Disabled people will be affected by Brexit in a number of ways, writes Charles Whitmore (Cardiff University). First, there will be no obligation for Britain to match EU rights law, nor a right of appeal to the European Court of Justice. They will also lose EU funds and the European Health Insurance Card, which makes insurance costs less prohibitive.
Overshadowed by the headline issues of trade, the Irish border and preparing for a no-deal scenario, the question of how Brexit may affect the lives of disabled people has been under-discussed by both the media and politicians – particularly at the UK level. Qualifying this impact in specific terms is difficult as it is will depend on the shape of withdrawal, the future relationship with the EU and future policy intentions. It will therefore take years to emerge and unpack. That said, I believe there is cause for concern for at least four reasons: risks to rights, loss of the EU judicial system, the EU’s wider activities in this area and the already considerable impact on disabled people’s wellbeing.
Central to my first point is that the EU has undeniably acted as a vehicle for improving disabled people’s rights. The risk is that Brexit will lead to regression and that Britain will fall behind future EU progress.
In fairness, the UK has long been a proponent of disability rights. It was early in its adoption of legislation with the Chronically Sick and Disabled Persons Act 1970 and the Disability Discrimination Act 1995. However, considering the UK government’s treatment of human rights in the context of Brexit to date and the overarching deregulatory undertones, disabled people’s organisations (DPOs) will not want to take past progress for granted.
Notwithstanding the UK’s own achievements, the EU has been pivotal in enhancing the rights of disabled people in the UK. A major example of this is the Employment Equality Framework Directive of 2000, which went beyond the UK’s 1995 Act by removing the exemption for small companies and by extending coverage to indirect discrimination. The EU also played a significant role in negotiating the United Nations Convention on the Rights of Disabled People (UNCRPD) which now ensures disabled people’s rights are considered across EU policy. Anti-discrimination provisions are also present in other areas of EU law that are not headlined as such. For example, EU law requires providers of transport by air, as well by train, ship, and bus to assist disabled passengers and the bus directive requires wheelchair accessibility. The EU has also introduced accessibility improvements for medicine packaging and recently for public sector websites and apps.
By virtue of the EU Withdrawal Act 2018, these rights will be retained in the immediate aftermath of Brexit, though regression will now be possible. The more likely risk is that the UK may not keep up with improvements it otherwise would have benefited from in the EU. The upcoming EU Accessibility Act’s improvements for a variety of products and services from computers and operating systems, ATMs, smartphones and banking services to e-books are potential casualties.
A second cause for concern relates to the loss of the EU judicial system. The European Court of Justice’s case law has not only improved disabled people’s rights, on occasion it has done so in the context of deficiencies in UK law. The 2008 Coleman case provides an excellent example. The Court decided that the Equality Framework Directive’s protection included discrimination by association, something the UK’s own legislation did not. EU case law has also removed the UK’s £8,500 compensation cap in the 1993 Marshall case and extended the definition of disability to bring it in line with the broader definition of the UNCRPD in the joined 2013 Ring and Werge cases. This was significant because it demonstrated the primacy of the UNCRPD over EU secondary law and contrasts quite sharply with the UK position, where the UNCRPD, although ratified, has not been incorporated, and due to the UK’s dualist system, therefore has no effect on domestic law and cannot be relied on in Court.
Thirdly, the EU provides a variety of initiatives which directly improve disable people’s lives. EU funding in the form of research grants, the European Social Fund, the European Regional Development Fund and Interreg benefit disabled people through socially inclusive employment projects, supporting disabled people’s voices and participation, as well projects to adapt technologies to disabled people’s needs. Crucially, disability rights and accessibility are mainstreamed in the provision of EU funds and more widely in the activities of the EU Commission, as per the European Disability Strategy 2010-2020. Other examples include reciprocal arrangements like the blue badge parking scheme and the European Health Insurance Card (EHIC), allowing disabled people to access healthcare in any EU member state. The loss of EHICs is particularly significant because they cover pre-existing conditions, an expensive feature of private travel insurance which will disproportionately impact disabled people. Retired disabled British citizens in the EU may even see their residency called into question if reciprocal arrangements are not in place by the end of the transition period, which alarmingly, the incumbent UK government has said will not be extended beyond December 2020.
The EU also acts as a forum for academic and civil society knowledge exchange with initiatives like the Academic Network of European Disability Experts, the European Disability Forum (EDF), Age Platform Europe and the Disability High Level Group which all provide essential platforms for academics and civil society organisations to participate in the development of policy.
My final and most important point is that the failure to involve disabled people in the development of Brexit policy has implications for their wellbeing. A written question by Jo Stevens MP showed that UK government had not conducted an impact assessment on the effect of leaving the EU without an agreement on disabled people, despite ongoing concerns around the supply of medicines and medical supplies expressed by the Royal Pharmaceutical Society (also reported in the British Medical Journal). In a workshop we conducted in partnership with Disability Wales and in our wider engagement with DPOs around Brexit, several individuals had extensively stockpiled medical supplies. Many participants spoke of feeling anxious and one individual said this was acute when Brexit was mentioned on the television. Another went as far as saying they felt panic, and many highlighted the lack of engagement, consultation or accessible information on Brexit as being a considerable cause for concern. As a result we have recently published an Easy Read FAQ on Brexit and Disabled People in partnership with Disability Wales (funded by the Legal Education Foundation who also funded this DRUK brief by Professor Anna Lawson), but the amount of accessible materials is still alarmingly small. The uncertainty, coupled with their more acute exposure to Brexit-related risks, affects disabled people’s wellbeing. Indeed, the ‘black dot’ Twitter campaign highlighted that some felt Brexit was putting their lives at risk.
I make an effort to end anything Brexit-related on a positive note, and this narrative differs across the UK. In contrast to the UK government’s relative silence, the Scottish government has openly discussed these risks, and the Human Rights Consortium Scotland has designed Easy Read Brexit materials. The Welsh government has made available a dedicated page on the Preparing Wales website which acknowledges the risk of disproportionate impact. Both devolved nations are actively exploring incorporating the UNCRPD into domestic legislation, which may herald an exciting time for the UK’s varied legal and constitutional landscape.
With the first phase of Brexit almost complete, DPOs will soon want to turn their attention to ensuring that their voice is heard in shaping key elements of the post-Brexit environment, like the elusive Shared Prosperity Fund and the Future Relationship with the EU. Nonetheless, with only an 11-month transition and the prospect of extension already rejected by the UK government, the pace of developments is likely to be challenging.
This post represents the views of the author and not those of the Brexit blog, nor LSE.