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Consultative statement on the ratification of the UN Convention

Consultative statement on the ratification of the UN Convention
on the Rights of Persons with Disabilities
The following document was submitted to the Norwegian Ministry of Labour and Social Inclusion on 30 September 2007


The Norwegian Government appointed in 2002 a legislative committee to draft an anti-discrimination law to protect disabled people from discrimination. The Committee presented a draft statute in 2005.
The civil rights foundation Stop Discrimination was established in 2002 with a single goal – to build up the adequate competence to ensure that disabled people in Norway gets the best and most effective anti-discrimination legislation possible.
Stop Discrimination wellcomed the draft statute, especially the obligation of public and private entities to ensure universal design. But at the same time drawing attention to the fact that requiring universal design is not enough to ensure disabled people access to goods and services, as universal design relates to the physical environment only. The Committee failed to see that most disabled people will experience exclusion in a self-help seciety and will need personal services in an forseeable future.
This is acknowledged in the UN Convention, requiring reasonable accommodation.

To the Ministry of Labour and Social Inclusion
Po Box 8019 Dep
N-0030 Oslo


Consultatitve statement on the ratification of the UN Convention on the Rights of Persons with Disabilities
The civil rights foundation Stop Discrimination has not been invited to provide a consultative statement in the present public inquiry. But since we have special competence on national and international anti-discrimination legislation, we acknowledge that it is of vital importance that our viewpoints are heard.

Stop Discrimination presuppose that Norway in the nearest possible future will ratify both the Convention and the Optional Protocol opening for an individual complaints procedure and we will not enter into any reasoning for this.

As an introduction, Stop Discrimination will emphasise the importance that the UN Convention should already at this point prevent the introduction of new legislation that is contrary to, or does not work in accordance to, the Convention. This we assume is also the viewpoint of the Government. In the following we will therefore answer the question of whether it is necessary to change Norwegian legislation in order to fulfil the requirements of the UN Convention, by reporting on the lack of accordance between the proposed Norwegian antidiscrimination legislation drafted by the Syse commission, and the UN Convention.
Norway must fulfil the requirements of the UN Convention for “reasonable accommodations” Stop Discrimination has on a series of occasions, viz. our consultation paper to the NOU 2005:8 point 4.2; our letter of October 4th to the Ministry for Employment and Inclusion; in a presentation on the meeting of the Ministry’s Dialogue Forum on January 29th, 2007; in a presentation to the “red-green” fraction of the Parliamentary Committee for employment and social affairs on May 16th 2007, where the political leaders of the Ministry were present; as well as in a follow-up E-mail to the State Secretary, Ms Laila Gustavsen answering her questions on May 24th 2007 – raised the issue of the very imperfect additional accommodation requirements in the Syse commission’s draft legislation (hereby called the draft legislation).

Since Norway signed the UN Convention on March 30th this year, this imperfect legal requirement must be viewed in the light of the UN Convention’s Articles which in this field are very specific.

According to the UN Convention Article 2 discrimination is to be understood in this way:
Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;(our underlining)
Whereas “reasonable accommodations” is defined in this way:
“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;
In Article 4, which describes the overall obligations, the Member States are obliged to make use of all relevant means, a requirement which is more specifically described this way in Article 5:
3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. At this point there can be no doubt that the Member States are obliged to ensure reasonable accommodation. Reasonable accommodation is on international level a well known legal term regarding antidiscrimination legislation, which was given its first operationalisation in the Americans with Disabilities Act of 1990, the ADA. It is well known that the ADA has since become a model for antidiscrimination legislation in a number of countries.

In the Norwegian draft legislation a requirement for universal design is made. “Reasonable accommodations” obviously also includes a requirement for universal design, but is a much wider notion of adaptation than is universal design, which is only a strategy for the design of physical conditions.

The Article 9 2 (b) makes obvious what should be expected of public enterprises:
(b) Ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities;
As we have pointed out before, the Syse commission is seriously mistaken when claiming that universal design ensures an equal access to services, except for a small group, in Chapter
“The Commission is aware that universal design thus does not solve the practical difficulties that persons with severe cognitive impairments may experience in different fields of society. The acknowledgement that a small minority”is excluded from” the target group of the commissions accessibility regulation, is a part of the reasoning for the commission’s majority proposal of certain specific rules…”
This is an erroneous inference with fatal consequences.
The commission seems to forget that the primary objective of the Act is to ensure that disabled people get the same right to participation in all areas of society, which definitely includes benefiting from goods and services. In stead of basing themselves on this objective, the commission takes as their point of departure one of several means; that is a certain method of adaptation; universal design. The commission explicitly states that the legal requirement is not including services as such, because:
“Services as such are not part of the physical conditions”.
(Viz. NOU 2005:8, Chapter

Thus the draft legislation does not ensure access to goods and services for disabled people when:

  1. The service cannot be universally designed
    Services necessarily do not consist of physical conditions, for instance personal assistance and information services
  2. The service cannot yet be universally designed
    This may be because of lack of technological solutions or resources. Furthermore there will be need for other solutions pending already existing buildings/material to be universally designed.
  3. The service remains inaccessible with universal design
    Many customers/consumers are dependent on personal services because they cannot operate the self-service systems. They are unable to communicate with dead objects. Some physical conditions cannot be universally designed in a way that becomes practically operable for the customer, for instance electronic queuing systems, or are impractical for the operator to keep updated, like menus or day-to-day promotions.

Thus, the Norwegian draft legislation implies that enterprises are exempted from taking any initiatives at all in the three circumstances illustrated above. Furthermore, the operators are exempted from the duty of adaptation when she is able to prove, and is supported in her claim, that it is too expensive to fulfil the obligation of universal design.

There can therefore be no doubt that the Norwegian draft Act does not fulfil the requirements of the UN Convention. According to the draft Act it is not a case of discrimination if disabled people are denied access to goods and services, even if there are neither practical nor financial reasons for not ensuring reasonable accommodation; that is the draft Act provides an opportunity to deny disabled people reasonable accommodation even when this does not imply an undue burden.
The adaptation requirement in the field of ICT is more restricted in the Ministry of Employment and inclusion proposal, than in the requirements of the UN Convention
In the draft Article on obligations of universal design of ICT, ICT is defined as:
Information and Communication Technology (ICT) means technology and technological systems that are used to create, recreate, exchange, disseminate and publish information in the shape of text, sound, pictures and/or numbers. ICT does not include technology or technological systems, which main function is not the appropriation, storage, conversion, administration, control, presentation, publishing, changing, exchange, transmittance or receiving of information.
The basis of this definition is the Syse commission’s definition of universal design, and as is explicitly stated in the consultation document’s Chapter 4, paragraph one, the objective is accessibility of ICT in public fields of society. Thus it is obvious that ICT systems in work places are not included. The practical consequence of this limitation means that no requirements are made to public or private workplaces to ensure that all ICT-based equipment and all ICT-based systems are designed for all, to ensure that employees with disabilities may use and serve these.

During the last few years we have had many examples that purchases of new ICT systems at workplaces have seriously reduced the ability of among others, visually impaired people to execute their work tasks, first and foremost ordinary work proceedings. It is a paradox that this includes major public workplaces like the Norwegian Labour and Welfare Organisation NAV, and, to a certain degree, the Ministries.

Such a limitation is not in accordance with the requirement of the UN Convention’s Article 9 which is a general accessibility regulation that is to secure participation in all fields of society. Regarding accessibility to ICT it is stated in Article 9 2 (g):
(g) Promote access for persons with disabilities to new information and communications technologies and systems, including the Internet;
Here systems are explicitly mentioned.

By excluding the ICT systems, disabled people in Norway are left with a requirement for individual adaptation, viz. the Labour environment act Chapter 13-5, which has proven to be both insufficient and incapable of solving the major problems arising when the workplace decides to operate an inaccessible system. The individual solutions are never fully sufficient and imply repeatedly a need for individual adaptation and additional burdens for the individual employee.

Stop Discrimination hope that our inputs will lead to disabled people in Norway getting a real and efficient protection against discrimination.

Oslo, 6th September 2007

Sincerely yours,
for Stop Discrimination
Berit Vegheim