Thoughts on the crossroads of law, politics and society – for when a tweet isn't enough. This blog contains general information and commentary on legal matters. It is not intended to provide legal advice. This blog discusses the law in England, unless otherwise stated.

Month: July, 2014

What the #LBBill might say and do

So in my earlier post I said a little bit about how the idea for #LBBill emerged and what the process might be. The next question is what the Bill is going to say and do to help achieve #JusticeforLB and all the dudes.

As you’d imagine (it’s a Parliamentary thing after all) there are lots of rules and conventions about Private Members’ Bills. Perhaps the most important is that they are supposed to be ‘resource neutral’ – in other words, backbench MPs shouldn’t propose new laws that are going to cost the state money to implement.

This is an important factor in deciding what we ask for in our Bill – we have to be confident that what we call for will not cost more than it saves. This is why some of the key people in the #JusticeforLB coalition are the academics and researchers who are proving that community support for disabled people is less expensive to the state that institutionalisation (I heart Chris Hatton and everyone else wot is good wiv numbers).

I want to acknowledge that there has been a vast amount of work done on what the law should say in relation to independent living for disabled people. The late Lord (Jack) Ashley repeatedly introduced Bills which would have created massive progress in the rights of disabled people, sadly without success. More recently Neil Crowther and a group of others have done fantastic work on what a comprehensive plan to make independent living a reality would look like, under the banner of ‘Access to Living‘. Please check out what Neil and others are proposing – it seems to me precisely what is needed to make independent living a reality.

Back to #LBBill – my view is that to stand the best chance of becoming law, Private Members’ Bills need to be as simple as possible. The more they contain, the more there is for opponents to take aim at. As all good things come in threes, my very provisional view is that the #LBBill might contain the following:

1. A requirement that any placement for a disabled person is the most appropriate available to them. This would mirror the requirement already in section 22C(5) of the Children Act 1989 for placements of ‘looked after’ children. In deciding what was the ‘most appropriate’ placement, the Bill would specify a list of factors which the local authority or NHS body has to consider and the weight to be given to each of them. These factors would include the wishes and feelings of the disabled person and their family, the need to keep people in their local area, the need to live as part of the community and so on. This would be a specific duty enforceable in court – so a disabled person or a family member could bring a judicial review claim to get the placement decision quashed if they could show that the public body had not taken account of all the factors or had reached an unreasonable decision as to what the ‘most appropriate’ placement would be.

2. A requirement that any placement of a disabled person in a residential setting would be subject to the following:
a. the agreement of the disabled person, if they are over 16 and have capacity to decide where they live
b. the agreement of a person with parental responsibility, if the person is under 16
c. approval by the Court of Protection that the placement is in the person’s best interests, if they are over 16 and lack capacity to make the decision as to where they live
d. approval by the Family Division that the placement is in the person’s best interests, if they are a child and there is no person other than the local authority who has parental responsibility

It would seem likely that these hurdles would make public bodies much more reluctant to push for residential placements – coupled with the fact that they would have to argue that such a placement would be the ‘most appropriate’ available, which would be difficult given the factors which will be set out to govern this decision.

Important questions have already been asked about how these ideas would apply to people ‘sectioned’ under the Mental Health Act or subject to a order of a criminal court. My initial thinking is that although we would have to exempt those placements from the requirements under 2., there is no reason why 1. could not apply to them. Why shouldn’t mental health or criminal court placements also be the ‘most appropriate’ available, in the local area if at all possible and so on?

3. A general duty on each local authority and their NHS partners to increase the level and quantity of community-based support for disabled people – often referred to as a ‘sufficiency duty’. This would mirror the requirement in Article 2 of the Convention on the Rights of Disabled People for the state to take measures to ‘the maximum of its available resources…with a view to achieving progressively the full realization of these rights’. In plain English, this means that public bodies would have to show over time that the opportunities for disabled people in their area to live as a part of their community, rather than apart from it, were increasing not decreasing. See also the requirement under Article 19 CRPD for the state to ‘take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of [the right to live in the community with choices equal to others] and their full inclusion and participation in the community’.

It seems to me that if we could get these requirements into law, we would have taken a significant step towards making the right to community-based living real. We would still need lots more work to flesh out this legal structure – see everything else that the Access to Living Scheme calls for – but we would have the legal framework in place to support this work. Most fundamentally, we would see fewer dudes like Connor Sparrowhawk and Steven Neary being placed away from their communities and families and there would be a new impetus to get those disabled people who remain in residential settings brought home.

In the coming months we will be working up these ideas into a piece of draft legislation. I would like to see the widest possible debate about what #LBBill should say – absolutely none of this is set in stone. Please post your comments here or even better on twitter via #LBBill so everyone can see them.

Something I should have said in my previous post is that the next Private Members’ Bill ballot takes place in June 2015, so we have a reasonable amount of time for debate and discussion before we get down to some serious lobbying to get as many backbench MPs as possible to commit to take the Bill if they win the ballot.



Private Members Bills in general – and #LBBill in particular

Having been banging on all over twitter about the #LBBill, it seems time to write something more substantial about what it can be, how it would work and the plan to make it law. I want to stress at the outset that we are in the very early stages of work on the Bill, nothing is set in stone and all voices and contributions about it are valuable. These are just my thoughts.

Anyone within virtual earshot of my twitter account for the past months will know I’ve been supporting the #JusticeforLB campaign, run by the indefatigable Sara Ryan and George Julian to call for justice in the wake of the avoidable death of Sara’s son Connor in an NHS institution. Words like tragedy and scandal don’t even come close to what happened to Connor – but then you remember that over four in ten people with learning disabilities die prematurely and suddenly his death doesn’t seem so much of a ‘never event’ after all.

The #107days campaign which Sara and George created in the lead up to the anniversary of Connor’s death saw an outpouring of creativity, passion and anger which feels like a watershed moment in the movement for disability rights in the UK. Reading through the days again, the most encouraging thing for me is the way in which disabled people, parents, family members and their allies have come together in one place to ask for them same thing – rights and justice for all the dudes. In fifteen years of campaigning on disability issues I’ve never known anything like it.

And then at the end of #107days Mark Neary (whose case with his son Steven against the London Borough of Hillingdon will go down in history as the point when the Mental Capacity Act fulfilled its promise to empower disabled people and families) came up with a brilliant idea. Mark said: ‘I suggest we start with the fundamental principle that a learning disabled person should be living in their own home, whether that be with their family, on their own with support, in a small group home. It should be their choice. Anyone (especially the State) that thinks otherwise has to prove their case before a court.’

Sounds like a plan, doesn’t it? And better still, it is entirely in agreement with one of the fundamental rights contained in Article 19 of the UN Convention on the Rights of Persons with Disabilities (CRPD) – Article 19, the right to independent living. The CRPD has been ‘ratified’ by the UK, which means the government has made a binding commitment in international law to follow it. But in our system, ratification does not give disabled people an enforceable right to independent living – because for rights in international treaties to become real here, they have to be ‘incorporated’ into our law through an Act of Parliament. As an aside, that is the point of the Human Rights Act 1998 – to incorporate most of the rights in the European Convention on Human Rights into English law and bring those rights home.

So it was Mark’s idea which inspired the proposal for a Private Member’s Bill – a draft law which would be adopted by a backbench MP (not a spokesperson for the government or the opposition) and which could then be introduced to Parliament and become law if it gains enough support. The idea has acquired its own hashtag – #LBBill – please follow it on twitter for all updates.

So what is a Private Member’s Bill? There is a helpful guide on the Parliament website.  In essence, Parliament allows 20 backbench MPs every year to introduce a Bill to propose a change in the law. These Bills will be given at least one Parliamentary debate – whether they proceed any further depends on what support they have from other MPs and in particular from the government. The MPs who get to present Bills are chosen by a ballot – names out of a hat. In reality, only those MPs who are drawn in the top four or five slots have any chance of getting their Bills through, as the others will not get enough Parliamentary time.

So once we have our Bill (see next post for more on its possible content), our job will be to try to get as many backbench MPs as possible to commit to taking it on if they are chosen at the top of the ballot. That’s where the thousands of people supporting #JusticeforLB will play a vital role – to persuade each MP that this is the issue that should matter to them.

The chances of any old Private Members’ Bill getting through Parliament are slim – but this isn’t any old Bill, it’s a Bill for Connor and all the dudes. If there’s a way that the law can be changed through the strength of feeling of the community, why shouldn’t it be us that achieves this?

More to follow in my next post about what changes to the law the Bill might try to make.


PS – just re-read the first line of Mr Justice Peter Jackson’s superb judgment in Neary v Hillingdon; ‘In this case a local authority accepted a young man with disabilities into respite care for a few days at the request of his father and then kept him there for a year. The question is whether this was lawful’. File under ‘Questions to which the answer is absolutely not…’

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