Date: 27 July 2021
What constitutes a Disabled Persons Organisation under the United Nations Convention on the Rights of Persons with Disabilities.
To: Voice of Vision Impairment (https://www.vvi.ie)
From: Michael Lynn S.C. and Philip Reynor Solicitor: Eversheds Sutherland
- VVI Concerns
- Ireland and the CRPD
- Optional Protocol to the CRPD
- Key provisions of the CRPD in respect of DPOs: Articles 4(3) and 35(4)
- What is a ‘Disabled Persons Organisation’?
- The scope of Article 4(3)
- Article 33
- Articles 4 and 33 as linked with other provisions of the CRPD
- Voice of Vision Impairment (‘VVI’) is a voluntary all-Ireland organisation established to campaign for the needs and rights of disabled people, with particular experience in, and focus on, the area of persons with a visual impairment (‘VIPs’). VVI was set up specifically as a national Disabled Persons Organisation (‘DPO’) in line with the Convention on the Rights of Persons with Disabilities (‘CRPD’) in July 2019.
- We use the phrase “disabled people” rather than “people with disabilities,” as the former reflects the ‘social model’ of disability rather than the so-called ‘medical model’. The social model has as its basis that disability is caused by the way society is organised, rather than by a person’s impairment or difference. It looks at ways of removing barriers that restrict life choices for disabled people, so enabling them to be independent and equal in society. The so-called medical model categorises people as disabled because they have an impairment or difference, which may or may not be receptive to medical or other treatment. Many disabled rights activists believe this medical model focuses on impairment rather than need, creating low expectations that impede the achievement of independence, choice and control.
- Ireland is due to publish its first State Report on its implementation of the CRPD this year. It published a draft report for the purpose of consultation on 3rd December 2020. Several organisations, including VVI, which describe themselves as national DPOs have come together to work as a coalition on a shadow report.
- VVI has raised a query in relation to what constitutes a DPO under the provisions of the CRPD, specifically with regard to the provision of services to disabled persons, and what role should a DPO play in policy making?
- VVI would like a legal opinion on the interpretation of a DPO under the CRPD.
- DPOs play a central role under the CRPD and, as the authority on disability, should be considered as the only representative organisations when it comes to disability.
- Organisations of disabled people (i.e. DPOs) can only be those that are led, directed and governed by disabled people. A clear majority of the membership of a DPO should be recruited from among disabled people themselves.
- The membership of a DPO must be open to anyone from their designated impairment grouping(s) and, importantly, at least half of a DPO’s employees should be disabled.
- The CRPD clearly establishes that DPOs must be afforded the opportunity to participate and, in that regard, should not only be closely consulted but must also be actively involved and prioritised by States parties as the only representative organisations.
- It is particularly important from the perspective of participation, that the term ‘representative organisation’ in the context of the CRPD is understood to mean a DPO and is not broadened in scope to include non-DPOs (such as service providers).
- The essence of a DPO is that it is composed of disabled persons, and led by them. It is to be distinguished from a service provider. Nor is it simply a campaign group. A DPO is an organisation owned and led by a clear majority of disabled persons, which thereby ensures their full participation, understanding and promotion of their interests.
- Under the CRPD, a DPO has an acknowledged role to play in public consultation and decision-making. This involvement extends to the negotiation, development, and drafting of policy and legislation by States parties. The pooled expertise and collective agency of disabled people is extremely important.
- States parties should systematically and openly approach, consult and involve, in a meaningful and timely manner, DPOs. This requires providing access to all relevant information, including the websites of public bodies, through accessible digital formats and reasonable accommodation when required, such as the provision of sign language interpreters, Easy Read text and plain language, Braille and tactile communication.
- Permanent consultation mechanisms with DPOs should be established, including round tables, participatory dialogues, public hearings, surveys and online consultations, respecting their diversity and autonomy.
- The Optional Protocol is a vital aspect of the CRPD as it provides an important advocacy tool for people concerned with violations of their rights. Despite the Department of Justice and Equality stating in 2015 that Ireland intends “to sign and ratify the Optional Protocol”, this has yet to occur.
- The failure of the Government to ratify the OP-CPRD places a significant barrier to disabled people who wish to complain to the UN if their rights are violated and weakens the effect of the CRPD in Ireland.
III. VVI Concerns
- VVI believes that rights-based organisations and service providers should be kept separate in order to remain objective and avoid conflicts of interest, particularly where there is State funding and/or consultation involved.
- VVI is concerned that the classification ‘DPO’ may be being wrongly extended to service providers who are not DPOs. This may have implications for which organisations should be prioritised by the State as DPOs for the purpose of compliance with the CRPD.
- VVI is concerned that it itself is not being adequately recognised, or appropriately prioritised, as a DPO. Under the CRPD, a DPO has an acknowledged role to play in public consultation and decision-making, so VVI should be facilitated in carrying out such functions. It has provided several examples of the obstacles it can face in contributing to public schemes which impact on VIPs, including the following three.
- (i) VVI was asked in November 2020 if it was interested in being consulted on the design for a new railway station in Waterford. It said that it was, but was then given no role as a service provider was preferred. (ii) VVI has raised five issues in respect of the National Transport Authority’s Bus Connects plan for a re-design of bus routes in the Greater Dublin Area but these, it says, are being ignored. (iii) The Public Participation Network (‘PPN’) is currently one of the few ways that DPOs have of engaging with local authorities. Current PPN guidelines provide that all members are equal which fails to recognise the special position of DPOs and the support they need. For example, requests to revert the PPN Handbook to original braille have, VVI says, been ignored with deference, instead, being given to the advice of a disability service-provider which claimed such provision was unnecessary.
IV. Ireland and the CRPD
- The CRPD is a landmark legal instrument aimed at ensuring the protection and vindication of the human rights and fundamental freedoms of disabled persons. It forms the cornerstone of an international framework established to guide national policy-making and legislation, and international cooperation, for building an inclusive society, and fostering disability-inclusive development. It has been described as bringing about a paradigm shift such that disabled persons are, as they should be, respected as active subjects with equal rights, capable of taking their own decisions and contributing to society, rather than objects of treatment, charity or other support.
- The aim of the CRPD is to guide and support State parties in the formulation and enforcement of their legislation, strategies, policies and programmes, so as to promote the full empowerment, equality, and inclusion of disabled persons.
- As expanded upon below, one of the principles at the centre of the CRPD is the fundamental role to be given to DPOs, in order to ensure the effective participation of disabled persons in public life. This participation includes not only the involvement of DPOs in the implementation and monitoring of the CRPD but also aims to guarantee that disabled persons are fully and decisively involved in the making of decisions that affect their lives and rights at local, national and international levels. This involvement extends to the negotiation, development, and drafting of policy and legislation by States parties. The pooled expertise and collective agency of disabled people is extremely important.
- The CRPD was adopted by the United Nations in 2006. The European Union acceded to the CRPD through Council Decision 2010/48/EC, formally adopted on 26 November 2009. The instrument of ratification on behalf of the EU was then deposited in December 2010. This was the first occasion that the EU became a party to an international human rights treaty.
- In 2007, Ireland signed the CRPD and shortly thereafter it declared that as a dualist state it was required to be in a position to meet the obligations assumed under the terms of an international agreement before bringing it into force domestically. This meant that in order to ratify the CRPD, Ireland would first have to amend a range of its legislation. With the exception of the passage of the Assisted Decision-Making (Capacity) Act 2015, which has still not been brought into force, little was done in this regard by the government from 2007 to 2018, with the dualist argument being employed to excuse the delay in ratification of the CRPD. In 2015 the Department of Justice and Equality published its ‘Roadmap to Ratification of the United Nations Convention on the Rights of Persons with Disabilities’. This document was produced eight years after the signing of the CRPD by Ireland and identified large volumes of legislative provisions as non- compliant with the CRPD. A Disability (Miscellaneous Provisions) Bill 2016 (‘the 2016 Bill’) was introduced with the purpose of amending a range of legislation so that Ireland could ratify the CRPD.
- On 20 March 2018 – with the vast majority of the required legislative amendments remaining outstanding – Ireland finally ratified the CRPD, even though the 2016 Bill has yet to be enacted. It was amended by the Select Committee on 30 January 2019 and lapsed with the dissolution of the Dáil and Seanad on 14 January 2020. In the Legislation Programme Autumn Session 2020, the status of the Bill was listed as follows: ‘Revised heads in preparation’.
- At long last, a timeline has now been published by the government for the commencement and implementation of another important piece of legislation, the Assisted Decision-Making (Capacity) Act 2015 (as amended), which should now be operational by June 2022.
- Having ratified the CRPD in 2018, Ireland has an obligation to report periodically to the UN on its implementation of the Convention. It must write a report for the CRPD Committee every four years, and answer questions raised by the Committee.
- The Government must also ensure there is an independent organisation to monitor how the CRPD is being put into practice across the country. This is being done by the Irish Human Rights and Equality Commission (‘IHREC’). This process is referred to in the CRPD as the ‘Independent Mechanism’.
- The purpose of the Independent Mechanism is to monitor the operation of the CRPD and write reports to the CRPD Committee. The CRPD provides that disabled people must be a part of this monitoring process as this ensures that a clear picture of the lives of disabled people is presented.
V. Optional Protocol to the CRPD
- The Optional Protocol to the CRPD (GA resolution A/RES/61/106) (‘OP- CRPD’) – which entered into force at the same time as the Convention – establishes two additional mandates for the CRPD Committee:
(i) the receipt and examination of individual complaints; and
(ii) the undertaking of inquiries in the case of reliable evidence of grave and systematic violations of the CRPD.
- This is a vital aspect of the CRPD as it provides an important advocacy tool for people concerned with violations of their rights.
- Complaints may only be communicated against a State party that has ratified or acceded to the OP-CRPD, and only upon the exhaustion of all available and effective domestic remedies. Ratification of the OP-CRPD by Ireland would allow the CRPD Committee to receive, consider and provide its views and recommendations in relation to alleged violations by Ireland of CRPD rights as communicated by disabled persons or those acting on their behalf.
- Despite the Department of Justice and Equality stating in 2015 that Ireland intends “to sign and ratify the Optional Protocol to the Convention on the Rights of Persons with Disabilities at the same time as the Convention itself is being ratified”, this did not occur upon ratification of the CRPD and Ireland has yet to ratify the OP-CRPD (see: ‘Roadmap to Ratification of the United Nations Convention on the Rights of Persons with Disabilities’; at p.13).
- In relation to the decision not to ratify the OP-CRPD, the Department of Justice and Equality stated:
“The matter of signing the optional protocol will be reviewed and further considered following completion of the first reporting cycle under the Convention. Due to the variability and uncertainty of the reporting cycle we are not in a position to give an exact date at this juncture.”
- That report was due to be published two years after the ratification of the CRPD by Ireland, i.e. on 20 April 2020, but remains outstanding to date. The failure of the Government to ratify the OP-CPRD places a significant barrier to disabled people who wish to complain to the UN if their rights are violated and weakens the effect of the CRPD in Ireland.
- Nevertheless, in addition to the Government, the Independent Mechanism and civil society organisations, disabled people and their representative organisations can send their own reports to the CRPD Committee. The CRPD Committee will then examine all these reports and revert to the Government in relation to how it can better protect the rights of disabled people.
VI. Key provisions of the CRPD in respect of DPOs: Articles 4(3) and 35(4)
- Article 4(3) of the CRPD, headed ‘General obligations’, states (emphasis added):
“In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.”
- What constitutes a “representative organization” for the purposes of the CRPD? In order to provide guidance for States, in 2018 the CRPD Committee published General Comment No.7 on the participation of disabled persons, including disabled children, through their representative organisations, in the implementation and monitoring of the Convention. From the outset, when discussing the definition of “representative organizations,” the wording of paragraph 10 of General Comment No.7 (as set out in full in paragraph 49 below) makes it clear that the phrase “representative organizations” is another expression which means “organizations of persons with disabilities” or DPOs. Indeed, this is made clear throughout General Comment No.7 (see, for example, paras. 5 to 12, and 16). By defining a representative organization specifically as a DPO, it clearly intended that DPOs are to be the only representative organisations for the purpose of disability. As such, service providers and other non-DPOs are not to be considered as “representative organizations” for the purposes of the CRPD.
- In addition to providing for consultation with disabled persons through their representative organisations, or DPOs, in the implementation of legislation and policies, Article 33(3) of the CRPD ‘National implementation and monitoring’ provides for participation in monitoring compliance with the CPRD (emphasis added):
“Civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process.”
- It is important to note that Article 33(3) refers to ‘participation’. Similarly, Article 4(3) states that disabled persons should not only be “closely consult[ed]” but also be “actively involve[d]” by States parties “through their representative organisations [i.e. DPOs]”. This implies that “active involvement” is a form of participation that is something more than mere consultation. In this respect and for the avoidance of any doubt, it should be noted that where the CPRD refers to ‘representative organisations’ it is referring to DPOs and not, for example, service providers or other non-DPOs. It is particularly important from the perspective of participation, that the term ‘representative organisation’ in the context of CPRD is understood to mean a DPO only and is not broadened in scope to include non- DPOs.
- Participation in public life, as both a principle and a human right, is well established in a number of international human rights treaties such as Article 21 of the Universal Declaration of Human Rights, Article 5(c) of the International Convention on the Elimination of All Forms of Racial Discrimination, Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women, and Articles 12 and 23(1) of the Convention on the Rights of the Child.
- One of the purposes of General Comment No.7 is to “clarify States parties’ obligations under articles 4(3) and 33(3) and their implementation …”. It outlines in paragraph 7 some of the ways in which States parties can fulfil these obligations, by granting financial or other assistance to DPOs.
- Whilst a UN Committee’s General Comment is only of persuasive force in how one properly interprets the Convention article(s) to which it refers, General Comments are nevertheless of potential importance; a General Comment by the Committee on Economic, Social and Cultural Rights was cited by the Supreme Court in NHV v. Minister for Justice  1 I.R. 246 in its discussion on the right to seek work under the Constitution.
- The CRPD’s Committee’s General Comment No. 7 states that the “effective and meaningful participation of persons with disabilities, through their representative organizations, is … at the heart of the Convention.” It continues:
4. Often, persons with disabilities are not consulted in the decision-making about matters relating to or affecting their lives, with decisions continuing to be made on their behalf. Consultation with persons with disabilities has been acknowledged as important in the last few decades, thanks to the emergence of movements of persons with disabilities demanding recognition of their human rights and their role in determining those rights. The motto “nothing about us without us” resonates with the philosophy and history of the disability rights movement, which relies on the principle of meaningful participation.
5. Persons with disabilities still face significant attitudinal, physical, legal, economic, social and communication barriers to participate in public life. Before the entry into force of the Convention, the views of persons with disabilities were dismissed in favour of those of third-party representatives, such as organizations “for” persons with disabilities.
- Paragraphs 8 and 9 of the General Comment note the shortcomings in many States.
8. The Committee, however, continues to observe an important gap between the goals and the spirit of articles 4(3) and 33(3) and the degree to which they have been implemented. This is due, among other things, to the absence of meaningful consultation with and involvement of persons with disabilities, through their representative organizations, in the development and implementation of policies and programmes.
9. States parties should acknowledge the positive impact on decision-making processes and the necessity of involving and ensuring the participation of persons with disabilities, through their representative organizations, in such processes, notably because of their lived experiences and knowledge of the rights to be implemented. States parties should also consider the general principles of the Convention in all measures taken for its implementation and monitoring, and in advancing the 2030 Agenda for Sustainable Development and its goals.
- When Article 33(3) is read in conjunction with Article 4(3), it becomes clear that disabled people through DPOs must not only be involved in the monitoring framework of Article 33(2), but also the focal point and coordination mechanism of 33(1). In order to facilitate, and make effective, this intended involvement, the State may be obliged to work on building capacity within civil society to ensure that DPOs have the ability to participate meaningfully in the process of implementation and monitoring.
- In relation to the Government’s report to the CRPD Committee, it should involve disabled people through DPOs in assessing how it is carrying out its obligations under the CRPD (see Article 35(4) of the CRPD).
- Moreover, the central place given to DPOs by the CRPD implies that States parties need to be rigorous in determining what organisation is a DPO and what is not. Paragraph 10 of General Comment No. 7 confirms this, stating:
10. The involvement and participation of persons with disabilities through “representative organizations”, or organizations of persons with disabilities, is inherent in both articles 4(3) and 33(3). For proper implementation, it is important for States parties and the relevant stakeholders to define the scope of organizations of persons with disabilities and recognize the different types that often exist.
- In Ireland, the State’s primary response to Articles 4(3) and 33(3) appears to have been the Disability Participation and Consultation Network (‘DPCN’), which neither prioritises DPOs nor even distinguishes them from non-DPOs, and comprises a majority of service providers. This does not seem to give DPOs the sort of preferential position and role that is envisaged by the CRPD. The Committee on the Rights of Persons with Disabilities published its Initial Report under the Convention on the Rights of Persons with Disabilities (Ireland) (December, 2020) which states that “This [DPC] Network is comprised primarily of Disabled Persons Organisations”. While the DPCN does have some DPO members, it appears that a significant majority of its members, including its organising member, Inclusion Ireland, are service providers which would not qualify as DPOs for the purposes of the CRPD. Moreover, there are now over 70 members of the DPCN which renders “close consultation” with DPOs as mandated by Article 4.3 of the CRPD (see para. 57 below) impractical and doubtful.
VII. What is a ‘Disabled Persons Organisation’?
- The essence of a DPO is that it is composed of disabled persons, and led by them. It is to be distinguished from a service provider. Nor is it simply a campaign group. It is an organisation owned and led by disabled persons, which thereby ensures their full participation, understanding and promotion of their interests.
- A distinction is made between an ‘organisation of persons with disabilities’ (i.e. representative organisations or DPOs), and other ‘civil society organisations’ (‘CSO’) and ‘organisations “for” persons with disabilities’ (‘OFPD’).
- Paragraph 11 of General Comment No. 7 refers to some distinguishing characteristics of DPOs. It states (underlining added):
“The Committee considers that organizations of persons with disabilities should be rooted, committed to and fully respect the principles and rights recognized in the Convention. They can only be those that are led, directed and governed by persons with disabilities. A clear majority of their membership should be recruited among persons with disabilities themselves. Organizations of women with disabilities, children with disabilities and persons living with HIV/AIDS are organizations of persons with disabilities under the Convention. Organizations of persons with disabilities have certain characteristic aspects, including the fact that:
(a) They are established predominantly with the aim of collectively acting, expressing, promoting, pursuing and/or defending the rights of persons with disabilities and should be generally recognized as such;
(b) They employ, are represented by, entrust or specifically nominate/appoint persons with disabilities themselves;
(c) They are not affiliated, in the majority of cases, to any political party and are independent from public authorities and any other non-governmental organizations of which they might be part/members of;
(d) They may represent one or more constituencies based on actual or perceived impairment or can be open to membership of all persons with disabilities;
(e) They represent groups of persons with disabilities reflecting the diversity of their backgrounds (in terms of, for example, sex, gender, race, age, or migrant or refugee status). They can include constituencies based on transversal identities (for example, children, women or indigenous people with disabilities) and comprise members with various impairments;
(f) They can be local, national, regional or international in scope;
(g) They can operate as individual organizations, coalitions or cross-disability or umbrella organizations of persons with disabilities, seeking to provide a collaborative and coordinated voice for persons with disabilities in their interactions with, among others, public authorities, international organizations and private entities.
- The phrase “clear majority” in para. 11 implies something more substantial than a simple majority of 51:49. It suggests that a DPO should be structured in such a way that it is clearly led and governed by disabled people, not just technically so. So, the structure taken as a whole must ensure such leadership and governance.
- The CRPD Committee draws a very important distinction between DPOs and other civil society organisations, and emphasises strongly the special place of DPOs, and the priority they should be given in ensuring their participation in proposed legislation and initiatives aimed at assisting disabled persons (emphasis added).
13. Organizations of persons with disabilities should be distinguished from organizations “for” persons with disabilities, which provide services and/or advocate on behalf of persons with disabilities, which, in practice, may result in a conflict of interests in which such organizations prioritize their purpose as private entities over the rights of persons with disabilities. States parties should give particular importance to the views of persons with disabilities, through their representative organizations, support the capacity and empowerment of such organizations and ensure that priority is given to ascertaining their views in decision-making processes.
14. A distinction should also be made between organizations of persons with disabilities and civil society organizations. The term “civil society organization” comprises different kinds of organizations, including research organizations/institutes, organizations of service providers and other private stakeholders. Organizations of persons with disabilities are a specific type of civil society organization. They may be part of a mainstream umbrella civil society organization and/or coalitions that do not necessarily advocate specifically for the rights of persons with disabilities, but can support in mainstreaming their rights in the human rights agenda. In accordance with article 33(3), all civil society organizations, including organizations of persons with disabilities, have a role to play in monitoring the Convention. States parties should give priority to the views of organizations of persons with disabilities when addressing issues related to persons with disabilities, and develop frameworks to request civil society organizations and other stakeholders to consult and involve organizations of persons with disabilities in their work related to the rights enshrined in the Convention and other topics, such as non-discrimination, peace and environmental rights.
VIII. The scope of Article 4(3)
- Article 4(3) requires close consultation and active involvement with disabled persons, through their DPOs, in legal and regulatory frameworks and procedures across all levels and branches of Government. The involvement of DPOs should be a mandatory step prior to the approval of laws, regulations and policies, whether mainstream or disability specific. Therefore, consultations should begin in the early stages and provide an input to the final product in all decision-making processes. Consultations should include organizations representing the wide diversity of disabled persons, at the local, national, regional and international levels (para. 15, Gen. Comm. No. 7).
- The legal obligation of States parties to ensure consultations with DPOs encompasses access to public decision-making spaces and also other areas of research, universal design, partnerships, delegated power and citizen control (para. 17, Gen. Comm. No. 7).
- The phrase “concerning issues relating to persons with disabilities”, as referred to in Article 4(3), covers the full range of legislative, administrative and other measures that may directly or indirectly impact the rights of disabled persons. It includes decision-making processes, such as general laws and the public budget or disability-specific laws, which might have an impact on their lives (para. 18, Gen. Comm. No. 7). In cases of dispute about the direct or indirect impact of the measures under discussion, it falls to the public authorities of the States parties to prove that the issue under discussion would not have a disproportionate effect on disabled persons and, therefore, that no consultation is required (para. 19, Gen. Comm. No. 7).
- To “closely consult with and actively involve” disabled persons through DPOs is an obligation under international human rights law that requires the recognition of every person’s legal capacity to take part in decision-making processes based on their personal autonomy and self-determination (para. 21, Gen. Comm. No. 7). States parties should systematically and openly approach, consult and involve, in a meaningful and timely manner, DPOs. This requires providing access to all relevant information, including the websites of public bodies, through accessible digital formats and reasonable accommodation when required, such as the provision of sign language interpreters, Easy Read text and plain language, Braille and tactile communication. Open consultations provide disabled persons with access to all the spaces of public decision-making, on an equal basis with others, including national funds and all the relevant public decision-making bodies relevant to the implementation and monitoring of the CRPD (para. 22, Gen. Comm. No. 7; see, also, paras. 43, 45 and 46).
Public authorities should give due consideration and priority to the opinions and views of DPOs when addressing issues directly related to disabled persons. Public authorities leading decision-making processes have a duty to inform DPOs of the outcomes of such processes, including an explicit explanation in an understandable format of the findings, considerations and reasoning of decisions on how their views were considered and why (para. 23, Gen. Comm. No. 7; see, also, paras. 47, 48 and 49).
- Public authorities should give due consideration and priority to the opinions and views of DPOs when addressing issues directly related to disabled persons. Public authorities leading decision-making processes have a duty to inform DPOs of the outcomes of such processes, including an explicit explanation in an understandable format of the findings, considerations and reasoning of decisions on how their views were considered and why (para. 23, Gen. Comm. No. 7; see, also, paras. 47, 48 and 49).
- “Full and effective participation”, as set out in Art. 3(c), requires that States parties facilitate participation and consult with disabled persons representing the wide diversity in impairments. By guaranteeing the participation of DPOs, disabled persons will be able to better identify and point out measures that could either advance or hinder their rights, which ultimately yields better outcomes for such decision-making processes. Full and effective participation should be understood as a process, not as an individual one-time event (para. 28, Gen. Comm. No. 7). Full and effective participation can also be a transformative tool for social change, and promote agency and empowerment of individuals. The involvement of DPOs in all forms of decision-making strengthens the ability of disabled persons to advocate and negotiate, and empowers them to more solidly express their views, realize their aspirations and reinforce their united and diverse voices. States parties should ensure the full and effective participation of disabled persons, through their DPOs, as a measure to achieve their inclusion in society and combat discrimination against them. States parties that ensure full and effective participation and engage with DPOs improve transparency and accountability, making them responsive to the requirements of such persons (para. 33, Gen. Comm. No. 7).1
- A range of obligations, such as the provision of funding for DPOs, the appointment of DPO members on representative bodies, and clear structures aimed at ensuring primacy for DPOs are also recommended by the General Comment No. 7 as arising from the CRPD: see paras. 42 to 66.
IX. Article 33
- Article 33 supplements Article 4(3). It requires the involvement of civil society in the monitoring of the State’s compliance with the CRPD and this should include DPOs, which should be heard and recognised through formal mechanisms.
- Article 33(3) implies that States parties should support and fund the strengthening of capacity within civil society, in particular DPOs, to ensure their effective participation in the processes of the independent monitoring frameworks. DPOs should have appropriate resources, including support through independent and self-managed funding, to take part in the independent monitoring frameworks and ensure that reasonable accommodation and accessibility requirements for its membership are met. The support and funding of DPOs in relation to Article 33(3) complements States parties’ obligations under Article 4(3) of the Convention and do not preclude them (para. 39, Gen. Comm. No. 7).
X. Articles 4 and 33 as linked with other provisions of the CRPD
- Articles 4(3) and 33(3) are important as instruments to achieve the obligations arising from other articles in the CRPD. For example, they are key to achieving equality and non-discrimination, as required by Article 5.
- Priority objectives for States parties in implementing the CRPD include the creation of an enabling environment for the establishment and functioning of DPOs, by adopting a policy framework favourable to their establishment and sustained operation. This includes guaranteeing their independence and autonomy from the State, the establishment, implementation of and access to adequate funding mechanisms, including public funding and international cooperation, and the provision of support, including technical assistance, for empowerment and capacity-building. Legislation and policies should be adopted that recognize the right to participation and involvement of DPOs and regulations that establish clear procedures for consultations at all levels of authority and decision-making. This legislative and policy framework should provide for the mandatory realization of public hearings prior to the adoption of decisions, and include provisions requiring clear time frames, accessibility of consultations and an obligation to provide reasonable accommodation and support. This can be done through clear references in laws and other forms of regulations to the participation and selection of representatives from DPOs. There should also be the establishment of permanent consultation mechanisms with DPOs, including round tables, participatory dialogues, public hearings, surveys and online consultations, respecting their diversity and autonomy (see para. 94(b), (e) and (f), Gen. Comm. No. 7).
- Notably, States parties should prohibit discriminatory and other practices by third parties, such as service providers, directly or indirectly interfering with the right of disabled persons, including their DPOs, to be closely consulted and actively involved in decision-making processes related to the Convention (para. 51, Gen Comm. No. 7). Also, States parties should put in place mechanisms to denounce the conflicts of interests of representatives of organizations of disabled people or other stakeholders, to prevent their negative impacts on the autonomy, will and preferences of disabled people (para. 52, Gen. Comm. No. 7). States parties should adopt provisions granting organizations of disabled people seats on, for example, standing committees and/or temporary task forces by giving them the right to nominate working members to these bodies (para. 53, Gen. Comm. No. 7).
- Access to information (Article 21 CRPD) is necessary for DPOs to be involved and to fully participate and freely express their opinions in the monitoring process. Such organizations need to receive the information in accessible formats, including digital formats, and technologies appropriate to all forms of disabilities, in a timely manner and without additional cost. This includes the use of sign languages, Easy Read, plain language and Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of choice by disabled people in official interactions. Sufficiently prior to any consultation, all relevant information, including specific budgetary, statistical and other relevant information necessary for an informed opinion, should be made available (para. 84, Gen. Comm. No. 7).
- It is clear that DPOs are fundamental to the proper implementation of the CRPD. The CRPD Committee has advised extensively on this – as summarised above. Unfortunately, Ireland’s very late ratification of the CRPD, and failure to ratify the Optional Protocol, suggest that the State has not properly addressed how it will introduce the mechanisms that are required to ensure that DPOs play the crucial role that is entrusted to them by the CRPD. It would appear to be an omission that now requires urgent attention in close consultation with VVI and other national DPOs.
- Should VVI have further questions, we will try our best to reply to them.