The implementation of the duty on public authorities to promote equality will be animated further by the social rights and anti- discrimination ideals encapsulated in the Charter of Fundamental Rights of the European Union (European Social Charter). The Charter was adopted in 1961 and later on revised substantially in 1996. It sets out to protect a wide range of social rights in a number of fields of relevance to the lives of persons with disabilities such as employment, education, housing, social security and healthcare. In fact, while all the substantive articles of the Revised Charter have some application to persons with disabilities, Article 15 is focused more particularly on the rights of persons with disabilities without prejudice to the application of the rest of the legislation.42
The relevance of the European Social Charter to the Public sector equality duty could be located on three main levels. First, the Charter complements the Framework Directive in the domain of social and economic rights. The fact that the European Union was created primarily as a free trade zone meant that there was always a possibility of privileging economic freedoms over social rights and the European Social Charter gives the EU the potential to operate as a powerful structure for buttressing social rights against the
41 For an illustration of this point, see the UK case of A & B v East Sussex CC [2003] EWHC 167
42See generally G. Quinn, ‘The European Social Charter and EU Anti-discrimination Law in the Field of Disability: Two Gravitational Fields with One Common Purpose’ in G. de Burca and B. de Witte (eds) Social Rights in Europe (OXFORD, OUP 2005) pp279-304.
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‘race to the bottom’ created by the forces of economic rationality. To the extent that it creates a synthesis between economic and social aims, the public sector equality duty could be said to be at the heart of the synergy that ought to evolve between the Framework Directive and the European Social Charter at the national level. In other words, the duty provides a fertile soil for examining the conceptual and practical link between these two different legislations and the values they espouse.
A core value espoused by the European Social Charter is the prohibition of discrimination and the promotion of equality for persons with disabilities. Even though the 1961 Charter only referred to non-discrimination in its preamble, Article E of the revised version specifically prohibits discrimination in somewhat similar terms to those adopted in Article 14 of the European Convention on Human Rights (ECHR). Furthermore, Article 26 of the 1961 Charter calls on member states to recognise and respect the 'right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community while Article 34 states that the union recognizes and respects the entitlement to social security benefits and to housing and social assistance so as to ensure a decent existence for all those who lack sufficient resources.
Second, Professor Fredman has postulated that, in developing social rights to counterbalance economic freedoms, the E u r op ea n S o ci a l C ha r t e r has reformulated tr a di t i ona l notions of rights. Instead of creating rights in their traditional individualised, negative, judicially enforceable, and fault-based form, the charter espouses a proactive model which aims at institutional change, based on the notion of the active citizen and the centrality of participation in both rule formation and enforcement. Such a reformulation has a particular resonance to the Public sector equality duty which is not only built on a proactive model to equality but challenges Traditional conceptions of rights through mainstreaming and other proactive initiatives.43Furthermore, it is hoped that, by reconceptualising social rights not as burdens on business but as essential contributors to efficiency, the charter will assist the entry and integration of persons with disabilities in to the labour market. This
43 S. Fredman, ‘Transformation or Dilution: Fundamental Rights in the EU Social Space’ European Law Journal, Vol. 12, No. 1, January 2006, pp. 41–60.
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point is of particular significance once it is acknowledged that disability has generally and mistakenly been taken as a proxy for economic inefficiency and any attempt to integrate persons with disabilities in to the labour market is automatically considered as costs-ineffective since it is simply presumed that persons with disabilities are less productive.
Third, the ability of non-governmental organisations and trade unions, amongst other actors, to initiate "collective complaints"' under the auspices of the Charter has not only led to the production of a new body of case-law on discrimination issues but may prove to be of crucial importance to the many organizations of persons with disabilities who will be monitoring the implementation of the Public sector equality duty in the context of disability. Of particular significance here is the case of Autism-Europe v France44 in which France was held to have breached several provisions of the 1996 Revised European Social Charter, including a finding of unlawful discrimination on the ground of disability, because of the insufficient provision of education for children and adults with autism.
It is crucial to the promotion of the ideals of non-discrimination and equality for persons with disabilities to note here that the Advocate General pointed out in the BECTU case45 that the Charter served as a substantive point of reference for the interpretation of the nature and scope of a fundamental right, so that any derogation by member states should be interpreted narrowly. On his part, Professor Quinn has suggested that the value of the charter resides not only in the outcomes it could legally drive but, most importantly in the fact that it constitutes an expository of the core European social values.46 It may therefore be the case that an examination of the provisions of the charter and the relevant case law of the European Committee of Social Rights would not only be instrumental in understanding the role of the anti-discrimination and equality norm in the socio-economic sphere with respect to disability but may also be influential in helping to frame how the Public sector duty on equality will be implemented by public authorities in this context.
44 Decision of the European Committee of Social Rights, Collective Complaint 13 (2003)
45 C-173/99 R v Secretary of State for Trade and Industry ex p BECTU [2001] ECR I-4881, Opinion, para 28.
46 G. Quinn, supra no. 42 pp279-304.
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