Disabled Justice? Access to Justice and the UN Convention on the Rights of Persons with Disabilities

190 Pages·2015·1.62 MB·English

by  Eilionóir Flynn

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DisableD Justice?
Disabled Justice? access to Justice and the uN convention on the Rights of Persons
with Disabilities presents a well-crafted conceptual framework through which the author
provides an intelligent and instructive critique of access to justice for people with disabilities
identifying key areas for reform that go to the heart of building an inclusive justice system.
Rosemary Kayess, university of New south Wales, australia
The CRPD, for the frst time in the history of international human rights law, recognizes
access to justice as a distinct human right. Drawing upon the intersectionality inherent to
disability, Eilionóir Flynn in this path breaking study competently constitutes the symbolic,
procedural, substantive and participatory components of this right.
amita Dhanda, centre for Disability studies, Nalsar university of law, india
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Disabled Justice?
access to Justice and the uN convention on
the Rights of Persons with Disabilities
eilioNóiR FlyNN
National University of Ireland, Galway
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First published 2015 by Ashgate Publishing
Published 2016 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
711 Third Avenue, New York, NY 10017, USA
Routledge is an imprint of the Taylor & Francis Group, an informa business
Copyright © Eilionóir Flynn 2015
Eilionóir Flynn has asserted her right under the Copyright, Designs and Patents Act, 1988, to be
identifed as the author of this work.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any
form or by any electronic, mechanical, or other means, now known or hereafter invented,
including photocopying and recording, or in any information storage or retrieval system, without
permission in writing from the publishers.
Notice:
Product or corporate names may be trademarks or registered trademarks, and are used
only for identifcation and explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
The Library of Congress has cataloged the printed edition as follows:
Flynn, Eilionóir, 1986- author.
Disabled justice? : access to justice and the UN Convention on the Rights of Persons
with Disabilities / by Eilionóir Flynn.
pages cm
Includes bibliographical references and index.
ISBN 978-1-4724-1859-3 (hardback)
1. People with disabilities – Civil rights. 2. Justice,
Administration of. 3. Convention on the Rights of Persons with Disabilities and Optional
Protocol (2007 March 30) I. Title.
K637.F57 2015
342.08’7 – dc23
2014030032
ISBN 9781472418593 (hbk)
ISBN 9781315577432 (ebk)
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Contents
Acknowledgements vii
Foreword ix
Introduction 1
1 Access to Justice and its Relevance for People with Disabilities 5
2 Access to Justice and its Intellectual Antecedents in International
Human Rights Law 21
3 Accessing the Law: Information,
Advice and Representation 49
4 Access and Participation in Court: Structures, Evidence
and Procedures 83
5 Incorporating Disability in Legal Education and Practice: A Call
for Consciousness-Raising 117
6 Participatory Justice, Deliberation and Representation in Public
and Political Life 141
Conclusion and Recommendations for Reform 171
Index 175
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Acknowledgements
So many people contributed to the writing of this book. I would frst like to thank
Anna Lawson, with whom I frst wrote about this topic, for working with me
to develop my ideas about ‘justice’ and ‘access’ in more depth – much of the
framework I build in Chapter 1 and the analysis of existing human rights law in
Chapter 2 draws on our article on this topic.
I also want to thank Theresia Degener for kindly agreeing to write the foreword
for this book, and for continuing to produce powerful intersectional scholarship on
feminism and disability, while combining her work on the UN Committee on the
Rights of Persons with Disabilities with educating the next generation of students
in disability rights. My profound gratitude also goes to Sara Ryan, who knows all
too well how diffcult it is to achieve justice for disabled people, for generously
allowing me to use the artwork of her amazing son, Connor Sparrowhawk, also
known as ‘LB’, short for Laughing Boy, for the cover of this book.
I am incredibly grateful to my students on the LLM in International and
Comparative Disability Law, in particular Elizabeth Kamundia, Charlotte May-
Simera, Innocentia Mgijima, Kiran Wagle and Alberto Vasquez, for lively
discussions in class on access to justice from a global perspective – and for inviting
me to confront the lived reality of people with disabilities in very different parts
of the world.
Special thanks also go to the staff and student volunteers in the Disability
Legal Information Clinic at the National University of Ireland, Galway who
actively work to ensure that people with disabilities have the practical means to
access justice. I would like to particularly acknowledge Clíona de Bhailís, who in
addition to being the student co-ordinator of the Clinic, wrote an excellent minor
thesis on litigation capacity which I cite in Chapter 4.
I owe a huge debt of thanks to Gerard Quinn for reminding me that I should write
this book (since I kept talking about it) – and to all of my colleagues at the Centre
for Disability Law and Policy for accommodating me when I kept disappearing
to do so. A very special thanks goes to Anna Arstein-Kerslake and Lucy Series –
my legal capacity gurus – for many long and fruitful discussions about the nature
of justice, and what access to it might mean in the context of disability, as well
as for their scholarship on legal capacity and litigation respectively, which I cite
throughout Chapters 2 and 3.
Finally, as always, I want to thank Eoin Daly, for encouraging me to think about
the political dimensions of justice, as well as for his love and support throughout
the entire writing process.
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Foreword
Access to justice is one of the many human rights which have been denied to
disabled people throughout the world and throughout history. It is sad knowledge
that access to justice in most countries is usually available to those who have
fnancial, political or cultural power, whereas minorities or other groups
experiencing discrimination and subordination are excluded from it. The paradox
that those most in need for access to justice are the least likely to receive it remains
one of the most compelling human rights issues of the 21st century. People with
disabilities, just like women, the LGBTQI community, children or people of
colour, belong to these foreclosed groups.
The Convention on the Rights of Persons with Disabilities of 2006 (CRPD)
enshrines the human right to access to justice in its Article 13. The CRPD is a treaty
of many frsts: for example, the frst international human rights treaty of the 21st
century, the frst human rights treaty with a mandatory national monitoring body
(Article 33), the frst human rights treaty to acknowledge multiple discrimination
(Article 6). Another frst can be found in Article 13, which is the frst stand-alone
provision in UN human rights treaties on the right to access to justice. As with
other provisions of the CRPD, we can expect Article 13 CRPD to lead to further
development and improvement of international human rights law in general, once
implementation, jurisprudence and legal commentaries have been developed.
The present book of Eilionóir Flynn is a highly valuable contribution in this
regard. The book touches upon a long neglected subject in disability law and
policy. Despite accessibility being the key topic of the disability movement, access
to justice for people with disability has not been the target of many campaigns nor
has it been theoretically explored.
The present book meets the high standard Eilionóir Flynn has set with her
frst publication on the CRPD, ‘From Rhetoric to Action’, and in all research and
advocacy activities we have undertaken together. This new book offers a brilliant
account and further development of theories of justice and how they can be applied
to persons with disabilities. Her comprehensive and holistic concept of access
to justice contributes to mainstream legal and political theory with a disability
and intersectional perspective. It also offers palpable solutions on how to achieve
reform: recognition, inclusion and awareness raising are the three main tracks for
a roadmap to reform in access to justice.
I congratulate Eilionóir Flynn for producing another outstanding contribution
to academic knowledge and research in international disability rights studies. No
doubt this book will prove to be a useful tool for our work in the UN Committee on
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