Carr Gomm responded to the Proposed Disability Commissioner (Scotland) Bill in May 2024.
Carr Gomm supports the general principle of establishing a Disability Commissioner for Scotland to promote and safeguard the rights of disabled people. We believe it is vital for disabled people to have their rights recognised in all areas of life so that they can live their best possible lives. Only then can we address stigma, injustice, loneliness and the isolation people feel within our communities.
Clarification is needed as to the full remit of the Commissioner’s role, the implications of these responsibilities and how the Commissioner will seek to meaningfully involve disabled people. We address how this Bill could be strengthened in our response to the consultation.
Our response
What are Carr Gomm’s views on the proposal to use the definition of disability set out in the Equality Act 2010 – a physical or mental impairment which has a substantial and long-term adverse effect on that person’s ability to carry out normal day-to-day activities?
While the definition of disability as set out in the Equality Act 2010 covers all disabilities, we would prefer the more comprehensive definition of ‘Persons with disabilities’ set out in the UN Convention on the Rights of Persons with Disabilities: ‘UN Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.’[1]
This better reflects disabled people who are better represented by the intellectual or sensory impairment category, for example autistic or deaf people.
What are Carr Gomm’s views on the proposal for the Commissioner to have regard to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and to encourage and observe equal opportunities requirements?
We do not disagree with the proposal for the Commissioner to have regard to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and to encourage and observe equal opportunities requirements. However we would go further than ‘regard’, which is an ambiguous term, to suggest that the Commissioner should actively promote and encourage the observation of the UNCRPD.
We would also encourage the Scottish Government to incorporate the UNCRPD into Scots Law, as has been commenced with the United Nations Convention on the Rights of the Child[2]. This will further strengthen disabled people’s rights in Scotland.
What do you think about the Commissioner’s powers as set out in the Bill?
The Commissioner will have the power to:
- review law, policy and practice relating to the rights of disabled people.
- promote best practice among service providers.
- commission, undertake and publish research on matters relating to the rights of disabled people.
Carr Gomm broadly welcomes these powers as a positive step forward for embedding human rights for disabled people in Scotland, particularly by adding greater requirements on decision-makers and power holders to consider these rights in their own practice.
We hope that a Disability Commissioner will have sufficient regard from and partnership working with law and policy makers to ensure that the outcomes of such reviews and research will be transparently reflected in decision-making. Therefore, we would seek further clarity on how the Disability Commissioner would seek to engage within the existing established processes within the Scottish Parliament, such as the committee structure.
We believe it is important that the rights of disabled people should be considered across all laws, policy and practice in Scotland, not just those overtly pertaining to disabled people. For instance, the Disability Commissioner should be able to review Bills such as the National Care Service as well as housing, environment, planning legislation etc. and reviews should be actively welcomed into these areas. When the rights of disabled people are fully considered across all aspects of decision-making, it contributes to making Scotland a place where all people can live their best possible lives.
Sharing best practices is important to us as an organisation which seeks to share our best practice and learn from others. Therefore, we would ask how service providers would be able to access the research and information collected by the Disability Commissioner.
What do you think of the proposed power to undertake investigations of service providers to ask how they have given effect to the rights, views and interests of disabled people in general or an individual disabled person? This power to investigate will be limited to devolved matters.
We agree with the proposed power to undertake investigations of service providers to ask how they have given effect to the rights, views and interests of disabled people in general or an individual disabled person.
We suggest that this also extends to public bodies whose decisions can have a profound effect on the rights of disabled people, including but not limited to the Scottish Government, Health and Social Care Partnerships and the Care Inspectorate.
Moreover, would the Disability Commissioner be granted Strategic Litigation powers, as is the case for the Children and Young People’s Commissioner? This will help ensure that the rights of disabled people are considered when cases come to a court of law.
We would also seek clarity on how the Scottish Government and/or the Disability Commissioner will communicate to the public when an investigation report comes before the Scottish Parliament, to ensure greater transparency and accountability from those investigating and those being investigated.
The Disability Commissioner (Scotland) Bill makes reference to how the Disability Commissioner ‘may not carry out an investigation… if it would relate to a reserved matter’ (6:4a). Considering the interplay between devolved and reserved matters in the life of people in Scotland, would a Disability Commissioner be able to comment on issues where they pertain to or overlap with reserved matters? If so, this would ensure a greater understanding of how both UK and Scottish legislation impacts the rights of disabled people, and could lead to more informed recommendations on how these rights can be protected.
We understand that the Commissioner will have power to investigate ‘service providers’. However, many people with disabilities are supported by unpaid carers, family members and friends, who can have both a profoundly positive or a negative influence in disabled people’s lives. How would the Commissioner develop their understanding of these support networks in relation to disabled people’s rights and how would they seek to engage with these groups to both research and promote awareness and understanding of the rights of disabled people?
What do you think of the proposals to:
- encourage the involvement of disabled people in the Commissioner’s work?
- use inclusive communication to enable the fullest involvement?
Involvement is incredibly important to Carr Gomm and other person-centred service providers, so we strongly support the implementation of an involvement strategy as detailed in 5(4) of this Bill.
However, any involvement strategy needs sufficient resources behind it to ensure that there is no barrier to disabled people. This will include having a sufficient budget for transport costs, accessible resources, and potentially even budget for a person to pay for a personal assistant to support them to an event.
Inclusive communication is vital and will also need sufficient budget to capture the multiple different ways that people communicate. This is particularly pertinent for people who have profound and complex learning disabilities. A Disability Commissioner would need to find opportunities to reach out to this group of disabled people to ensure that they are involved.
The Bill uses the language of encouragement involvement in 5 (4) and that they will be ‘made aware of’ and ‘consulted’. We believe this language should be strengthened to ‘must actively involve disabled people in the work of the Commissioner’ to ensure there is greater responsibility on the Disability Commissioner to involve disabled people and their representatives, and that involvement is not limited to receiving information. As an example of this, the Disability Commissioner’s Strategic Plan could be co-designed with disabled people.
Do you think there might be any unintended consequences as a result of the Bill’s proposals?
While the establishment of a Disability Commissioner is a very welcome step, Carr Gomm hopes that this will not be seen as the ‘box ticked’ for representing the voice of disabled people and their rights in Scotland. It is the responsibility of all decision-makers to ensure the rights of disabled people are upheld and that the impact of law, policy and practice on disabled people has been properly assessed. Therefore, the Disability Commissioner should be part of a greater, shared ongoing commitment by the Scottish Government and the public sector to uphold the rights of disabled people.
Does Carr Gomm have any other comments you have on the Bill?
The Bill is not clear on the appointment process for the Disability Commissioner. We do request that the Commissioner is someone who has had lived experience and/or someone who has strong experience of promoting the rights of disabled people. We also request that disabled people will be involved in the recruitment and selection of the Commissioner to set a precedent of involvement.
We also seek clarity on how the Disability Commissioner would interact with a Learning Disabilities, Autism and Neurodivergence commissioner if introduced (as proposed in the Learning Disabilities, Autism and Neurodivergence consultation). How will the two commissioners work together on an overlapping remit and strengthen each other’s roles? We also strongly recommend that the Commissioner liaises closely with the Human Rights Commissioners of Scotland, the UK and the UN.
[1] Taken from Article 1 of Convention on the Rights of Persons with Disabilities | OHCHR
[2] Background and introduction to the UNCRC Act – UNCRC (Incorporation) (Scotland) Act 2024 – part 2: statutory guidance – gov.scot (www.gov.scot)
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