This section focuses on the process through which laws are developed and reviewed. The process, like the substance of the law in question, should comply with the principles. Laws may be analyzed and evaluated for their impact on persons with disabilities both at the time of their development, and later as part of a law reform initiative or assessment of their effectiveness. This section deals with the issues raised by either kind of process, with a particular emphasis on research and public involvement.
Applying the Principles to Step 2
The process for developing or reviewing laws and policies is often complex and multi-layered, and will differ depending on the particular issue or the level of government involved. This process will have a significant effect on the final shape of the law. Because persons with disabilities are often marginalized, their perspectives and experiences may be missing from this process, so that the law does not appropriately take them into account. This is especially the case for laws of general application, where the potential effects on persons with disabilities are not immediately apparent. It is essential that the principles be applied to the process of evaluating and reviewing laws, as well as to the substance of those laws.
The overriding principle at stake here is that of promoting social inclusion and participation, ensuring that persons with disabilities have the opportunity to be involved as citizens in the development of laws and policies. The principle of recognizing that we all live in society highlights that participation in the development of laws and institutions is a responsibility as well as a right for persons with disabilities, as it is for others, and the principle of autonomy and independence highlights the importance for persons with disabilities of the right to make choices on issues that affect them, not only in their day to day lives, but at a broader societal level. Implicit in the principle of dignity and worth is respect for the value of the experiences and perspectives of persons with disabilities, indicating that these experiences and perspectives should be sought out, included in the process, and meaningfully considered. As well, this principle requires that the processes through which persons with disabilities are included should embody respect for their contributions. Finally, the principle of responding to diversity emphasizes that in the law development or reform process, a wide variety of voices should be heard from, including the range of experiences and opinions within the disability community, and that needs associated with differences in abilities or other characteristics should be acknowledged and accommodated.
QUESTIONS FOR CONSIDERATION IN APPLYING THIS STEP
Has research been carried out to determine how persons with disabilities may be affected by the (prospective) law, and to ensure understanding of the particular circumstances of those persons with disabilities who will be affected?
Is the law based on current research and evidence regarding the needs and circumstances of persons with disabilities, so as to avoid reliance on ableist assumptions, attitudes and stereotypes?
Are persons with disabilities directly involved and integrally included in developing or reviewing the law?
Have steps been taken to ensure that a wide range of persons with disabilities and the organizations that represent them have been informed about and had the opportunity to be meaningfully consulted in the development or review of this law? Have efforts been made to reach out to persons with different disabilities, as well as persons with disabilities who are of different ages, socio-economic status, racial or ethnic identities, creeds, sexual orientations, places of residence, or other aspects of diversity?
Have steps been taken to ensure that all stages of public consultation are accessible to persons with disabilities, within the requirements of the Ontario Human Rights Code and the Accessibility for Ontarians with Disabilities Act?
Have steps been taken to ensure that all stages of public consultation are accessible to persons with disabilities who may face barriers because of their low-income, caregiving responsibilities, newcomer status, geographic area of residence or other issues?
Is the process through which persons with disabilities are involved respectful of their contributions and mindful of their circumstances and experiences?
Have the perspectives and concerns shared by persons with disabilities been meaningfully considered in shaping the outcomes?
Have the analyses and decisions made throughout the development or review process been documented?
APPLYING THE FRAMEWORK: EXAMPLE OF THE RELATIONSHIP OF THE PRINCIPLES TO LEGISLATIVE DEVELOPMENT
Participation in the Development of the Convention on the Rights of Persons with Disabilities
The adoption of the Convention on the Rights of Persons with Disabilities by the United Nations General Assembly on December 13, 2006 was a major step forward for the human rights for persons with disabilities around the world. Although the actual process of negotiation was unusually rapid, commencing only in 2001, persons with disabilities had long been pressing for such a convention. The participation of civil society in the development of this convention was unprecedented, with over 400 representatives attending some of the later meetings. The Expert Working Group that transformed proposals into a comprehensive draft Convention was comprised of representatives of government and civil society, working together on an equal basis. One commentator noted that the process truly reflected the disability rights slogan, “nothing about us without us”. The extensive participation of persons with disabilities in the development of the Convention is evident in the content of the Convention, for example in its practical focus on the challenges and requirements of persons with disabilities in their interaction with society, its broad and inclusive definition of disability, and its focus on disability as a human rights rather than a social welfare issue. In this way, the process for the development of the Convention not only embodied the principle of social inclusion and participation, but also highlighted how respect for this principle can assist in fulfilling the other principles.
See D. MacKay, “The United Nations Convention on the Rights of Persons with Disabilities”, 34 Syracuse Journal of International Law 323
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