Interview with Bert Massie: Chair, UK Disability Rights Commission

Q. You are in an appointed position, is that correct, not an elected one?

A. Yes, I was appointed by the Secretary of State.

Q., You're Chair of the Disability Rights Commission. How long have you been in this position now?

A. I was appointed from January 2000.

Q. Are all the people on the Commission appointed or are some elected?

A. First of all it's open competition, because the way in which public appointments work in the U.K., they have to follow certain principles to ensure they're open, that there's no favoritism, no cronyism. Whether that goes on, of course is another thing, but that's what the principles are designed to prevent. The posts are advertised, you have to apply for them, and then there are interviews by civil servants, always with an external examiner to ensure the civil servants are being fair. So, at all interviews at that level, there's always going to be somebody who is not involved in the process, is just simply there from the outside appointed by the Office of Public Appointments. Then the civil servants will make one or two, maybe three, recommendations to Ministers from which they may choose the person they want to appoint. Then, in the case of the Chair, that also has to be approved by the Prime Minister. So, it's civil servants first, short list, then the Secretary of State, usually it's passed by the Union Minister with direct responsibility, and once the Secretary of State has agreed, it then it has to get the Prime Minister's approval. The term of office can be between three and five years, very seldom more than that. A successful appointment, if they wish, and the government wishes, can be appointed for a second term. But after that, the post has to be re-advertised. So they can reappoint without re-advertising for one term, after that it must be re-advertised. For Commissioners, there is a similar process depending on the particular body, either the chair is involved in issues or not. With the DRC, we put up a choice of names to Ministers, and at this point, it's the departmental Ministers who make the decision, and the length of the appointment.

Terms of Commissioners

Q. They make the decision of the length of the appointment, too?

A. Yes, it's not normally controversial, it's usually a three-year term. When the DRC was starting, some got one year, some got two, some got three. When the people got two years, they could be reappointed, and many of them were in fact, but we didn't want all the commissioners leaving at the same time. We want to stagger their terms. Also you have to look at the balance of the Commission. We are required by law to ensure half the members are disabled people. In fact, currently we have two-thirds. But we also need to have representation from employers and from other parts of society and there's only 15 Commissioners, including the Chair. So people need to wear more than one hat, and you're looking for a particular type of candidate, and then, of course, although we're not meant to have people with particular impairments, we make sure we've got somebody with a hearing impairment, mobility disability, or mental retardation - to use the American phrase. We've got a lot of Commissioners with mobility impairments, and Commissioners with a history of mental illness; that doesn't cover all the impairment groups of course, there are lots of other things. So Commissioners have to have a broader vision than their own impairment.

Q. Who generates the short list of names (for Commissioners)?

A. First of all, there would be an advertisement for Commissioners in the national press, so anybody can apply. The civil service would normally weed out those who don't meet the job description we've set. And I would come in at the stage where it's been reduced to about 40 people, because we're appointing three. And then I would be with the civil servant leading this, usually a civil servant about Grade 5, which is the lower-rank of the senior civil service, so clearly you reach the decision making process at the civil service, the operational part, and an external examiner. An external examiner is there at every point to make sure that I'm not appointing my friends, or I'm not selecting someone for inappropriate reasons, and the civil servants are there to do the same. And then we would get it down to three people to interview. So there's three people we would be looking to interview out of nine people - so we have a choice of three for every post, and if we don't find the right people, we can re-advertise. But we would hope to be able to put up more names to the Ministers than there are vacancies. And sometimes you make very strong recommendations of one person over another, but ultimately it's the Minister who decides. So we can make the recommendations, and there's the chairman on the panel doing that. And I can if I wish make my views known to Ministers, but the decision is not mine.

Q. When you say the Minister, you mean the Departmental Minister, not the Prime Minister? The Chair is the only position the Prime Minister needs to agree to - correct?

A. Yes.

Q. So, if you were appointed in 2000, then next year (2005) is the end of your first term, is that correct?

A. No, my first term expired in April 2004, because I only asked for a four-year term, because I planned to retire then. I planned to do four years to get it going, and then hand it over. But there's a new change in the UK, where they're going to amalgamate the Commission for Educational Equality, the Equal Opportunities Committee, a Commission which deals with gender issues, and the DRC, and also expand the role to cover age, sexual orientation, and belief systems - religions. So we're going to have one major Commission, which they think will start around 2007. So I accepted another term appointment until 2007 when I retire.

Government plan to combine equality commissions

Q. How do you feel about the Commissions being combined?

A. The first proposals by the government issued on this were, at the most, half-baked. In fact, I don't think I'd say half-baked, I don't think they'd been in the oven at all. They would have produced a complete hodgepodge, which wouldn't have worked. Essentially, they wanted to put everything together and put one person over it and say, "Well, you don't need disabled Commissioners and we're all integrated now and we're all fighting for a common cause." The problem with that view is that for most discriminated groups, they're fighting the attitudes or the behavior of the people. Disabled people are also fighting the whole environment, and it's much different. The solutions are not simply about being nice to people. In fact, many people who try to be nice to disabled people will still get it fundamentally wrong. So, we thought that disabled people had to keep control of the disability agenda.

When these proposals came out, of all the commissioners, I was the only person who objected to them and said, "Look, this has not been thought through properly." The DRC then did a lot of lobbying, campaigning, to make our case and we were successful in that, and so the new body now will have guaranteed in law, at least one disabled Commissioner. It will have a committee in which half the members must be disabled, and that will run the disability policy as a new organization. What I've not got on board yet, is a disability unit properly resourced and staffed to forward toward that. And some of the other groups are saying, 'Why should disability have this when we don't have it?" My first response here was to say, "All groups should have these sorts of arrangements." But the government was disagreeing with it, and some of the groups said they didn't want it. And so I said, "Well fine, you do what you want. I'm fighting this for disabled people, and if we don't get this for disabled people we will pose this right to Parliament." Governments, by and large, don't want to pass a law claiming to help people, when the people they are claiming to help are campaigning against it. It makes the law look as though it's not quite as good as Ministers are saying it is.

So we think that we probably salvaged quite a lot of it. Some disabled people in the UK believe quite strongly, if you're going to have a commission for equality and human rights, then disability should be in there, they should be separate, and there are lots of common causes. One of the debates has been that disabled people have multiple identities - that they're disabled, they're Jewish, they're Black, they're Lesbian or Gay. I say, "No, people don't have multiple identities, they have many facets to one identity, and this is confused thinking." If you can't go down steps because there's no lift or elevator then it doesn't matter if you're a Muslim, it doesn't matter whether you're a Hindu. What matters is that you're in a wheelchair and you can't get down the bloody steps, that's what matters! You have to really analyze where the problem is, and I think a lot of thinking around this is really very fuzzy.

One of the things I found frustrating in this debate is how many people have not taken the time to really think through the issues as deeply as they should be thought out. Now when the government is trying to write its white paper and they've written the white paper which reflects the DRC's position much better now. But they want to start writing a bill, so groups are coming out saying, "No, this is not going to work for Black people." And some of the Black groups are rebelling, and of course as I said in the first place, it's also got to work for Black people. So it's still a lot to play for, but I suspect there's sufficient political commitment and obviously a big pressure to have something and to get it through while the government is open to doing it, because their view is if government changes, the new government might not be as committed. So, there's lots of pressure to do it, and I think the ministers will ultimately respond to that pressure. What I've got to do is make sure that whatever happens, disabled people at least are protected.

Budgetary implications

Q. Do you worry that it will be a competition for the budgetary resources in the sense that you'll be pitted against ethnic minorities and the elderly and aging discrimination? Do you think that it will be everybody trying to fight for the same pieces of pie?

A. If you go on to our Web site, I've had a couple of speeches on that. I've already written about that enormous issue that I see as going to be a competition because the current Commissions spend something like 45 million pounds between them. The Commission for Racial Equality (CRE) has the biggest budget of over 20, we're coming up to 17 million and it could be 20 by the time 2007 comes. All the other Commissions are having their budgets reduced, and the DRC is the only one which is still expanding. Then again, as we argue to government, we've got a lot more to do. I mean, they've being going for 25 years, we've been going for only five. One of the purposes of this organization is to promote social harmony throughout society -- nothing like having ambitious ambitions. I've said it can't possibly do that if it has social disharmony within and it will have social disharmony if everyone is fighting for resources. So I've asked for a budget of 100 million and my guess is we'll get something like 55, which will automatically mean there will be strife within.

Enforcement powers

Q. Right now you do have enforcement powers - you can try persuasion but you can also bring people to court, isn't that so?

A. We can on the civil rights legislation but not on the human rights legislation, and that's made it difficult for us in representing people in health services because it's civil rights, like access to shops, restaurants, employment issues, you can find a comparator. You can say had this person not been disabled, they would be treated in one way and because they're disabled they're treated in an alternative way, which is less favorable. Then you say, well, that breaks the law so you can bring enforcement powers to bear, we have a lot of enforcement powers, both through the courts, the tribunals, and also we do formal investigations.

We also have a dormant power on human rights, which the government has gone ahead and introduced. It's in the Act, so all the Minister has to do is sign it off, and they refuse to do so. And that makes it very difficult to take cases in the health services where you're talking about people's right to dignity - to lack of humiliation - and in many cases the health services do treat people with appalling indignity and arrogance and while it's not necessarily the everyday experience in health services, it happens sufficiently frequently.

Investigation of bias in health services delivery

Our next formal investigation, which we're launching in the autumn, is on how the health service caters to people who have learning disabilities, who tend to die much younger than other people. That can't always be related to their intellectual impairments, and quite obviously if they go to the doctor and they've got a pain, and the doctor says, "Well, you're imagining it" and it turns out they've got cancer. Now, somebody without an intellectual disability would be treated with more respect by the doctor, a pain is a pain. Somebody with an intellectual disability is as capable at indicating that as anybody else, so why do we distrust their view of their pain and assume it's psychological? You can imagine how people with a history of mental illness are treated if the history of mental illness is on their file. It probably means that all their symptoms are ignored because we automatically look for an emotional reason for the symptoms they're displaying, when there could be a physical one. So we can investigate this, but we can't actually bring cases. I can do the investigation, but I can't bring legal cases because we don't have the human rights powers. The new body, where the government should be actually doing this, they've been saying, "Well, we've believe this can be done by education and persuasion." If it can be done by education and persuasion, and the government wants a change, why not give it legal power? All they say is that legal powers don't bring change, in which case why don't they change the Treasury rules so they have to persuade us to pay our taxes? But they don't do that - they have strong laws. You've got to pay your taxes or you go to jail, so there's ambiguity certainly in the government's reasoning.

Future ability to bring civil suits

Q. When this new Human Rights Commission is embodied and it becomes the process or the way, will you still have the ability to bring suits that are civil rights based? What was the DRC's ability?

A. We are insisting that they have it. First of all, the government was saying that, well, they wanted this to be a new Commission, which worked with people and is cooperative. But the DRC does all that anyway; we have good relations with employers. But there comes a time when, like with Ryan Air, the airline, where you just knew they were doing wrong. We asked them to do it right; they ignored us. They said this law doesn't apply to us. They were charging people who needed to borrow a wheelchair to take the people through the airport. And they said, "Well, we're not charging. It's a handling charge. It's the airport who charges." Whereas every other airline plays advocate, so Ryan Air was being a bit disingenuous to say they weren't charging and if a disabled person buys a ticket on Ryan Air then there's duty in that, and we took them to court to battle to prove that. Now, Ryan Air is appealing, and we're fighting the appeal and I think we'll win that. But there are some people who are so determined to discriminate. There's only the law, and the power of the law to stop them. And for governments to believe that all this is about kindly people who are just need an education - is naïve. Of course there are people who are kindly and fit that stereotype. That's fine, you can work with them. But there's people who don't [get it].

New commission's challenge will be to equalize the rights

The other problem the new organization is going to face is, that if you are going to set up a new organization, which this government seems intent to do, you would think the one thing you'd do is equalize the rights. But they're not even doing that. The three new strands of age, sexual orientation, and belief systems will only have a form of advice. So if a disabled man in his 90s who is a Muslim is turned away from a nightclub where he wants to go dancing all night, he's got no rights because he's 90, the people at the night club can say, "We like young people at our night club. You're a bit old for our night club, mate." There's no right if he's turned away. And the fact that he's a Muslim, there's no rights. And so if he says, "Well, I've got Arthritis, you can't turn me away because I've got Arthritis," it's not the basis. So, one of the main reasons for bringing them together to rationalize anti-discrimination legislation, the government is not taking...And that's why disability needs to be kept separate for a bit so while the other bits are all fighting for what they've obviously got to fight for, disability will split that agenda. And that's why we've fought so hard with the government to keep the disability strand which they will keep for at least five years before they review it. And they said they will build that into the legislation because we were promised that, and I said, "No, promises are no good to me. Ministers come and go. I want it in the law."

Power to sue, but pressure not to use the power

Q. But in terms of being able to sue for civil rights with the new Commission, you haven't won that yet, is that correct?

A. They are letting us sue for civil rights but they're being told it's not a power they should use very often. And they were also saying in the early discussions that it was all to be strategic. Well strategic is a word that is trotted out when, by and large, people don't know what they are talking about - you know, it means whatever you want it to mean and it's one of those nice words which is elastic. So there are some times, certain cases, they'll say, "This is fundamentally wrong, and we've got a lot of people doing this" so that people will get the message. It's not that strategic. A blind person goes into a restaurant with a guide dog, and is banned because the restaurant doesn't take dogs, now that is just against the law, no question. But because it was the restaurant industry, we had to bring a few cases. Now they weren't big, strategic cases, they didn't go to the House of Lords, they didn't create massive case law, the law is quite clear. Any sort of High Street solicitor could have taken them, but they wouldn't because they wouldn't meet any cost, so we took them. So you take a few, and the restaurant industry gets to know that if you've got guide dogs, you got served. And then the message gets through, and that's very persuasive. You know, there's times when you just have to litigate. And they do advise you that you have powers to do it, but the pressure would be on not to use it, but my suspicion is if they have these commissioners, they would insist on using it. In fact, if they disagree on everything else, one of the dangers, is they might struggle finding agreement on some of the other issues that the result is that litigation has become the lowest common denominator. That's one thing they can agree on, and that's the danger. They will need a very powerful Chair, whoever they choose to chair this new organization. It's not going to be an easy task.

Government's rationale in establishing one commission

Q. What was the government's rationale in trying to do that - apart from the talk about being one big, happy family? In reality, was it a budgetary thing or something else?

A. Well, no, I think that there are a number of reasons. One I suspect is there's a belief that the EOC and the CRE perhaps need another way of living, because they've been around for 25 years, and governments don't like things lasting too long, by and large. So that could be one thing. The other thing would be the new strands, that's the old European law and the European Union, and their employment rights, but that could be met by just merging those strands of the current commissions. I mean, there's lots of ways you could have done it, but they came up with this one. It's also significant which department is behind this, the Department of Trade and Industry, which of course is largely geared to meeting the needs of employers, and employers have asked for a single commission, which they say will be an easier one-stop shop. But anyway, they want a one-stop shop. This is not coming from a civil or human rights perspective, this is coming from the Department of Trade and Industry. And you could see the employment influence in saying, you know, "Don't be taking on employers all the time." And if you're going to have an organization, whatever its name is, to fight for the rights of people, then you have to question to what extent those who are denying the rights are setting the agenda. The agenda should be set by disabled people, it shouldn't be set by employers, it shouldn't be set by ministers. It's disabled people that matter in all this.

Concerns about subsuming the Disability Rights Commission within larger body

Q. It seems to me, I don't want to put words in your mouth, but having a DRC, which is specifically about disability, and having people with disabilities on it, would seem to be having a greater impact in terms of educating the non-disabled world - your peers, members of Parliament, etc.- about the importance. I would worry that becoming part of this Human Rights Commission where everybody has their own axe to grind sort of lowers the profile in a way. Is that a concern?

A. I think all of us are going to have to worry about that, if they go to this new big Commission will they lose their own identity? And there's a danger of it. What I've tried to do to mitigate that is, there's a new disability bill going through Parliament at the moment, which will give the DRC new powers, not just to fight discrimination but to promote the equality of disabled people. It's a much more active thing. And there's some other things coming in as well. The exceptions on employment are all being removed, so the fire service will be covered, the police service will be covered, the only exception will be the armed forces. So, we're bringing stronger laws, but they'll need time to settle, which will probably take us through 2010, 2012 anyway, which is why I've argued that the disability strand will be the vital resource to take all this agenda through, so it's a very good agenda. I suspect they'll be more disability bills in the future, but it will be more difficult getting them through this particular body. Another thing that the DRC is doing now is working with the disability charities very closely to ensure that when the DRC is not there, that they are ready and willing to pick up the campaign and roll, so that disabled people don't need to rely on one body. So, we'll be going to two strategies. One is to ensure the body is as sensitive to the needs of disabled people as possible, and I've described some of the measures to do that, but we're also trying to make sure that if this fails totally, the disability agenda will still go forward, because of the charities, who can do the case in their own right, under the act that says the DRC can sue, the charity can sue, an individual can sue as well. And what we do is we fund cases, because anyone can take a case, so we don't profit from taking a case.

Pursuing suits in partnership with disability organizations

Q. Under this new Commission, if you didn't have the powers to sue, would you be able to still pay for cases brought forth by charities?

A. Yes, they'll have the power to do so, the question is, will they use it? Will they say this is a priority? If they don't, the charities can take the case themselves on behalf of the person with a disability, but they would have to foot the bill. And it's typically about 5,000 pounds a case. So it's expensive, they would have to choose the case. But even at the DRC, we only take about 50 cases a year. But what we're choosing now, is having taken the civil justice one, we're looking for the big cases. There's an academic lawyer who reviews the employment legislation each year, and the discrimination legislation, and in his latest lecture, of the eight significant cases being brought under the EDA, the DRC was involved with seven of them. So we are taking the big cases, and we've got about 1000 more cases on appeal. They're the expensive cases, and you've got to have a fairly decent budget to counter the risk of loosing.

If you can't afford justice...then justice is denied"

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