Renewal of European Disability Policy

Bjørn Hvinden

Ambiguity of the term
’European policy’
• Meanings:
• 1) Policy at the level of the European Union
• 2) Policy at the level of (current) Member States
• 3) Policy at the level of all countries in Europe (cf. the Enlargement process)

The emerging Union-level disability strategy
• From the early 1980s until mid-1990s three successive Action Programmes
• ’Soft’ co-ordination through exchange of experience and dissemination of innovations to promote ’best practice’
• Created arenas for diabled people’s participation and facilitated the development of transnational networks

The emerging strategy (cont.)
• In this first period a fairly strong focus on employment-related issues
• Since the mid-1990s a change towards a broader and more comprehensive strategy
• A stronger ambition to influence policies and practices of Member States and to obtain EU legislative competence in the field of disability policy

The emerging strategy (cont.)
• Important shift signalled by a Communication from the Commission 1996
• Key notions (later endorsed by Council Resolutions):
• Equal opportunities for disabled people
• Non-discrimination
• Mainstreaming
• A rights-based approach
• Inclusion and full participation
• Identifying & removing barriers

Adoption of instruments to implement the strategy
• Inclusion of ’disability’ in the anti-discrimination Article 13 of the 1997 Amsterdam Treaty
• The Nov 2000 Directive etablishing a general framework for equal treatment in employment and occupation
• Community Action programme to combat a wider range of discrimination

Adoption of instruments (cont.)
• Member States are to adopt laws, regulations and administrative provisions to comply with the Directive by Dec. 2006
• Awareness-raising activities - for instance through the European Year of People with Disabilities 2003
• Provision of financial support to NGOs working in the disability field

Achievements so far
• More effectively put disability issues on the overall EU agenda - increased awareness and a new understanding of rights
• Started a process of establishing the necessary legal instrument to promote equal opportunities for disabled people
• Disabled people are recognised as partners in the on-going dialogue about the development of European disability policy

Two critical aspects of the Nov 2000 Directive
• 1) The issue of sharing the costs between employers and public authorities:
• How will ’reasonable accommodation (Art. 5) be interpreted? Will there be sources of public financial support in Member states in instances where costs for the employer are deemed to be ’disproportionate’?
• 2) What definitions of ’disability’ will be adopted in Member States and eventually by the European Court of Justice?

Challenges and issues
• 1) To what extent will Member States follow up the objectives and spirit of the EU disability strategy - as a dynamic, evolving process?
• More specifically: Will the Member States change and amend existing legislation to comply with the Nov 2000 Directive, making the full implications clear and visible?

Challenges and issues (cont.)
• Will Member States provide the necessary supporting measures to make the aims and rules of the Directive operative?
• Sufficient and accessible information about the changes?
• Institutional arrangements and specialised bodies to monitor implementation and enforcement, and provide advice and support to complainants & litigants (e.g ombudsmen)?

Challenges and issues (cont.)
• 2) To what extent will organisations of disabled people, trade unions and other NGOs contribute to making the new rights under the Directive effective?
• Campaigning and lobbying to get national governments to make rights clear and visible,
• Informing people about their rights under the Directive and encourage their use,
• Supporting members who experience discrimination and who will present complaints, take their case to court, etc.

Challenges and issues (cont.)
• This is important as there has been a number of examples at the level of Member States of new legal provisions that were never really implemented or enforced.
• This include provisions meant to promote equal opportunities in employment and give employers clearer obligations to make workplaces accessible or undertake other required forms of accommodation in order to prevent the exclusion of disabled people.


Challenges and issues (cont.)
• 3) Will the EU-level ’itself’ manage to follow up the promises of Art. 13 and the Nov 2000 Directive?
• Stronger legal provisions under future Treaties? (from unanimous agreement to qualified majority in anti-discrimination field?)
• A widening in the form a comprehensive anti-discrimination Directive? (that is, not limited to employment)

Challenges and issues (cont.)
• To what extent will the principles of non-discrimination, equal opportunities & mainstreaming filter through in other areas of EU legislation?
• E.g. transport, building, telecommunications, information technology, public procurement, etc.
• Not only at the level of stated intentions but also at the level of binding and enforceable regulations?

Challenges and issues (cont.)
• 3) How will the EU respond to and combat multiple discrimination in the further formation and implementation of policy?
• People may be discriminated against on more than one ground: E.g. being a lone mother and having a disability, or belonging to an ethnic minority and having a disability
• Complementary and co-ordinated sources of protection - or falling between stools?

Challenges and issues (cont.)
• 4) How will the relationships be between the new anti-discrimination provisions and other EU programmes in the areas of inclusion, employment and modernisation of social protection?
• Implications of the latter for the disabled people?
• Mutually supporting or weakly linked strategies?
• Mainstreaming = invisibility and lower de facto priority? (Cf. disabled people as mentioned explicitly in the Guidelines for National Employment Plans or not)



Challenges and issues (cont.)
• 5) How will the implementation of the Nov 2000 Directive affect existing national policy provisions of great significance for the living conditions of disabled people?
• These include key provisions like income maintenance benefits, employment measures and services to promote independent living?
• In other words; how will the new regulative policies influence the future of redistributive policies?

Challenges and issues (cont.)
• ’Redistribution’ of resources from the state to citizens
• For instance social security, employment and personal social services
• In Member States concern over costs; still resistance to give up control over these - important as source of legitimacy

• ’Regulation’ of the behaviour of non-governmental actors
• For instance anti-discrimination measures
• Compatible with the overall profile of EU policy-making but may be seen as controversal if it infringes on established interests

Challenges and issues (cont.)
• Redistributive policies are under pressure in most Member States on the basis of rising costs, demographic changes and issues of sustainability, the need to avoid deficits, etc.
• There may be a temptation to see a strengthening of regulation policies (e.g. anti-discrimination measures) as an alternative rather than as a complement to redistributive policies (cf. the issue of sharing of costs when accommodation means ’disproportionate’ costs)

Challenges and issues (cont.)
• A related challenge is the great variability and difference in existing provisions between Member States. This include:
• The level of public policy efforts (expressed in spending as proportion of GDP) versus family-based care,
• the degree to which services for disabled people are separate and segregating or integrated and mainstreaming,
• the relative emphasis on different policy instruments ( legislative, financial & communicative means) or regulation versus redistribution)


Challenges and issues (cont.)
• This means that Member States will have extremely dissimilar points of departure when they are to follow up the EU disability strategy (and more specifically; implement the Nov 2000 Directive).
• Differences in point of departure is likely to influence how Member States will balance regulatory and redistributive measures in the coming years.
• This challenge will probably be even greater after the likely Enlargement of the Union.

Challenges and issues (cont.)
• 6) Will the EU engagement in the disability field mean that the disability policies of Member States will become less different?
• The same overall objectives - but will Member States still have different packages of measures (’means’) to reach these goals?
• Does the implementation of the Nov 2000 Directive mean that Member States to some extent are about to adopt similar policy instruments?
• If so; will ’outcomes’, the quality of life of disabled people across Europe become more similar?

Challenges and issues (cont.)
• The EU disability strategy has a potential for promoting not only more similar objectives but also greater similarities of approaches and instruments in Member States. But the future success of the strategy will depend on to what extent it will be seen as trying to change ’crowded’ policy areas or opening up ’vacant’ ones.

Challenges and issues
• ’Crowded’ policy areas
• Established objectives, rules & provisions
• Long-existing policies, power balances and vested interests.
• More resistant to change
• ’Vacant’ policy areas
• Fewer pre-exiting goals and means or actors with well-defined interests and positions
• Greater scope for the adoption of ’new’ policies


Challenges and issues (cont.)
• So far there have been few indications of a general trend towards more similar approaches within social security, employment and independent living provisions
• The most likely candidate for greater similarity appears to be measures to ’activate’ disabled people without employment, through changes in benefit schemes and reinforced pressure to take part in active measures.

Challenges and issues (cont.)
• We may be witnessing a tension between two competing discourses about disability:
• (a) ’Societal costs’ - concern about high levels of expenditure, the number of ’passive’ beneficiaries, inefficiencies and disincentives to work, the need for a stronger emphasis of ’obligations’ (e.g. to participate)
• (b) ’Equal rights and opportunities’ - emphasis on self-determination, independent living, participation as a right, removing of barriers, combating discrimination

Challenges and issues (cont.)
• The scope for a future convergence - ‘a movement towards the same point’ - may be greater within provisions of ’regulation’ type, as illustrated by the EU anti-discrimination strategy
• But the implementation of the Nov 2000 Directive may show that even within regulation policies some areas may be more ’crowded’ than other (e.g. established systems of industrial relations, employment protection, notions of employers’ ’prerogatives’, etc.)

Challenges and issues (cont.)
• It is doubtful that disability policies of a regulation type can fully serve as alternatives to policies of redistribution type - they are not just two different ways of achieving the same goals.
• Even if policies of redistribution and regulation in this sense complement each other, we may still observe attempts to replace the former with the latter in the years to come.