Judges, Domestic Case Law & the UN CRPD

The World Report on Disability estimates that approximately one in five people in the world have some form of ‘disability’ – a characteristic which is strongly associated with socio-economic disadvantage. 

3 December was the International Day of Persons with Disabilities – an annual event dating back to 1992. The theme for this year was ‘Empowering persons with disabilities and ensuring inclusiveness and equality’.

The World Report on Disability estimates that approximately one in five people in the world have some form of ‘disability’ – a characteristic which is strongly associated with socio-economic disadvantage. All over the world, disabled people are more likely to be out of work than non-disabled people, to have fewer educational qualifications and poorer health outcomes. Disability increases the risk of poverty, and poverty increases the risk of disability. The thematic focus on equality and inclusion is therefore one with enduring relevance to the lives of people with disabilities and their families.

Law plays an important role in tackling this inequality and exclusion. For the past decade, the United Nations Convention on the Rights of Persons with Disabilities (CRPD) – an instrument of international law – has been both a catalyst and guide for legal and other initiatives to enhance the equality and inclusion of disabled people – particularly through legislative reform. To what extent though is the CRPD influencing domestic case law?
This question has attracted surprisingly little systematic attention to date, despite the fact that its importance was signaled in one of the earliest cases decided by the UN Committee on the Rights of Persons with Disabilities – Nyusti v Takács. Nyusti concerned the failure of a private sector bank in Hungary to provide ATM machines that were accessible to blind people. The Hungarian Supreme Court had ruled that equality legislation could not help the blind claimants because they had freely entered into contracts, knowing that the ATM machines were not accessible. The CRPD Committee found Hungary to be in breach of the CRPD for failing to take adequate steps to ensure the accessibility of banking services. The Committee’s recommended that the Hungarian government provide for ‘appropriate and regular training on the scope of the Convention … to judges and other judicial officials in order for them to adjudicate cases in a disability-sensitive manner’ (para 10(2)((b)).

Our 13-jurisdiction study of cases citing the CRPD grapples with the question of how domestic courts are using and interpreting the CRPD. Consistent with Christopher McCrudden’s work on the Convention for the Elimination of Discrimination Against Women, we found that patterns of CRPD usage could not be explained solely, or even primarily, by reference to jurisdictional positions on the monist/dualist spectrum and that, where judges did use the CRPD, they appeared to be employing it with an inward-looking focus on resolving domestic problems, rather than an outward-looking focus on ensuring accurate interpretations consistent with established international law principles for guiding such interpretations. Judgments rarely engaged in substantive  interpretations of CRPD provisions – an omission which risks misunderstanding core CRPD concepts such as ‘reasonable accommodation’ and ‘independent living’ in which the terms ‘accommodation’ and ‘independent’ mean something quite different than a lay reading might suggest. This said, some CRPD provisions did appear to be influential in driving significant case law developments, often involving reinterpretation of domestic constitutional guarantees or other legislation. Notable examples are the CRPD’s broad approach to the meaning of ‘disability’ (Article 1); its classification of an unjustified denial of a ‘reasonable accommodation’ as a form of discrimination (Article 2); and its requirement that people with disabilities be given support to exercise their legal capacity (Article 12).

Reference to interpretations of the CRPD given by courts from other countries seldom appeared in judgments. This may in part be due to the absence of a convenient means of locating such judgments. Or it may simply be a reflection of judicial approaches which are primarily inward-looking. Reference to the CRPD’s impact on, and interpretation through, European legal systems, notably EU law and the European Convention on Human Rights, were more common. The relatively clear enforcement and implementation mechanisms associated with these regional systems provided judges with opportunities to draw on the CRPD when they might otherwise have felt they were barred from doing so – e.g. prior to domestic ratification of the CRPD (Ireland) or where there was a strongly dualist approach coupled with the absence of rights guaranteed in a written constitution (UK).
To conclude, it seems clear that the CRPD is percolating, and very occasionally erupting, into domestic case law. The fact that most judges who use it do not appear to engage in detailed substantive analysis of its meaning creates opportunities and risks: opportunities for innovation and creative legal problem-solving; and risks of interpretations which are blatantly inconsistent with the object and purpose of the CRPD. There are also, of course, significant risks of under-use of the CRPD in situations where it could assist in interpreting ambiguous domestic law.

Courts and judges have an important role to play in empowering persons with disabilities and securing their rights to equality and inclusion. For this to happen, we need more information about what is happening in practice. And we need more initiatives to share relevant case law and the factors that shape it so that judges and others can learn from experiences in different jurisdictions.

This blog was written by Anna Lawson and Lisa Waddington. Anna is Professor of Law and Director of the Centre for Disability Studies, University of Leeds; Lisa Waddington is Professor and European Disability Forum Chair in European Disability Law, Maastricht University. They are the Editors of The UN Convention on the Rights of Persons with Disabilities in Practice: A Comparative Analysis of the Role of Courts.