• Individual persons with disability should
be supported to make their own decisions
in all aspects of their lives, and public
authorities should have processes in place
to facilitate supported decision making.
When decisions have an impact upon
people with disabilities as a group, persons
with disability, including through their
representative organisations, should be
consulted as part of the process.
The participation duty would arise when public
authorities are developing policies, or making
decisions, that affect the rights of these three
groups. The duty would arise when decisions
are being made that directly concern these
groups, or where the decision is likely to have
a disproportionate impact on the group in
question. For example, changes to planning
policies may have a disproportionate impact
on people with disabilities if they affect
accessibility.
Where decisions are made that affect groups of
people, the decision maker need only show that
there was sufficiently fair and representative
consultation, not that participation occurred
comprehensively with all relevant bodies or
individuals.
The Commission has developed a set of
guidelines that encompass key considerations
for determining the quality of a general
participation process. These include, for
example, that consultations should occur at
a formative stage; and that the results of the
consultation should be conscientiously taken
into account.
Such objective criteria can be applied by the
courts when determining whether the Human
Rights Act was breached due to failure to
consult in relation to particular right(s). Where
public authorities can show that they enabled
affected person(s) to genuinely participate in
a decision made about them, this will fulfil the
participation duty, and point to the fulfilment of
the substantive right under consideration by a
court. As with substantive rights in the Human
22
Rights Act, the participation duty could be
justifiably limited through the application of the
limitations clause.
Participation duty on proponents of legislation
The participation duty would also apply as a
non-binding duty for proponents of legislation
to facilitate participation during the law-making
process and to reflect what participation
measures were undertaken in Statements of
Compatibility. This would also be subject to
scrutiny by the PJCHR. Failure to engage in or
report on participation to Parliament would not
affect the validity of the instrument in question.
• Equal access to justice duty
In addition to an overarching participation duty,
the Commission proposes a complementary
‘equal access to justice duty’ for public
authorities.
This duty would mean that public authorities
have a positive duty to realise access to justice
principles – and would require active steps by
public authorities to ensure the provision of
key elements of a functioning justice system.
Specifically, it would be the role of public
authorities to provide sufficient access to legal
assistance, interpreters and disability support to
individuals navigating the justice system.
This duty would create an obligation to meet
minimum requirements associated with the
right to a fair hearing, overlayed by nondiscrimination principles that require the
provision of certain key supports and services
within the justice system to protect equality
before the law. This is a principle of equal
access, in order to overcome current barriers to
access faced by particular groups.
The purpose of this duty is not only to codify,
but to strengthen and support key principles
established by common law courts by linking
them to positive human rights obligations
as defined by international law. The duty
would embed non-discrimination principles