duty and an obligation to reasonably accommodate. In the context of this, that means it applies to health, it applies to education, it applies to transport, it applies to employment, it applies to every other right within the convention. Again, traditionally in Europe, we get reasonable accommodation as a concept and we apply to employment alone, a very narrow focus, and this is suggestive that we need to reconsider how we look at reasonable accommodation and expand it out to cover other concepts and other areas. And you can see the benefit of it, potential benefit of it in areas like education or health or the other provisions. It’s always been contended that the concept of reasonable accommodation is one of the most important tools for people with a disability in the context of non-discrimination. It makes the adjustments for that individual. It is reactive to that individual, and if we consider the types of cases or scenarios that arise, reasonable accommodation can often prise open a certain amount of access issues for people with disabilities. I’m going to go back to my student if I can. In fact, there’s two students who are in the class, both of whom are deaf, but we’re going to just refer to one as an example. So Simon is now studying law in NUI Galway and he is reasonably accommodated within that in how he accesses class material, class discussions and everything that the students are involved in. He is provided either with sign language interpretation or text captioning, depending on the circumstances that arise. So he is accommodated to basically be a full participant within the class. So what is reasonable accommodation? Well, it’s defined within the convention as “the necessary and appropriate modification and adjustment, that does not impose a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”. So it is that reactive response to an individual. If an individual needs a particular accommodation, we will react by providing it. Now, there are obviously some limits written into that. It talks about “as long as it does not impose a disproportionate or undue burden”. So we have reacted. I suppose to go back to the example; we have reacted to Simon’s situation in NUI Galway. We were told from the outset when he was applying that he was deaf, that he would need sign language interpretation, otherwise he would not be able to avail of the class. So we reacted to it. NUI Galway put in place the sign language interpretation. Now, the failure to provide reasonable accommodation is seen as a form of discrimination, and it suggests there is a necessity to take action beyond merely abstaining from discrimination. It requires some positive action by the parties involved. Now, there are built in limitations to the provision. You only have to act insofar as it does not give rise to a disproportionate or an undue burden. So our duty to Simon I suppose is to facilitate his needs in this context, as long as it does not give rise to an undue or disproportionate burden. That’s where our duty would effectively end. I should highlight: sign language interpretation is incredibly expensive, as is text captioning. Both are quite expensive and you’re talking about covering it for an entire year, for all class contact, in that situation. So does this give rise to a disproportionate burden? Well arguably that could be the trigger of your opt out in this context. It could be the point where you say “well actually, if you actually quantify how much it is, over the course of a year” and I think we did, it comes to something like 28-30,000 Euros, so it’s a hugely significant cost. So does that then effectively say that, no that’s a disproportionate burden, that is too much for one student, or two students in this context? So is that enough, so can we stop the reasonable accommodation?

In our situation what actually happened, just to give it: we got notice that the two students were coming and we had the discussion and the assessment about whether or not we could afford to accommodate the students. I work for a very large public sector university, so there are taxpayers’ money behind it, but also possibly some of your money in there too, since we’re in a bailout, but we won’t get into that. The accommodation in question is expensive, of that there is no doubt, but in this particular instance, these two students have come to Ireland with full scholarships and also, in this instance, the university and the awarding body got into negotiations about how we would facilitate this, particular students. I think if the university were left to their own devices, we wouldn’t have accommodated these students. That’s the reality. The very generous benefactor stepped in and took the bulk of the costs. So it has been funded, you’ll be glad to hear not by your tax dollars or tax euros, but by an American benefactor, and in that context we could provide the accommodation. And I suppose, this is where we see the limits of the concept of reasonable accommodation and non-discrimination. This is where we come up against that difficult end, when it comes down to cost. And this is where I think the issue of accessibility, I think that’s the idea where accessibility needs to step in as a concept, when non-discrimination fails, there are these more proactive duties, duties imposed on the state as a whole, that we need to consider. It was in our context it was the particular situation that gave rise to the ability to facilitate these students. That will not always be the case. So I’m suggesting that accessibility provisions step in to provide more long term measures for people, and we’re going to look at it in that context.

The first reference to accessibility is in the preamble and it talks about the importance of accessibility to physical, social, economic, cultural environment, to health, to education, to information and to communication. To enable persons with disabilities to enjoy, fully enjoy all human rights and fundamental freedoms. So it is important across the entire spectrum, and it is just at this point recognizing the importance of it. It’s an enabling provision. It assists in the enjoyment of rights and what’s most interesting I think about, in this is that accessibility is not the goal. Accessibility has never been the goal; it’s not an end in itself. Many articles within the convention affirm the rights of persons with disabilities to participate fully in society, be it, for example, we’ve talked about the right to education. The goal is not the sign language being provided in the classroom. The goal is not text captioning. The goal is that Simon can access education on an equal basis with his peers. That’s the goal. Accessibility is just a step. It is a means to access the goal. And this right, like many other rights require the goal, I suppose the tool of accessibility, accessibility of the built environment, of the transport infrastructure, of information, of communications and so on, further implementation. So all of these rights are only as good as our ability to actually avail of them, to actually access those rights.

So the next one is Article 3. And again, the cross-cutting principles. So we have the principle of non-discrimination, but also within the general principles is the reference to accessibility. I’m sure many of the speakers over the last few days have talked about the cross-cutting articles 1 to 9 and in particular 3 to 9, and how they apply to every other article within the convention. And here we see again the concepts of non-discrimination and accessibility as part of the general principles. And that means they apply at least in an interpretive sense to every other article. And that suggests that accessibility must be a concern of everyone in those areas. If you work in education, if you work in government, if you work in transport, if you work in health, accessibility and non-discrimination are things that you should be thinking about and considering. They are your concerns in that regard. It is a concept that, accessibility is a concept that is both explicit and implicit within many of the articles of the convention. However, if an article is silent on the issue of accessibility, that doesn’t mean you can go whoosh, no accessibility needed in health, we can sit back and relax, because it is in Article 3 and because it is in Article 9, you still have to have your considerations to those issues. Effectively, you have to look at articles 3 to 9 as the prism through which you look at the entire convention. So you read them first and then you read your convention articles to keep bringing those concepts back to the forefront. So where another article fails to mention accessibility, it doesn’t mean that there is no obligation to address that issue. Article 3 also serves as a guide to the meaning of the entire convention, and therefore at all times it is, should be to the forefront of your mind in addressing the issue. Article 4 also refers to it more obliquely, talking about issues such as universal design, so again we refer to every right within the convention, again a cross-cutting article, but I think it’s how, what is most interesting is how broad accessibility has been drawn. One of the examples Oliver gave is “we put a ramp into the building so therefore the ramp is accessible”. Well it’s not just a ramp into the building, it is about assistive technologies, it’s about information and communication technologies, it’s about mobility aids, it’s about devices, it’s much, much broader. It’s is a very broad concept and it is drafted incredibly broadly within the context of the convention, so it is about every element of accessibility within that context. It’s important in this respect, that the obligation that is imposed here is an obligation on the state. So you, as civil servants, or as workers within your state, it is your state’s responsibility. The obligations are imposed upon you, to, in this context undertake and promote research of universal designed goods, to promote research for the development of new technologies, to provide accessible information within your country. These are the duties that are imposed on state parties in this regard. So it’s quite extensive obligations regarding state parties, and this is before we’ve even arrived at article 9, which is the article that addresses accessibility. So, as you can see, it absolutely permeates the entire convention.

So article 9. One of things I find kind of interesting about this article is that it doesn’t really contain a definition of accessibility. Rather, it describes it as necessary to enable people with disabilities to live independently and to participate fully in all aspects of life on an equal basis with others. That’s incredibly broadly drawn, in that sense; I mean it is about equal participation with everybody in every context. That means that it is suggestive that it impacts, and it quite specifically provides, it refers to physical environment, to the transport, to information, to communications, not just in urban life, not just that we have to make all of that available and accessible within the cities, but it also specifically refers to rural areas. So most western democracies, democratic states, well, you find that the public transport system isn’t bad in the cities, it isn’t awful in that context. You drive out where I live in Galway, or out, further out to Connemara, and you’ll find there isn’t a bus service that’s accessible, there isn’t a provision to get people into offices, the offices aren’t’ necessarily accessible. The courthouse is now. But, you know, the more you move out into the periphery, the more excluded a person becomes, and it’s about referring and addressing those issues also.

I’m going to look more through article 9(1), just 9(1) before I kind of look at it in a more and delve into it more substantively. The article goes a lot further than just that. It says that state parties must, shall in fact is the actual word, identify and eliminate any obstacles and barriers to accessibility. That includes the road system, the transport system, the indoor and outdoor facilities, that includes schools, housing, workplaces. It talks about information, communication. It talks about going on then, (). The article is incredibly extensive in and of itself, and it sets out the measures that are going to be necessary to achieve it, and in 9(2) which we’re going to turn our attention to in a moment, it sets out these really detailed measures about what state parties are required to do. Further, the principles apply in the context of all the remaining articles of the convention. It doesn’t define accessibility other than that it’s about equal participation. So it’s not defined in the convention as such, so I spent a few days trying to figure out what accessibility is. What does accessibility actually mean? And I did find a working definition, albeit from a different body: the International Organization For standards, and what they suggest was that accessibility was the usability, now they were talking in the context of products, the usability of a product, service, environment or facility, by people with the widest range of capabilities. So they weren’t specifically focusing on any group, but it’s this idea that a product is usable to as broad a group as possible, and I think that’s a very good definition of accessibility. If you have a system, such as your education system, is it usable to the broadest group possible, regardless of capabilities. Is your education system accessible in that sense? Can people use and avail of it? Is your health system usable and available in that sense? How do we make things usable for all? It implicitly indicates that accessibility is measurable, through usability. And the significant aim of this provision is to ensure that society and society’s systems are useable for people with disabilities. There’s no point in having the greatest technology ever if it is totally inaccessible to a large portion of your society, so it’s about making things open in that sense, and is clear that there’s a huge amount of work to be done in all of our countries in that regard. We know our buildings, our transport systems, our education systems are not fully accessible, and this is a work in progress, and a work that needs to progress.

So the second element of article 9 establishes measures that are necessary to achieve accessibility and is incredibly detailed, and again sets out extensive provisions, and again says the following “state parties shall take appropriate measures”, so they must be developing and promulgating and monitoring standards, they must ensure that private entities offer facilities, providing training for stakeholders, and it goes on, just in case you thought that was enough. No, you also must be providing in buildings and other facilities that are open to the public, signage in braille etc., provide forms of live assistance and intermediaries (this includes sign language interpretation) promote access for persons with disabilities to new information and communications, and again, if when they come out, you must do it in a costly manner: promote design, development and production and distribution of accessible information, huge obligations on state parties. Clearly, I doubt there’s any member state here that can say “we’re totally in compliance right now. We’re there”. So this is clearly a work in progress. It is clearly one of those rights that is not going to be immediately enforceable at this time, but it is one that is going to need progressive reaslisation, as referenced in Article 42 of the convention. So, I suspect this is where things get somewhat more confusing: it’s clear that Article 9 must be progressively realized. It’s clear therefore, like all articles, like all articles that require progressive realization, some elements must be immediately enforceable. I suppose the question then is: which elements? Which elements should be there right now? What should we already be in compliance with, and maybe this is where we do need a guide from the committee, to, I suppose link certain elements to discrimination and say “these parts should be there already, this is what you should be doing”. But nonetheless, there is still “this is the work that should be started, that should be ,kind of, created by member states”. Like all rights that are subject to realisation, some bits are immediately realizable. We should be doing them now. Other bits, we must work towards. What is not, I suppose what is clear is that the duty to progressively realize is not intended to allow states to ignore their duties. It doesn’t mean you can say “I’m getting to that, it’s on the agenda. That’s next week’s meeting topic, we’re getting there, we’re thinking about that next year. We’re going to get there. Oh, absolutely. It’s on the agenda. ” And we’ve seen that from other contexts and cases like autism: Europe v France. If you can’t afford to do it right now, you must be taking active steps to the maximum of your resources to work towards that aim. This isn’t enough to be on the agenda, the process should have started. This is something that should be in train at this moment in time. So, I’ll go back to my example of the two students, currently being accommodated because of a generous benefactor and a persuasive argument made to the university to step in for the remains of the cash. Neither should be a prerequisite to those students achieving their potential. Reasonable accommodation will get us so far, and it’s an incredibly important tool and one that we should not, I suppose I’m not trying to suggest it’s not important, it is an incredibly important tool, but it doesn’t leave a residue of accessibility to those who follow, it reacts to those two individuals and this context, so they’re going to get the benefit. The only residue that is left is that the university have now seen: it’s possible. Actually, having sign language interpreters in class does not disrupt the class, it does not cause problems and actually, the students are great participants in class, so it has left that residue of positivity so there’s a positive attitude at this point I suppose, in that regard. But it doesn’t leave a positive residue in the sense that, other students can step in and say “Oh, there were deaf students there so we can go there”, it’s not going to leave that because we won’t necessarily have the finances for the next student. And I suppose that’s where accessibility comes in: this is a public university, it is providing public education. If you’re not deaf, you can avail of it. If you are deaf, there may be issues, and I suppose the question is: why? That’s what accessibility needs to address. That’s the long term goal.

OK, thank you very much for that.