Universal Declaration of Human Rights
In the new world order following the Second World War, equality was elevated to a fundamental human right by virtue of the United Nations (UN) Universal Declaration of Human Rights (UDHR)1 which recognises the “equal and inalienable rights of all”2. The UDHR has become a part of the constitutional law of the world community, and, together with the Charter of the United Nations, has achieved the character of a world law superior to all other international instruments and to domestic laws3.
The UK has an obligation to recognise (or continue to recognise) its citizens’ basic rights and freedoms (hereafter referred to as ‘norms’4 ), and to promote these norms by way of ‘progressive measures’, and as such, the enforcement of the UDHR may follow as fast as circumstances permit5.
Strictly speaking, in order to deal with any alleged breaches of the UDHR, the UN has a complaints procedure in place through which organisations or individuals can alert the UN to human rights breaches. If the UN receives a complaint of serious human rights abuses it launches an investigation with the consent of the country involved. A debate may then be held on that country’s human rights abuses and a condemnation issued, if the allegations are upheld. The idea is that, by working with the country involved, the UN can help that country improve its human rights record. Ultimately, if neither the investigation nor the debate resolves the problems a UN resolution may be passed condemning the country’s abuse of human rights6.
Thomas and Sikkink explore the actual impact that these international norms can have on domestic politics and attempt to find links between these norms and changing human rights practices7. Ultimately, it depends on the establishment and sustainability of advocacy networks among domestic and transnational actors who manage to link up to international regimes8, and such an advocacy strategy can potentially help to give those who are silenced by dominant societal and economic structures a voice9. Thomas and Sikkink argue that advocacy networks serve three purposes: moral conscious-raising; mobilising domestic opposition, social movement and non-government organisations, and challenging norm-violating governments, all of which is considered to be a process of socialisation10. Thus, the implementation of norms to particular group characteristics will depend on the effectiveness of the advocacy network for that group.
In the Deaf-World – at least in the UK – there is a vacuum whereby advocacy is piecemeal and fragmented, a fact recognised by the current President of the WFD, Colin Allen, who is concerned that the absence of a united voice for Deaf people and not enough cooperation between Deaf organisations is hampering Deaf people claiming their rights under international law and that the Deaf community does not work as well with other disabled groups as they could in order to build more alliances to campaign on issues stronger together11. Having said that, there are advocacy networks including the BDA, DeafLondon, Spit the Dummy, Stop Changes to Access to Work, the UK Council on Deafness, the Scottish Council on Deafness and the National Union of British Sign Language Interpreters, with evidence to suggest that they are working together to achieve a common purpose, as illustrated by their signatories to a statement of common purpose on deafness and hearing loss to make sure Deaf people have equal access to all aspects of society12, and so it appears that the tide may be turning.
The first Article of the UDHR proclaims, “all human beings are born free and equal in dignity and rights”13 and the preamble stipulates that “all members of the human family” have “equal and inalienable rights”14. Article 2 further states:
“Everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national, or social origin, property, birth or other status.”15
Before proceeding to consider whether the UDHR has any use to the Deaf-World, it is worth noting what legal effect, if any, the UDHR has on domestic law, as the mere fact that a state has accepted certain international obligations in the field of human rights does not automatically imply that those obligations have binding domestic effect. According to Hannum, the UK adheres to a dualist conception of the relationship between international and domestic law, and the British courts have consistently held that ratified treaties, such as the UDHR, do not form part of the domestic law of the UK16, with case law rejecting the UDHR as a source of law, such as Alexander v Wallington General Commissioners and Inland Revenue Commissioners17. Nonetheless, Hannum acknowledges that rules of customary international law will automatically form part of the common law in the UK, unless they conflict with existing law18. To all extents and purposes, therefore, the UDHR can be, at most, considered part of domestic common law in the absence of any contrary law, and at the very least, an obligation to promote these rights.
In order to evaluate progress for Deaf people on all these rights, it is proposed to choose a central core of rights, in much the same way as Thomas and Skink19, as it is not possible to evaluate progress on all the rights contained within the UDHR. From the four essential components identified by the WFD: the recognition and use of sign language, bilingual education, access to all areas of society and life, and sign language interpretation20, we can choose a central core of rights as follows: the right to work, to education and to participate in the cultural life of the community. Articles 23, 26 and 27 are what are considered economic, social and cultural rights, and they generally enjoy wider international support but are rarely referred to in discussions of what constitutes customary international law, although there is an argument that some enjoy sufficiently widespread support to be at least candidates for rights recognised under customary international law, in particular, article 23(1): the right to work21.
The right to work
The right to work is enshrined in article 23(1), with everyone entitled to free choice of employment, to just and favourable conditions of work and to protection against unemployment. Lane, Hoffmeister and Bohan suggest that Deaf people’s rights in relation to article 23(1) are violated routinely throughout the world as the absence of education for Deaf children or unsuccessful education deprives them of free choice of employment and thus the means to earn a decent living. Similarly, in post-industrial societies, Deaf people are being left behind as large segments of the workforce develop the skills and knowledge required for positions that process information and deliver technical services. Employer prejudices against Deaf workers and the shortage or absence of interpreters often deprive the Deaf worker of an even chance at a job opening22.
Even at a time of low unemployment, people with severe and profound levels of deafness were four times more likely to be unemployed than the general population23.
The right to education
Article 26(1) of the UDHR states that everyone has the right to education. In the past, Deaf children were not in school and even might have been thought to be uneducable24, a point supported by Lane who states “an educated Deaf person must be something akin to a raree-show”25.
Recent statistics released by the Department of Education suggest that 63.7 percent of deaf children failed to achieve the government benchmark of five GCSEs at grades A* to C, including English and Maths, for the academic year 2013/14, compared with 57.3 percent in 2012/13. In contrast, 43.4 percent of all boys and girls (39.4 percent in 2012/13) failed to achieve that benchmark, a gap of 20.3 percent26.
The Consortium for Research in Deaf Education’s 2014 UK-wide summary report adds that in 2013 there were 1,387.45 full time equivalent Teachers of the Deaf working, a three percent decline from 1,482.2 in 2012, and that only 8.7 percent of these Teachers of the Deaf have a BSL qualification at Level 3 or above27. This suggests that Deaf children are not receiving an education equal to that of their hearing peers, and almost certainly are not receiving a bilingual education, as even Level 3 does not provide the prerequisite level of fluency in the language, with Signature, the award body for Level 3 BSL, describing Level 3 allowing the learner to merely understand and use varied BSL in a range of work and social situations28. In addition, Deaf schools have been progressively closed down and replaced with mainstream provision, with the result that almost all Deaf children have been disadvantaged by being denied access to native BSL29.
The right to participate in the cultural life of the community
There is evidence to suggest that Deaf people do not have access to all areas of society and life. The WFD does not define what is meant by “society and life”, but the Oxford Dictionary defines ‘society’ as a community of people living in a particular country or region and having shared customs, laws, and organisations30, and ‘life’ as a particular type or aspect of human existence31. Thus, it is assumed that the WFD refer to Deaf people’s access to the community and its shared customs, laws and organisations, and their need to exist as human beings.
There is limited evidence on Deaf people’s experiences of crime and criminal justice32. In 1997, when Brennan and Brown’s Equality Before the Law was published, it was the first full report of a research project which explored the extent to which Deaf people have equal access to justice33. The report refers to members of the legal profession, police and court officials being generally unaware of the offence caused to Deaf people by using the term “deaf and dumb”34, the treatment of Deaf people in custody35, ‘gagging’ Deaf people by handcuffing their wrists behind their backs36, and lack of interpreting provision37. Subsequently, in 2000, Harrington and Turner38 raised various issues with regard to how Deaf people are denied full access to the legal system such as the ways in which police behaviour clashes with Deaf culture, the use of audist terminology, and the lack of information given to Deaf people in the absence of an interpreter, among others. There is thus evidence, even when BSL/English interpreters are present that Deaf people are still denied full access to the legal system, and therefore full access to justice, with the Courts not sufficiently aware of the nature of signed language and Deaf culture and the particular circumstances of the Deaf community39.
To compound Deaf people’s lack of access to justice, their access to legal advice also appears rather dire, according to the Equality and Human Rights Commission’s (EHRC) report Responding to Discrimination40, whereby there are additional barriers for Deaf people seeking advice as when they come across a little oasis of advice, there is no guarantee that they can access the advice on hand41. In particular, it is suggested that the advice system of Citizens Advice bureaux, law societies, union sources and private firms of solicitors are often still inaccessible to Deaf people42 further concluded that Deaf people often felt like they were in a battle to be understood by their legal adviser43 and that communication is the “core issue” between the Deaf individual and their legal adviser:
“For deaf people, it centres on lack of ‘deaf-friendliness’ of the contact and the perception that an interpreter is only engaged to help a deaf person, and not to facilitate the work of the lawyer”.44
The Deaf Prison Project45 firmly established that Deaf prisoners suffer a “double sentence”46 in that they face what are in effect additional forms of punishment, and serious issues of inequality of treatment between Deaf and hearing prisoners47. Given that there is a relatively small number of Deaf people held in prison or on remand in the UK, it is most unlikely that any Deaf individual will be placed with others who can communicate with him/her in a signed language. Few prison staff have been trained in BSL either. The result, from a Deaf perspective, is that once imprisoned, and even while awaiting trial, the Deaf person is left to feel extraordinarily isolated and lonely48. Deaf prisoners are at a greater risk of social isolation and less likely to utilise distraction strategies such as watching television or phoning friends or relatives, and communication with prison staff remains a major problem49. Indeed, McCulloch suggests that Deaf people face a partial justice system50.
There is also established case law51 that confirms Deaf individuals cannot serve jury service due to the old adage that if a Deaf individual is accompanied by a BSL/English Interpreter, there would be more than 12 individuals in the jury room making their deliberations. In Re Osman52 Sir Lawrence Verney, Recorder of London, had observed: “It has long been held that it is an incurable irregularity for an independent person to retire with the jury, even though he may take no part in the discussion. An interpreter would be bound to take a part even though not expressing any personal opinion”53. Therefore, Deaf people are not treated equally to non-Deaf individuals who may be asked to serve their public duty.
Deaf BSL users have poorer health which has been attributed to problems accessing health care and communicating with healthcare professionals54, with Deaf people finding it difficult to get help, missing potentially life-threatening health conditions, and offering poor treatment when a diagnosis is made55.
From the above it is clear that Deaf people do not have access to a bilingual education nor do they have access to all areas of life and society, hence their need to look at equality law as a form of redress for this imbalance.
In as much the same guise as the UDHR, if the Government were to recognise Deaf people’s rights in order for them to have access to a bilingual education, access to all areas of society and life and sign language interpretation, the enforcement of it might follow as fast as circumstances should permit, with recognition becoming a standard maxim familiar to all, constantly looked to, constantly laboured for, and though never perfectly attained, constantly spreading and deepening its influence56. Glendon further elaborates stating that the recognition of universal rights and the respect for particular cultures are not irreconcilable as rights emerge from cultures, and cannot be sustained without cultural underpinnings, although to be effective, these rights must become part of each peoples’ way of life57.
- UN General Assembly (UNGA) (10 December 1948) UDHR Resolution 217 A (III) 183rd Session. [↩]
- ibid, preamble. [↩]
- LB Sohn, ‘The Universal Declaration of Human Rights: a Common Standard of Achievement?’ (1967) 8 Journal of International Law and Politics 17, 26. [↩]
- Cohen suggests that human rights norms are best thought of as norms associated with the idea of membership or inclusion in an organised political society, supported by the fact that rights such as the right to education, work, cultural inclusion etc. are contained within the UDHR and the Covenants (( J Cohen, ‘Minimalism about human rights: the most we can hope for?’ (2004) 12 The Journal of Political Philosophy 2, 190, 197). [↩]
- Sohn (n 1) 18. [↩]
- About Human Rights, ‘When a Country Breaches International Human Rights Law’ [http://www.abouthumanrights.co.uk/when-country-breaches-international-human-rights-law.html] accessed 30 December 2015. [↩]
- R Thomas and K Sikkink, ‘The Socialization of International Human Rights Norms in Domestic Practices: Introduction’ in T Risse, SC Ropp and K Sikkink (eds), The Power of Human Rights International Norms and Domestic Change (Cambridge University Press 1999) 2. [↩]
- ibid, 5. [↩]
- J von Bernstoff, ‘The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law’ (2008) 19(5) The European Journal of International Law 903, 923. [↩]
- Thomas and Sikkink (n 7) 5. [↩]
- C Allen, ‘British Deaf community doesn’t work as well with other disabled groups as they could, says World Federation of the Deaf President’ (Limping Chicken, 2 May 2014) [http://limpingchicken.com/2014/05/02/deaf-organisations-not-working-together-is-the-same-old-problem-says-president/] accessed 27 December 2015. [↩]
- UK Council on Deafness, ‘Statement of common purpose on deafness and hearing loss’ [http://deafcouncil.org.uk/2015/04/16/statement-common-purpose-deafness-hearing-loss/] accessed 27 December 2015. [↩]
- UDHR (n 1) art 1. [↩]
- ibid, preamble. [↩]
- ibid, art 2. [↩]
- H Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’ (1995) 25 Georgia Journal of International and Comparative Law 287, 292. [↩]
-  STC 588. [↩]
- Hannum (n 16) 311. [↩]
- Thomas and Sikkink (n 7) 2. [↩]
- H Haualand and C Allen, ‘Deaf People and Human Rights’ (World Federation of the Deaf 2009) 9. [↩]
- Hannum (n 16) 348-9. [↩]
- H Lane, R Hoffmeister and B Bahan, A Journey into the Deaf-World (DawnSignPress 1996) 424. [↩]
- Action on Hearing Loss, ‘Hearing Matters: Taking Action on Hearing Loss in the 21st Century’ (Action on Hearing Loss 2011) 11. [↩]
- JV Van Cleve, Deaf History Unveiled: interpretations from the new scholarship (Gallaudet University Press 2002) 6. [↩]
- H Lane, When the Mind Hears: A History of the Deaf (Random House 1989) 214. [↩]
- National Statistics, ‘GCSE and equivalent attainment by pupil characteristics: 2014’ [https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/402634/SFR06_2015_National_and_LA.xls] accessed 7 November 2015. It is worth noting that a new methodology has been applied following the Wolf review and changes to the rules in early entry policy which has reduced the statistic further by 3.7 percent (under the old methodology, there was a failure rate of 60 percent for 2013/14). [↩]
- Consortium for Research in Deaf Education, ‘Report on 2014 survey on educational provision for deaf children’ (2014) [http://www.ndcs.org.uk/document.rm?id=9801] accessed 7 November 2015. Level 3 refers to the Signature’s Level 3 BSL qualification. The highest BSL qualification that can be achieved is Level 6. The majority have BSL Level 2 (48 percent), followed by Level 1 (35 percent), and 8 percent have no BSL qualifications at all. [↩]
- Signature, ‘British Sign Language’ [http://www.signature.org.uk/british-sign-language] accessed 11 November 2015. [↩]
- SCE Batterbury Magill, ‘Legal Status for BSL and ISL’ (BDA 2014) 8. [↩]
- Oxford Dictionaries, ‘society – definition of society in English from the Oxford dictionary’ [http://www.oxforddictionaries.com/definition/english/society] accessed 11 November 2015. [↩]
- Oxford Dictionaries, ‘life – definition of life in English from the Oxford dictionary’ [http://www.oxforddictionaries.com/definition/english/life] accessed 11 November 2015. [↩]
- FJ Harrington and GH Turner, Interpreting interpreting: Studies and reflections on sign language interpreting (Douglas McLean 2000) 168-9. [↩]
- M Brennan and R Brown, Equality before the law: Deaf people’s access to justice (Douglas McLean 1997) 10. [↩]
- ibid, 91. [↩]
- ibid, 94-5. [↩]
- ibid, 95-7. [↩]
- ibid, 97-8. [↩]
- Harrington and Turner (n 32). [↩]
- ibid, 168. [↩]
- J Borland et al, ‘Responding to Discrimination: The Geography and Geometry of Advice Provision in England, Scotland and Wales’ (Equality and Human Rights Commission 2009). [↩]
- ibid, 104. [↩]
- ibid. ). The Legal Choices – Silent Process report (( J Kyle, H Sutherland and S Stockley, ‘Legal Choice – Silent Process: Engaging Legal Services When You Do Not Hear’ (Deaf Studies Trust 2012). [↩]
- ibid, 24. [↩]
- ibid, 11. [↩]
- The Deaf Prison Project ran from 1999 to 2009, and helped to support Deaf prisoners by giving information, advice and support to Deaf people in prison and offered trained prison visitors and volunteers qualified in BSL; basic deaf awareness training for prison and probation staff and information and advice to deaf families with a family member in prison (Social Exclusion Unit, ‘Reducing Re-Offending by Ex-Prisoners’ (2002), 76). [↩]
- Channel 4, ‘Sign On’ (4 and 11 November 1995) as cited in A Young, B Monteiro and S Ridgeway, ‘Deaf People with Mental Health Needs in the Criminal Justice System: A Review of the UK Literature’  11 The Journal of Forensic Psychiatry 556, 560; P Garfield (dir.), Double Sentence (Soho Theatre, London 2009). [↩]
- Brennan and Brown (n 33) 109. [↩]
- Social Exclusion Unit (n 45) 178. [↩]
- M Gahir et al, ‘The Unmet Needs of Deaf Prisoners: a Survey of Prisons in England and Wales’ (2011) 1 International Journal on Mental Health and Deafness 58, 59. [↩]
- D McCulloch, ‘Not Hearing Us: an Exploration of the Experience of Deaf Prisoners in English and Welsh Prisons ’ (Howard League for Penal Reform 2012) 7. [↩]
- McWhinney (Woolwich Crown Court, 9 November 1999). [↩]
-  1 Cr App Rep 126. [↩]
- ibid, [xxx]. [↩]
- A Emond et al, ‘Access to Primary Care Affects the Health of Deaf People’ (2015) 65 British Journal of General Practice 95, 95. [↩]
- SignHealth, ‘How the Health Service Is Failing Deaf People’ (SignHealth 2014) 3 [↩]
- Sohn (n 3) 18-9. [↩]
- MA Glendon, ‘Knowing the Universal Declaration of Human Rights’ (1999) 73 Notre Dame Review 5, 1153, 1175. [↩]