Government human rights focal points: Lessons learned from focal points under the Convention on the Rights of Persons with Disabilities
| Published date | 01 June 2021 |
| Date | 01 June 2021 |
| DOI | 10.1177/09240519211015557 |
| Author | Colin Caughey |
| Subject Matter | Articles |
Article
Government human rights
focal points: Lessons
learned from focal points
under the Convention on
the Rights of Persons
with Disabilities
Colin Caughey
NUI Galway, Galway, Ireland
Abstract
The exploration for tools and approaches that will make the UN human rights treaty system more
impactful has been ongoing for over thirty years. The UN Convention on the Rights of Persons
with Disabilities continues to represent the most innovative approach to effecting human rights
implementation at the domestic level, through placing obligations on States to designate a Disability
Focal Point within government and an Independent Monitoring Mechanism outside of government.
This article examines the role of Disability Focal Points and considers in particular how the current
drive for the establishment of National Mechanisms for Reporting and Follow-Up may have
unintended consequences for their development. The article utilises the United Kingdom as a case-
study to assess the potential benefits of allocating responsibility for international reporting and
follow-up to a Disability Focal Point.
The article finds that the role performed by Disability Focal Points at the domestic level makes
them best placed to coordinate reporting and follow-up relating to the CRPD. Furthermore, the
fact that Disability Focal Points are fully integrated into domestic national policy mechanisms means
that they ought to be well positioned to harness the transformative potential of the treaty body
examination process.
Keywords
Treaty body, disability, human rights implementation, focal points, State capacity
Corresponding author:
Colin Caughey, Centre for Disability Law and Policy, NUI Galway, Galway, Ireland.
E-mail: colin.caughey@nuigalway.ie
Netherlands Quarterly of Human Rights
2021, Vol. 39(2) 119–139
ªThe Author(s) 2021
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1. INTRODUCTION
The establishment of governmental human rights focal points (GHRFPs) is emerging as a widespread
State practice.
1
While international guidance on comprehensive GHRFPs is recent and is limited to
reporting and follow-up to international bodies, thematic governmental focal points have existed for a
long time. As with all public actors within the national human rights system, GHRFPs participate in
domestic processes alone or in cooperation with other domestic actors, as well as interacting with
international and regional human rights mechanisms.
2
Government al focal points for the rights of
persons with disabilities are a case-in-point. They were first mentioned in soft law guidance in the
1980s, but then became a legal obligation for the States having ratified the 2006 Convention on the
Rights of Persons with Disabilities (CRPD or Convention). This points to the CRPD and associated
State practices as crucial areas of investigation informing the development of comprehensive GHRFPs.
This article seeks to assess the contribution of the CRPD to the notion of focal points by both
looking at the legal prescriptions and an example of State practice. In addition, it cross-examines
this contribution in light of the 2016 international guidance on National Mechanisms for Reporting
and Follow-Up (NMRFs),
3
which is the sole guidance on comprehensive GHRFPs.
4
NMRFs and CRPD focal points share the goal of ensuring that human rights systems are more
impactful. However there is a foundational difference in the main orientation of these focal points.
CRPD focal points are primarily addressed as ‘implementation’ structures, as explicitly stated in
Article 33(1) of the Convention, stressing both their national role and catalytic role within national
actors and policies. The CRPD diverges from established practices in both its construction and in
the monitoring of the Convention. During the negotiation of the CRPD, innovative approaches to
international monitoring were discussed. However, States were cautious of untried international
examination processes and the push for innovation shifted to the domestic level.
5
In contrast, an NMRF is a government body mandated to coordinate and prepare reports to
international and regional human rights mechanism and to coordinate follow up.
6
It is mainly a
transmission belt for international p rocesses. The development of NMRFs is grounded in the
objective of reducing the burden of reporting arrangements vis-a
`-vis international bodies, in the
hope that they will enrich examination processes and bring about effective follow-up.
Whereas the theory of change which underpins the CRPD seeks to influence the domestic
system to internalise the Convention, an NMRF is intended to improve and streamline the inter-
national system. This distinction is most evident in the treatment of recommendations from
international treaty bodies. NMRFs tend to treat these as an authoritative translation of the uni-
versal norms.
7
The CRPD system emphasises the role of domestic actors in translating norms in the
1. Seeintroduction to this Special Issue: S ´ebastien Lorion and St´ephanie Lagoutte, ‘What are Governmental Human Rights
Focal Points’ (2021) Netherlands Quarterly of Human Rights, Section 2.
2. S´ebastien Lorion, Defining Governmental Human Rights Focal Points: Practice, Guidance and Concept (Danish
Institute for Human Rights, 2021) Chapter 2
Lorion%20Defining%20GHRFPs%20-%20DIHR%202021%20Final.pdf> accessed 28 April 2021.
3. OHCHR, National Mechanisms for Reporting and Follow-Up: A Practical Guide to Effective State Engagement with
International Human Rights Mechanisms, 2016.
4. See introduction to this special issue.
5. MeredithRaley, ‘The Drafting of Article 33 of the Convention on the Rights of Persons with Disabilities: The Creation
of a Novel Mechanism’ (2016) 20(1) The International Journal of Human Rights 138.
6. OHCHR, ‘Practical Guide’ (n 3) 2.
7. Report of the UN High Commissioner for Human Rights, 26 June 2012, UN Doc. A/66/86, p. 5.
120 Netherlands Quarterly of Human Rights 39(2)
domestic context. The CRPD system is at the start of a process of translation that will end in the
realisation of human rights at the domestic level. The CRPD at Article 4(2) recognises that the full
realisation of economic, social and cultural rights will be progressively achieved, requiring con-
tinuous action by the state actors which can go beyond the specific requirements of the CRPD.
As the role of NMRFs continues to expand, there will be an increasing need to consider how
NMRFs relate to the role of CRPD focal points, and other thematic human rights focal points. This
is particularly the case as the Office of the High Commissioner for Human Rights (OHCHR) has
emphasised that NMRFs need to extend ‘beyond the narrow remit of reporting to international and
regional human rights mechanisms’.
8
To symbolise this expansion, supporting NGOs
9
and a
number of States gathered in a ‘group of friends’, precisely to advocate for the re-labelling of
NMRFs as national mechanisms for implementation, reporting and follow-up.
10
The relationship between NM RFs and focal points raises not only legal but also pr actical
questions which best reveal themselves through empirical investigation. Drawing on the example
of the United Kingdom (UK), this article will consider whether concentrating all human rights
reporting and follow up activities within a centralised unit may hinder the potential transformative
effect which the international system can have upon government bureaucracies.
This article begins by setting out a legal analysis of the CRPD focal points and how they qualify
as GHRFPs. It will then assess how their role overlaps with that performed by NMRFs. After
utilising the UK as a case-study to illustrate the abov e point concerning the centralisation of
reporting and implementation, this article will conclude by highlighting that the development of
GHRFPs must be informed by circumstances in the State in question and be guided by the ultimate
goal of human rights implementation. In this respect, this article highlights the need for an
approach which is complementary.
2. CRPD FOCAL POINTS AS GOVERNMENTAL HUMAN RIGHTS
FOCAL POINTS
The CRPD is unique in both its content and in its approach to implementation. Rather than setting
out substantive rights which can be incorporated by States Parties, the CRPD puts forward a
‘normative steer’ and seeks to influence the internal dynamics of the domestic system within
States Parties.
11
This reflects a general trend in human rights compliance theories which empha-
sises the need to internalise human rights values. In order to achieve this, the CRPD places a
specific obligation on ratifying States to designate a CRPD focal point, to consider the develop-
ment of a coordinating mechanism and to establish an independent monitoring mechanism. These
bodies will provide the architecture for change.
12
The focal point plays a key role in adapting
bureaucratic processes and cultures to reflect the principles and values of the CRPD.
8. OHCHR, ‘Practical Guide’ (n 3) 16.
9. In particular, the Universal Rights Group, see:
mentation-universal-norms/project-1/> accessed 11 November 2020.
10. HRC Res 42/30 (UN Doc A/HRC/42/30, 24 September 2019).
11. Gerard Quinn, ‘Bringing the UN Convention on Rights for Persons with Disabilities to Life in Ireland’ (2009) 37(4)
British Journal of Learning Disabilities 245, 249.
12. GerardQuinn, ‘Resisting the ‘‘Temptation of Elegance’’: Can the Convention on the Rights of Persons with Disabilities
Socialise States to Right Behaviour?’ in Oddny Mjoll Arnardottir and Gerard Quinn (eds), The Convention on the
Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff 2009).
Caughey 121
Article 33(1) spells out the obligation to nominate focal points as follows:
States Parties, in accordance with their system of organization, shall designate one or more focal points
within government for matters relating to the implementation of the present Convention, and shall give
due consideration to the establishment or designation of a coordination mechanism within government
to facilitate related action in different sectors and at different levels.
The text of Article 33 does not prescribe ‘either the form or the specific function of a focal
point’,
13
and the OHCHR has emphasised that ‘States are free to determine the appropriate
structure according to their political and organizational context’.
14
This position reflects a desire
across the international human rights system to allow States to develop focal points in line with
their own particular circumstances.
15
Guidance by the CRPD Committee on the formation of focal points issued since the opening of
the CRPD for signature brings some additional prescriptions but has not been conclusive on all
aspects, and in some matters has been inconsistent. The UN Special Rapporteur on the Rights of
Persons with Disabilities (hereafter, the Special Rapporteur) is a third source of soft law guidance
that addressed this issue. In 2009, the OHCHR published a thematic study on the structure and role
of national mechanisms for the implementation and monitoring of the CRPD,
16
followed by a
guidance document on CRPD focal points in 2014.
17
This section envisages CRPD focal points following the GHRFP conceptual dimensions and
principal attributes outlined in the introduction to the Special Issue.
2.1. GOVERNMENT-BASED STRUCTURE
Article 33(1) makes it clear that focal points are ‘within governme nt’. A focal point is to be
composed of public officials. The text clearly does not foresee including organisations outside
of government.
The OHCHR has emphasised that the preferred administrative home for a focal point is at the
most senior level of government.
18
In its concluding observations, the CRPD Committee has raised
concerns when they have considered that the Article 33(1) institution is ‘not of a sufficiently high
institutional rank to effectively carry out its duties’.
19
The CRPD permits States to designate one or more focal points. The CRPD Committee, in its
concluding observations, has on occasion demonstrated a preference for the designation of mul-
tiple focal points. For instance, it recommended that the Ugandan government ‘expedite the
13. OHCHR, ‘National Implementation and Monitoring’ UN Doc CRPD/CSP/2014/3 (1 April 2014) para 8.
14. OHCHR, ‘Thematic Study by the Office of the High Commissioner for Human Rights on the Structure and Role of
National Mechanisms for the Human Rights Structure and Role of National Mechanisms for the Implementation and
Monitoring of the CRPD’ UN Doc A/ HRC/13/29 (22 December 2009) 9.
15. Valentin Aichele, ‘Article 33 National Implementation and Monitoring’ in Ilias Bantekas, et al (eds), The UN Con-
vention on the Rights of Persons with Disabilities: A Commentary (Oxford University Press 2018) 986.
16. OHCHR, ‘Thematic Study’ (n 14).
17. OHCHR, ‘National Implementation’ (n 13).
18. ibid para 11 (b).
19. CRPD Committee, ‘Concluding Observations on the Initial Report of Argentina’ CRPD/C/ARG/CO/1, October 2012
para 51.
122 Netherlands Quarterly of Human Rights 39(2)
process of appointing focal points within ministries and other government bodies’.
20
The OHCHR
guidance document emphasises the development of a two-pronged approach, with a central focal
point and focal points across levels of government and within departments.
21
Where there are
multiple focal points, the Special Rapporteur has reiterated the need to ensure ‘a mechanism to
coordinate and harmonize the initiatives carried out at the federal, provincial and territorial levels
by these different focal points’.
22
2.2. HUMAN RIGHTS MANDATE
The CRPD focal points must have a clear thematic human rights mandate. Article 33(1) refers to
the ‘designation’ of a focal point, whereas it refers to the ‘establishment or designation’ of a
coordination mechanism. The OHCHR acknowledges that ‘relevant bodies’ may already exist.
The mandates of existing bodies must be revised to include ‘overseeing the implementation of the
Convention’.
23
This will include promoting awareness of the Convention, participation in the
development of an action plan, and monitoring implementation.
24
The OHCHR highlights that the ‘designation of the ministries of health or of welfare and labour
as the government focal point should be avoided’, and the preferred administrative home of a
CRPD focal point is in ‘ministries responsible for human rights, social affairs and justice’.
25
2.3. COORDINATION
The OHCHR emphasises that one of the functions of a CRPD focal point is ‘to avoid uncoordi-
nated action’.
26
In addition to the obligation to establish a focal point, a State is also required to
consider the development of a coordination mechanism. The OHCHR suggests that a coordination
mechanism ‘might take the shape of an inter-ministerial group, tasked with coordinating imple-
mentation of the Convention across respective departments/sectors or levels of government’.
27
Lord and Stein highlight that the requirement to establish a co-ordination mechanism was ‘an
explicit acknowledgement by the drafters that responsibility at the national level for ensuring the
rights of persons with disabilities extends across a wide range of government sectors; therefore it
poses significant coordination and coherency challenges’.
28
As with focal points, coordination mechanisms are ‘within government’ according to CRPD
Article 33(1). Disability rights groups and engaged scholars have argued, for different reasons, for
20. CRPDCommittee, ‘Concluding Observations on the Initial Report of Uganda’ CRPD/C/UGA/CO/1, 12 May 2016 para
65(a).
21. OHCHR, ‘National Implementation’ (n 13) para 10.
22. Special Rapporteur,‘End of Mission Statement by the Special Rapporteur on her Visit to Canada’, (OHCHR 12 April
2009). ¼24481&LangID¼E> accessed 10
November 2020.
23. OHCHR, ‘National Implementation’ (n 13) para 8.
24. ibid para 10.
25. ibid para 11(a).
26. ibid para 4.
27. OHCHR, ‘Thematic Study’ (n 14) para 32.
28. Janet Lord and Michael Stein, ‘The Domestic Incorporation of Human Rights Law and the UNCRPD’ (2008) 83
Washington Law Review 449, 463.
Caughey 123
coordination structures to include rights-holders.
29
This is in line with earlier guidance on dis-
ability rights focal points. The 1993 ‘Standard Rules on the Equalization of Opportunities for
Persons with Disabilities’ foresaw that ‘national coordinating committees, or similar bodies, to
serve as a national focal point on d isability matters shall be composed of ‘a combination of
representatives of private and public organizations [ ...] drawn from concerned government
ministries, organizations of persons with disabilities and non-governmental organizations’.
30
Most States have decided not to establish coordination mechanisms. As a result, focal points
have taken on both a coordination and implementation role.
31
In its concluding observations on
State reports, the Committee has accepted merged focal points and coordination mechanisms, and
structures including rights-holders.
32
It has, however, called on States to adopt strategies and action
plans that distribute implementation actions to various governmental structures. Similarly, the
Special Rapporteur has advocated for collaborative action plan s to provide for ‘clear lines of
accountability as to which State authorities are responsible for implementing them and in what
time frame’.
33
2.4. SPECIALISED KNOWLEDGE
The CRPD focal point and its staff are required to have technical expertise on the CRPD and to
have knowledge of how government works to effect implementation. For the first time in a human
rights treaty, the Convention requires that ‘States parties undertake to collect appropriate infor-
mation, including statistical and research data, to enable them to formulate and implement policies
to give effect to the present Convention’.
34
Article 31(2) further recognises the role of data to
assess implementation, and identify and address barriers faced by persons with disabilities.
During the negotiation of the CRPD, it was at one point suggested that Article 31 and Article 33
should be merged, and a CRPD focal point should be allocated responsibility for data collection.
35
This proposal was not adopted, but the CRPD Committee has acknowledged the need for CRPD
focal points to develop a good working relationship with Statistical Offices.
36
The CRPD Com-
mittee emphasises that ‘monitoring of the implementation at the domestic level requires collective,
coordinated and continuous efforts by States parties’ national statistical commissions, focal points
and coordination mechanisms’.
37
The process of monitoring implementation therefore requires
29. International Disability Alliance’s Forum for the CRPD, ‘Contribution to the OHCHR Thematic Study’ (policy rec-
ommendations by IDA 2009) 6.
30. UNGeneral Assembly, ‘Standard Rules on the Equalization of Opportunities for Persons with Disabilities’ (1993) UN
Doc A/RES/48/96, Rule 17.
31. Gauthier de Beco, Study on the Implementation of Article 33 of the UN Convention on the Rights of Persons with
Disabilities in Europe (OHCHR 2011) 42.
32. For an overview of arguments and an analysis of the CRPD Committee’s jurisprudence, see: S ´ebastien Lorion ‘A
Model for National Human Rights Systems? New Governance and the Convention on the Rights of Persons with
Disabilities’ (2019) 37(3) Nordic Journal of Human Rights 234.
33. UN Special Rapporteur, ‘Report of the UNSR: Seventy-first session of the United Nations General Assembly’ (2016)
UN Doc. A/71/314, para 67.
34. UN Convention on the Rights of Persons with Disabilities A/RES/61/106 24 January 2007, Article 31.
35. Raley, ‘The Drafting’ (n 5) 143.
36. CRPD Committee, Guidelines on Independent Monitoring Frameworks and their Participation in the Work of the
Committee, 2018.
37. ibid para 36.
124 Netherlands Quarterly of Human Rights 39(2)
partnership across government, and the CRPD focal point is central to fostering and sustaining
these partnerships.
2.5. PERMANENCE OF THE STRUCTURES
CRPD Article 33 does not specifically set out a requirement that Article 33(1) focal points be
permanent. However, the obligation to establish a focal point is not time bound and applies so long
as a State is a party to the CRPD.
It would have provided greater assurance of permanency if the CRPD required States Parties to
place the CRPD focal point or coordination mechanism on a permanent basis. The aforementioned
Standard Rules includes a requirement that a national coordinating committee ‘be permanent and
based on legal as well as appropriate administrative regulations’.
38
The Committee and UN Special Rapporteur have emphasised the importance of States having
permanent arrangements for engaging with civil society, and it is presumed that these arrange-
ments would be centred around the focal point.
39
2.6. PROFESSIONAL STAFF AND RATIONAL ADMINISTRATIVE CAPACITIES
The CRPD Committee has asserted that a CRPD focal point must have capacity to perform its
duties.
40
In its concluding observations on Guatemala, the Committee emphasised the need to
ensure the focal point has ‘sufficient material resources and qualified human resources to perform
its role’.
41
The OHCHR has stressed that the focal points ‘need to be adequately supported in terms
of technical staff and resources’.
42
The OHCHR has not explicitly suggested that focal points should have their own budgets, and
has acknowledged that ‘a support structure’ within a ministry may be the most efficient approach.
However, the OHCHR has emphasised that ‘it may be useful to explicitly recognise the indepen-
dence of the focal point structure from the parent ministry’.
43
Furthermore, the CRPD Committee envisages that a CRPD focal point will develop formal
procedures of engagement and liaison with civil society.
44
The CRPD Committee has also empha-
sised the need for a strategy ‘to coordinate public policies in all areas covered by the
Convention’.
45
38. UN General Assembly (n 30) Rule 17(1).
39. Special Rapporteur, ‘Report of the UN Special Rapporteur on her Visit to the Dominican Republic’, A/HRC/31/62 12
January 2016.
40. CRPD Committee, ‘Concluding Observations on the Initial Report of Slovakia’ CRPD/C/SVK/CO/1 17 May 2016,
para 88.
41. CRPDCommittee, ‘Concluding Observations on the Initial Report of Guatemala’ CRPD/C/GTM/CO/1 29 September
2016, para 76.
42. OHCHR, ‘National Implementation’ (n 13) para 11(d).
43. ibid.
44. CRPD Committee, ‘General Comment No. 7 (2018) on the Participation of Persons with Disabilities, including
Children with Disabilities, through their Representative Organizations, in the Implementation and Monitoring of the
Convention’, CRPD/C/GC/7 9 November 2018, para 35.
45. CRPD Committee (n 20) para 64.
Caughey 125
3. IMPLEMENTATION OR FOLLOW-UP? A COMPARISON OF
CRPD FOCAL POINTS AND NMRFS
Article 33(1) provides that a focal point will be designated for ‘matters relating to the implemen-
tation of the present Convention’. The OHCHR defines implementation as ‘the process whereby
States parties take action to ensure the realization of all rights contained in a given treaty within
their jurisdiction’.
46
Whilst the OHCHR envisages that a CRPD focal point will play a role in
coordinating reporting on the Convention, it emphasises that a focal point should ‘clearly focus on
developing and coordinating a coherent national policy on the Convention’.
47
Due to the broad
scope of the CRPD, a national policy on the CRPD is inevitably one and the same as a national
disability policy.
48
NMRFs are focused on ‘reporting’ to the international and regional human rights system,
and on managing the ‘follow-up’ with a view to ensuring effective implementation of rec-
ommendations. In theory, NMRFs comprehensively cover all ratified treaties, including the
CRPD. The process of implementation is closely related to international reporting and follow-
up. However, they are distinct processes. Whilst implementation is grounded in the domestic
context, reporting and follow-up is grounded in the international system. The OHCHR’s
Guide sets out four types of roles for NMRFs: engagement with UN machineries; coordina-
tion within domestic executive actors involved in reporting and follow-up; consultation with
all stakeholders at the national level; and information management, organised by planning and
measuring activities.
Building on these four identified roles, the following section compares and contrasts the roles of
NMRFs and CRPD focal points.
3.1. ENGAGEMENT WITH INTERNATIONAL HUMAN RIGHTS MECHANISMS
The principal rationale for the development of NMRFs is to facilitate timely reporting to the
international human rights system.
49
Whilst one of the responsibilities of a CRPD focal point is to coordinate State reporting relating
to the CRPD, their establishment does not appear to have led to an increase in compliance with
reporting requirements.
50
In 2018, the OHCHR recorded that the CRPD was the treaty with the
second highest proportion of non-reporting States, with 29%of parties recorded as non-reporting
States parties.
51
One of the suggested roles of an NMRF is the facilitation of visits by experts.
52
We see here how
the roles of NMRFs and CRPD focal points overlap. For instance, whilst the Spanish government
has a CRPD focal point, the Spanish NMRF within the Ministry of Foreign Affairs was responsible
for supporting the CRPD Committee and facilitating its visit for the purposes of a Committee
46. OHCHR, ‘Thematic Study’ (n 14) para 10.
47. ibid.
48. Eilion´oir Flynn, From Rhetoric to Action (Cambridge University Press 2011).
49. OHCHR, ‘Practical Guide’ (n 3) 1.
50. OHCHR, ‘National Implementation’ (n 13) para 11(c).
51. OHCHR, ‘Compliance by States Parties with their Reporting Obligations to International Human Rights Treaty
Bodies’, HRI/MC/2018/2, para 12.
52. OHCHR, ‘Practical Guide’ (n 3) 3.
126 Netherlands Quarterly of Human Rights 39(2)
inquiry.
53
In contrast, when the Committee conducted an inquiry into the UK, the UK CRPD focal
point was responsible for engaging with the Committee and facilitating its visit.
54
In both inquiry
reports the Committee recorded its gratitude to the relevant State for assisting its visit.
The remit of the focal points most significantly overlaps with respect to reporting and
follow-up. The preparation of a State report and follow-up activities can provide an opportunity
for learning. Harold Koh highlights that participation in the international system of human rights
enhances the capacity of States and State officials to become ‘discursively competent’ in human
rights and to develop their ‘internal value set’.
55
Bureaucrats responsible for the examination and
follow-up processes can raise awar eness of human rights amongst fellow policy makers, and
highlight how their work relates to the implementation of the State’s human rights obligations.
In addition, Creamer and Simmons highlight that treaty examinations can ‘set in motion bureau-
cratic routines to gather, authenticate and analyse information that might not have occurred in the
absence of the obligation to report’.
56
CRPD advocates emphasise the importance of such process-
based innovations as the key to successful implementation.
57
If it is the case that treaty examinations and fol low up activities provide opportunities for
learning and procedural innovation, consideration is required as to whether these opportunities
are more likely to be capitalised by bureaucrats working within a CRPD focal point or those within
an NMRF.
58
3.2. INFORMATION MANAGEMENT AND PLANNING
One of the stated roles of an NMRF is ‘data collection and information gathering’ for inclusion in
reports.
59
On the face of it, this role appears straightforward. However, treaty bodies have become
more exacting in their requests for information in preparation for an examination, and will increas-
ingly recommend t hat States Parties develop their d ata collection capacity.
60
This includesthe CRPD
Committee,which has repeatedly encouragedStates to develop human rights basedindicators.
61
The
OHCHR has similarly emphasised the utilisation of indicators within Recommendation Implemen-
tation Plans (‘RIPs’), elaborated by NMRFs to serve as information management tools.
62
Data collection plays a comprehensive role that goes beyond tracking implementation. The
development of indicators is central to implementation planning. Eilion ´oir Flynn has highlighted
that ‘the CRPD implicitly requires the development of future indicators and sets the contours for
53. CRPD Inquiry Concerning Spain under the Optional Protocol CRPD/C/20/3, para 10.
54. CRPD Inquiry Concerning the UK under the Optional Protocol CRPD/C/15/4, para 47.
55. Harold Koh, ‘The 1998 Frankel Lecture: Bringing International Law Home’ (1998) 35(3) Houston Law Review 623,
647.
56. Cossette D. Creamer and Beth A. Simmons, ‘Ratification, Reporting, and Rights: Quality of Participation in the
Convention against Torture’ (2015) 37(3) Human Rights Quarterly 579, 608.
57. Quinn (n 12) 259.
58. Especiallyas NMRF staff are not supposed to be specialists of all human rights normative contents: for a discussion on
this, see article by S´ebastien Lorion in this Special Issue.
59. OHCHR, ‘Practical Guide’ (n 3) 29.
60. Kevin Davis, Benedict Kingsbury and Sally Engle Merry, ‘Indicators as a Technology of Global Governance’ (2012)
46(1) Law & Society Review 71, 84.
61. Mads Pedersen and Federico Ferretti, Art.31 Statistics and Data Collection in Ilias Bantekas, et al (eds), The UN
Convention on the Rights of Persons with Disabilities: A Commentary (Oxford University Press 2018) 939.
62. OHCHR, The National Recommendations Tracking Database
NRTD.pdf> accessed 1 April 2021.
Caughey 127
measuring success in improving the lives of persons with disabilities’.
63
The process of developing
human rights indicators is a complex exercise which requires technical expertise and knowledge of
the inner workings of government. Gauthier De Beco notes that whilst States often invest signif-
icant time in the development of human rights indicators, the indicators often prove unworkable in
practice.
64
The process of developing indicators must be open and transparent. Indicators frame
problems and if the process for their development is not robust and inclusive, they may be
manipulated to present narratives of success.
65
There is also a risk that the utilisation of indicators
will privilege those with technical expertise over the views of rights-holders.
66
State actors respon-
sible for the development of indicators must overcome these obstacles if they are to develop
indicators which go beyond tracking ‘tech nical’ implementation and reflect the realisation of
human rights in practice. In 2020, the OHCHR published a resource package including a set of
human rights indicators on the CRPD presented article by article, with an accompanying guide to
data sources.
67
This resource provides practical guidance for States on the development of indi-
cators which they can adapt to reflect their national contexts.
Data collection serves the dual roles of implementation and monitoring. Given the empha-
sis on reducing the burden which reporting places on States, it would appear most appro-
priate for monitoring activities emerging from the treaty process to be integrated into
domestic monitoring systems.
68
As set out above, this is an issue which the CRPD Commit-
tee has highlighted in guidance on focal points. A CRPD focal point which has knowledge
and expertise in national policy and established processes of engagement with rights-holders
can perform a constructive role in engaging with statistical offices to bring together the
science of indicators with the values and principles of the CRPD.
69
These are attributes
which an NMRF may not exhibit.
During the negotiation of the CRPD, the Australian NHRI proposed the incorporation of an
obligation on ratifying States to develop a National Disability Action Plan (NDAP) on implementation
of the CRPD.
70
Whilst this proposal was not adopted, interest in the utility of NDAPs remains.
71
Jerome Bickenbach highlights that to be effective, rights must be ‘operationalizable’ into policy goals,
whichshouldthenbebrokendowninto‘challengingyetfeasible’targets.
72
An NDAP provides a
policy instrument for the collection of these goals and targets.
63. Flynn ‘From Rhetoric’ (n 48) 34.
64. GauthierDe Beco, ‘Human Rights Indicators: From Theoretical Debate to Practical Application’ (2013) 5(2) Journal of
Human Rights Practice 380, 395.
65. Davis, Kingsbury and Engle Merry, ‘Indicators’ (n 60).
66. Bengt Jacobsson, ‘Standardization and Expert Knowledge’, in Nils Brunsson et al. (eds), A World of Standards (OUP
2000) 40, 46.
67. OHCHR, SDG-CRPD Resource Package: Human Rights Indicators, 2020 available at
Issues/Disability/Pages/SDG-CRPD-Resource.aspx> accessed 1 April 2021.
68. Quinn (n 12) 259.
69. JeromeBickenbach, ‘Monitoring the United Nation’s Convention on the Rights of Persons with Disabilities: Data and
the International Classification of Functioning, Disability and Health, (2011) 11 BMC Public Health 1, 5.
70. MichaelStein and Janet Lord, ‘Monitoring the Convention on the Rights of Persons with Disabilities: Innovations, Lost
Opportunities, and Future Potential’ (2010) 32 Human Rights Quarterly 689, 702 -703.
71. ibid.
72. Bickenbach (n 69).
128 Netherlands Quarterly of Human Rights 39(2)
The OHCHR guide suggests that focal poin ts should be tasked with the development and
implementation of an NDAP.
73
Eilion´oir Flynn highlights that NDAPs can play a valuable role
in facilitating cross-departmental collaboration on the implementation of the CRPD, and can be
used as a policy framework for holding relevant authorities to account.
74
The development and
assessment of goals relating to the CRPD requires technical knowledge of the CRPD, political
perceptiveness and interpersonal skills.
75
The OHCHR’s interest in national action plans hasgivenwaytointerestinRIPs,whichtheOHCHR
considers that NMRFs are well placed to coordinate.
76
Advocates consider that a RIP coordinated by an
NMRF overcomes many of the drawbacks of a national action plan and sectoral plans through using
recommendations from the international system as the principal guide rather than a baseline assess-
ment.
77
We again see here the difference of approaches to compliance which underpin a CRPD focal
point and NMRFs. Advocates of NMRFs consider that recommendations from the international system
provide a blueprint for implementation efforts.
78
CRPD advocates see the CRPD and the international
system as providing a normative framework, the translation of which takes place at the domestic level
through inclusive processes which harness the transformative potential of participation.
79
Such pro-
cesses draw on local knowledge, capacity and creativity. In contrast, the RIP process seeks to restrict
domestic processes which may taint or water down recommendations from the international system.
80
A CRPD focal point embedded in the domestic policy framework is well-placed to grow expertise and
foster the establishment of rational capacities to facilitate the development of national plans and the
application of workable indicators.
3.3. CONSULTATION WITH OTHER STAKEHOLDERS
It is suggested that NMRFs will share information and ensure the involvement of a number of
stakeholders in implementation and reporting. The OHCHR practical guide emphasises the need to
ensure they have capacity to engage with civil society and other stakeholders. Advocates of NMRFs
suggest that they can democratise the implementation process through involving civil society.
81
73. OHCHR, ‘National Implementation’ (n 13) para 10.
74. Flynn (n 48) 254.
75. MichaelMintrom, ‘The Policy Analysis Movement’, in Laurent Dobuzinskis, David H. Laycock and Michael Howlett
(eds) Policy Analysis in Canada: The State of the Art (University of Toronto Press 2005) 145, 146.
76. OHCHR, ‘Practical Guide’ (n 3) 25.
77. Marc Limon and Ellis Paterson, ‘The Emergence and Coming of Age of NMRFs’ (Universal Rights Group Blog 27
March 2019)
mentation-reporting-and-follow-up/> accessed 9 November 2020.
78. Report of the UN High Commissioner for Human Rights, UN Doc. A/66/86, p. 5.
79. Sarah Arduin, ‘Taking Metaregulation to the United Nations Human Rights Treaty Regime: The Case of the Con-
vention on the Rights of Persons with Disabilities’ (2019) 41(4) Law & Policy 411, 419.
80. For a similar point and a detailed review of the CRPD Committee’s approach to national action plans, see S´ebastien
Lorion, National Human Rights Action Plans: A Review of State Practices, International Guidance and Conceptual
Evolutions (The Danish Institute for Human Rights 2021, forthcoming).
81. Norway Ministry of Foreign Affairs, ‘Global Human Rights Implementation Agenda: The Role of International
Development Partners’ (Oslo, 20 April 2018) para. 4
human-rights-implementation-agenda-the-role-of-international-development-partners/> accessed 1 April 2021
Caughey 129
However, Sarkin suggests that ‘in many countries, these institutions generally remain closed, opaque
and largely unknown outside the government’.
82
CRPD Article 4(3) requires States to consult with and actively involve persons with disabilities
in the development and implementation of legislation and policies to implement the CRPD. The
CRPD envisages a central role for a focal point in facilitating the participation of persons with
disabilities in the co-production of policies.
83
Co-production is a broad concept which emphasises
collaborative interaction on public policy from a broad range of actors both inside and outside of
government through networks and partnerships.
84
The UN Special Rapporteur emphasises that the
duty towards persons with disabilities ‘stretches beyond consultation and access to public decision-
making spaces and moves into the area of partnership, delegated power and citizen control’.
85
Co-production allows public bureaucracies to draw on the policy capacity of organisations outside
of government.
86
CRPD advocates emphasise the transformative potential of participation.
87
Through facilitating the participation of persons with disabilities in public policy production, a
CRPD focal point can ensure the development of policies which genuinely implement the CRPD.
Waldschmidt and others highlight that the CRPD creates ‘new conditions for strengthening the
political influence of persons with disabilities’.
88
A CRPD focal pointcan facilitate the development
of a more routinised relationshipwith government which isself-sustaining.
89
The creation of a public
body whose remit is clearly related to an interest group constituency has been shown to have an
empowering effecton the constituency.
90
Whether a body which has a general remit with respect to
human rights reporting can have a similarly empowering effect has not been clearly demonstrated.
3.4. COORDINATION OF EXECUTIVE ACTORS INVOLVED IN IMPLEMENTATION
The development of the CRPD focal point was in part motivated by a realisation that persons with
disabilities are particularly ill-served by silo ways of working within government.
91
A CRPD focal
82. Jeremy Sarkin, ‘The 2020 United Nations Human Rights Treaty Body Review Process: Prioritising Resources,
Independence and the Domestic State Reporting Process over Rationalising and Streamlining Treaty Bodies’ (2020)
The International Journal of Human Rights 16.
83. Special Rapporteur, Report of the Special Rapporteur on the Rights of Persons with Disabilities: Thirty-first
Session of the Human R ights Council (UN Doc A/HRC/31/62, 2016) para. 63; R. Kayess and P. Fre nch, ‘Out of
Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8(1) Human
Rights Law Review 1.
84. TonyBovaird, ‘Beyond Engagement and Participation: User and Community Coproduction of Public Services’ (2007)
67(5) Public Administration Review 846.
85. Special Rapporteur (n 83), para. 63.
86. George Anderson, ‘The New Focuson the Policy Capacity of the Federal Government’ (1996) 39(4) Canadian Public
Administration, 469.
87. Stacy Clifford, ‘Making Disability Public in Deliberative Democracy’ (2012) 11 Contemporary PoliticalTheory 211,
220.
88. Anne Waldschmidt, Andreas Sturm, Anemari Kara ˇcic´ and Timo Dins, ‘Implementing the UN CRPD in European
Countries’ in Rune Halvorsen, Bjørn Hvinden, Jerome Bickenbach, Delia Ferri, Ana Marta Guill´en Rodriguez (eds)
The Changing Disability Policy System Active Citizenship and Disability in Europe (Routledge 2017) 178.
89. Meyer and Tarrow, The Social Movement Society (Rowman & Littlefield Publishers 1997) 21.
90. Richard K. Scotch, ‘Politics and Policy in the History of the Disability Rights Movement’ (1989) 67(2) The Milbank
Quarterly 380.
91. Gerard Quinn, ‘The UNCRPD: Toward a New International Politics of Disability’ (2009) 15 Texas Journal on Civil
Liberties & Civil Rights 33, 34.
130 Netherlands Quarterly of Human Rights 39(2)
point is therefore focused on the co-ordination of executive actions of relevance to the implemen-
tation of the CRPD.
The OHCHR guide on NMRFs sets out a specific role for an NMRF in clustering recommen-
dations and working with relevant depart ments to identify required actions and monitor their
delivery. The reality of implementing treaty body recommendations is somewhat more complex.
Treaty body recommendations are rarely actionable without significant development. This is
particularly the case in the context of the CRPD, where three factors complicate the implemen-
tation of recommendations from the CRPD Committee.
First, the language of the CRPD is open-textured. Gr´ainne de B´
urca highlights that the CRPD
was ‘deliberately defined in broad and open-ended ways’, which call for interpretation and ela-
boration when they are implemented in practice.
92
A compounding factor is that the recommen-
dations which emerge from the Committee’s examinations tend to be of a similarly general nature.
Indeed, the CRPD Committee has been criticised for failing to guide States on how proposed
reforms ought to take place.
93
Second, the development of policy measures to address disability discrimination are largely
context specific and need to be informed by the lived experience of persons with disabilities.
94
Whilst the Committee can provide unique insights into the requirements of the Convention, the
precise design of policy measures to realise their implementation requires inputs from those with
practical experience.
Third, effective implementation is complicated by the fact that many of the challenges persons
with disabilities face are complex and may be classed as ‘wicked problems’. ‘Wicked problems’
are defined as ‘multifaceted policy problems [which] defy simple solutions and straddle the
borders of organizations and ministerial areas of responsibility as well as administrative levels’.
95
The crafting of policy solutions requires detailed consideration of domestic factors.
A public body with human rights expertise cannot develop workable policy solutions alone, and
instead must work alongside other government departments and agencies to develop solutions. The
role of a CRPD focal point in coordinating disability policy has been extensively discussed. This
discussion brings to the fore the dilemma of developing an appropriate strategy for the coordina-
tion of implementing human rights obligations across government which all human rights focal
points will face. Namely, the question of whether the focal point should seek to develop itself as an
authority which can require or compel action by other departments or bureaucrats, or if instead it
should position itself as a persuader and influencer.
A number of sources suggest that CRPD focal points be positioned to direct action by other
departments and to call them to account for their failure. The OHCHR Handbook for Parliamen-
tarians suggests that the ‘national focal point(s) should coordinate the activities of various minis-
tries with regard to disability rights; draw up, revise, or amend the relevant regulations’.
96
Quinn
and Crowther highlight that ‘it is critical that the focal point has the authority to lead and
92. Gr´ainne de B´
urca, ‘Human Rights Experimentalism’ (2017) 111(2) American Journal of International Law 277, 283.
93. JanetLord and Michael Stein, ‘The Committee on the Rights of Persons with Disabilities’ in Philip Alston and Fr ´ed´eric
M´egret (eds) A Critical Appraisal (2nd Edition OUP 2020) 547, 576.
94. Lisa Vanhala, ‘The Diffusion of Disability Rights in Europe’ (2015) 37 Human Rights Quarterly 833.
95. Per Lægreid, Tiina Randma-Liiv, Lise H. Rykkja and Ku€lli Sarapuu ‘Emerging Coordination Practicesof European
Central Governments’ (2015) 81(2) International Review of Administrative Sciences 346.
96. UnitedNations, ‘From Exclusion to Equality: Realizing the Rights of Persons with Disabilities’, October 2007, No 14-
2007.
Caughey 131
coordinate government wide initiatives’.
97
Most significantly, the UN Special Rapporteur has
indicated that the focal point as ‘the State entity overseeing the national strategic plans on dis-
ability inclusion must have the authority to initiate investigations and recommend sanctions to both
State and private entities who fail to implement them’.
98
This approach appears at odds with the general view that persuasion is the more effective
approach to realising human rights implementation.
99
In line with this perspective, States tend
to emphasise the role of focal points in promoting rather than requiring coordination (for example,
this is the case for the UK, as shown below in sub-section 3.3). The CRPD Committee has not
reconciled these positions through its concluding observations, at times suggesting that a focal
point play a role in ensuring the ‘accountability of government departments’,
100
and at other times
suggesting a promotional role.
101
All GHRFPs will require strategies to obtain cooperation and buy-in from policy makers
throughout government. Public policy theorists highlight that bureaucrats are often limited by
bounded rationality, which includes the ‘inability to separate values from facts in any meaningful
way, or rank policy aims in a logical and consistent manner’.
102
Love and others note that the
CRPD calls for a ‘fundamental realignment of the accepted and ingrained norms and procedures
that have dictated how disability policy is made and who gets to participate in that process’.
103
A
CRPD focal point performs a central role in changing underlying values within the broader
bureaucracy in line with the CRPD, and in encouraging bureaucrats to appreciate the value of
ensuring the effective inclusion of persons with disabilities in developing public policy.
104
In contrast, an NMRF and its staff are guided by the implementation of recommendations from
the international system and their practical application. The language used in the OHCHR guide
suggests that these recommendations will be applied in a neutral and impartial manner, and that the
tasks to be performed by an NMRF are principally procedural in nature.
105
It is not suggested that
NMRFs will attempt to socialise and persuade policy makers, or substantively change their ways of
working.
The more ambitious remit of a CRPD focal point, which is focused on culture change, may in
fact make it better placed to foster coordination throughout government.
106
This view reflects that
of human rights theorists who emphasise the importance of norm entrepreneurs in bringing about
culture change across government bureaucracies.
107
Whilst norm entrepreneurs are seen as central
to bringing about compliance there is a lack of empirical evidence on how they go about this.
97. Asia Pacific Forum of National Human Rights Institutions, Human Rights and Disability: A Manual for National
Human Rights Institutions (2017) 90.
98. Special Rapporteur, Report to the Seventy-first Session of the UN GA (2016) UN Doc A/71/314, para 68.
99. Koh (n 55).
100. CRPD Committee (n 20).
101. CRPDCommittee, ‘Concluding Observations on the Initial Report of Ethiopia’ CRPD/C/ETH/CO/1 31 August 2016,
para 71.
102. Paul Cairney, ‘The Myth of ‘‘Evidence-Based Policymaking’’ in a Decentred State’ (2020) 0(0) Public Policy and
Administration 1, 4.
103. LaufeyLove, Rannveig Traustadottie & James Rice, ‘Shifting the Balance of Power: The Strategic Use of the CRPD
by Disabled People’s Organizations in Securing a Seat at the Table’ (2019) 8 Laws 1.
104. M. Howlett, ‘The Supply and Demand for Policy Analysis in Government’ (2015) 34 Policy and Society 173, 174.
105. OHCHR, ‘Practical Guide’ (n 3) 22.
106. OHCHR, ‘National Implementation’ (n 13) para 10.
107. Koh (n 55).
132 Netherlands Quarterly of Human Rights 39(2)
Gauthier De Beco and Alexander Hoefmans suggest that CRPD focal points should establish
themselves as an ‘expertise centre for all government actors when it comes to the CRPD and its
implementation’.
108
This view reflects the premise that expertise brings power. While this premise
underpins a number of approaches to understanding public policy, Page highlights that expertise is
often not the principal factor which generates influence.
109
Kingdon and other policy analysts
stress the importance of influencers having persuasive power and an ability to capitalise on
political opportunities.
110
A thematic focal point with policy expertise and a knowledge of the
political context, including the dynamics in relevant interest groups, is arguably better placed than
a general NMRF to effect change. The question of how institutional agents socialise and persuade
government bureaucracies towards human rights principles and values is pertinent to the devel-
opment of all GHRFPs, and warrants further research and analysis.
In summary, this section has identified how the role allocated to a CRPD focal point is more
expansive than that allocated to an NMRF. A CRPD focal point is to be a socialiser and influencer
of the general bureaucracy and to facilitate the participation of persons with disabilities. The role of
a CRPD focal point clearly overlaps with that proposed for an NMRF. There are a number of
features of a CRPD focal point which suggest that it is better placed to take on the role of reporting
and follow-up relating to the CRPD. However, a thorough examination is hindered by the lack of
empirical evidence on the effectiveness of either CRPD focal points or NMRFs.
4. THE UNITED KINGDOM’S CRPD FOCAL POINT AS A CASE
STUDY
The UK has a developed disability and human rights law framework, having enacted comprehen-
sive anti-discrimination legislation specific to persons with disabilities in 1995.
111
The UK gov-
ernment also has a history of developing innovative approaches to coordinate and join up
government activities across departments, in particular through the development of implementa-
tion units.
112
The experience of the UK provides an interesting insight into the role of a focal point
in international monitoring; in promoting changes across government; and in facilitating the
participation of persons with disabilities.
4.1. ESTABLISHMENT OF THE UK CRPD FOCAL POINT
At the time of ratification of the CRPD, the Office for Disability Issues (ODI) within the Depart-
ment for Work and Pensions was designated as the CRPD focal point. This body was established in
2005 with a remit focused on ensuring effective joined-up working across government to improve
108. Gauthier De Beco and Alexander Hoefmans, ‘National Structures for the Implementation and Monitoring of the UN
Convention on the Rights of Persons with Disabilities’ in Gauthier de Beco (ed), Article 33 of the UN Convention on
the Rights of Persons with Disabilities: National Structures for the Implementation and Monitoring of the Convention
(Brill 2013) 9, 30.
109. Edward Page ‘Bureaucrats and Expertise: Elucidating a Problematic Relationship in Three Tableaux and Six Jur-
isdictions’ (2010) 52(2) Sociologie du Travail 255, 271.
110. Jon Kingdon, Agendas, Alternatives and Public Policies (2nd ed. Harper Collins 1995).
112. EvertLindquist, ‘Organising for Policy Implementation: The Emergence and Role of Implementation Units in Policy
Design and Oversight’ (2006) 8(4) Journal of Comparative Policy Analysis 311.
Caughey 133
the life chances of persons with disabilities.
113
In line with a government commitment to develop a
new national disability strategy, the ODI was abolished and subsequently replaced by the Dis-
ability Unit in 2019.
The establishment of the Disability Unit -which sits within the UK Cabinet Office – was
welcomed by the disability movement as reflecting OHCHR guidance that a focal point should
be at the highest possible level of government.
114
The Cabinet Office is the department which
usually takes responsibility for the implementation of strategic cross-departmental aims.
115
As a unit within a government department, the Disability Unit does not have a distinct
legal base. The establishment of the Disability Unit was effected by way of a written sta te-
ment from the UK Prime Minister to the House of Commons.
116
Coordinating implementation
of the Convention is not included as one of the four responsibilities of the Disability Unit.
117
However it should be noted that one of the responsibilities of the Unit is to support the work
of the Minister for Disabilities, who co-ordinates the Inter-Ministerial Group on Disability and
Society which is intended to ‘to drive coordinated action across government, and implement
the UNCRPD’.
118
4.2. REPORTING AND FOLLOW-UP
The UK CRPD focal point has taken on the role of coordinating reporting and follow-up relating to
the CRPD. The UK is one of a small number of States which are recorded as being 100%compliant
with human rights reporting obligations.
119
Therefore, the necessity for it to develop an NMRF is
not evident. The UK government approach to human rights monitoring can perhaps be charac-
terised as a mainstreaming approach. This means that responsibility for developing reports and
follow-up is distributed to relevant departments rather than centralised within one body.
The ODI coordinated the UK input to the CRPD Committ ee’s inquiry into social security
reform and to the CRPD Committee’s periodic review of the UK.
120
The head of the ODI led the
UK delegation during the examina tion process. The delegation included representativ es from
across a range of departments who were there in person or participated via video conference.
121
The composition of the delegation and the use of video conferencing was clearly intended to ensure
that the Committee members received substantive responses to their questions.
113. Prime Minister’s Strategy Unit, ‘Improving the Life Chances of Disabled People’ (London: HMSO, 2005).
114. OHCHR, ‘National Implementation’ (n 13) para 11(b).
115. Mathew Flinders, ‘Governance in Whitehall’ (2002) 80 (1) Public Administration 51, 59.
116. PrimeMinister Written Statement, ‘Machinery of Government Change’ (The Office for Disability Issues HC Deb, 25
June 2019, cWS).
117. Disability Unit, ‘About Us’ accessed 9 November
2020.
118. Office for Disabilities, ‘Fulfilling Potential: Outcomes and Indicators Framework: Second Annual Progress Report’,
November 2015, 2.
119. OHCHR, ‘Treaty Bodies Database’ (June 2019)
pliance.pdf> accessed 7 November 2020.
120. CRPD Committee, ‘Concluding Observations on the Initial Report of the United Kingdom’ CRPD/C/GBR/CO/1 3
October 2020.
121. UK Government, ‘Opening Statement’, INT/CRPD/STA/GBR/28676/E, 23 August 2017.
134 Netherlands Quarterly of Human Rights 39(2)
The ODI live-streamed the examination process and invited stakeholders to attend an event at
their offices to watch the examination.
122
This initiative was positively noted by the CRPD
Committee Rapporteur on the UK.
123
This provides an example of how a CRPD focal point which
is connected with domestic civil society actors can localise and provide visibility of treaty body
examinations.
The reports and inputs developed by the UK focal point during both the initial examination and
inquiry process were broadly conclusive and addressed questions raised by the Committee. In its
response to the Committee’s inquiry, the UK government expressed strong disagreement with the
Committee’s recommendations. However, the response addressed each of the recommendations
and provided substantive detail of the government’s position.
124
The CRPD focal point has continued to coordinate follow-up reporting. In its 2017 con-
cluding observations, the Committee identified four concluding obs ervations which the UK
government was asked to report on within one year.
125
In addition, the Committee recom-
mended that the UK report to the Committee on implementation of the Inquiry report rec-
ommendations annually.
126
The UK government has complied with these follow-up reporting requirements, with sub-
stantive reports submitted on time. Indeed, on occasion the government has gone beyond its
specific obligations. In its 2018 follow-up report, the Minister for Disabilities provided a sub-
stantive covering note setting out broader information on UK disability policy.
127
The 2019
report provided holistic detail on the issue of social security reform.
128
The imposition by the
Committee of an obligation to produce an annual progress report on social security reforms has
clearly led to the UK focal point putting in place bureaucratic evidence-gathering and data
collection processes to ensure compliance. In addition, the UK focal point has used the reports
to inform stakeholders, promoting the reports online and producing an easily readable version of
the 2019 progress report.
129
The CRPD Committee has not published substantive comments on either the 2018 or 2019
reports. This apparent inaction by the Committee underscores a concern that if domestic imple-
mentation processes are to take their lead from the treaty body system, delays within this system
will impact adversely on domestic implementation efforts.
130
122. DisabledPeople Against Cuts, ‘ODI Live Streaming of Periodic Examination of the UK by UN Disability Committee’
(27 July 2017)
accessed 5 November 2020.
123. OHCHR, ‘Committee on the Rights of Persons with Disabilities Reviews Report of the United Kingdom’
(24 August 2017) ohchr.org/EN/NewsEvents/Pag es/DisplayNews.aspx?NewsID ¼21993&LangID¼E>
accessed 7 November 2020.
124. UKGovernment, ‘Observations on the Report of the CRPD Committee under the Optional Protocol’ CRPD/C/17/R.3,
3 November 2016.
125. CRPD Committee (n 120), para 73.
126. ibid para 74.
127. UK Government, ‘Follow-Up to the Concluding Observations’, CRPD/C/GBR/CO/1/Add.1, 3 June 2019.
128. ODI, ‘Progress Report on the UK’s Vision to Build a Society which is Fully Inclusive of Disabled People’ October
2019.
129. ODI,‘The Government’s Report to the United Nations about the Rights of Disabled People 2019 Easy Read Version’,
October 2019.
130. AslanAbashidze and Aleksandra Koneva, ‘The Process of Strengthening the Human Rights Treaty Body System: The
Road towards Effectiveness or Inefficiency?’ (2019) 66 Netherlands International Law Review 357.
Caughey 135
4.3. THE PROMOTION –AUTHORITY DILEMMA IN PRACTICE
During a recent parliamentary inquiry on disability, a number of stakeholders expressed frustration
that the CRPD focal point had not been effective in directing coherence throughout government
and across government departments on CRPD implementation.
131
The head of the UK focal point
informed the inquiry that it had a role in ‘challenging others to take account of the needs of
disabled people and to involve them in matters that impact on them’.
132
However, the head of the
focal point made clear that it is ‘not a policing forum’ and had ‘no powers to require other
departments to do things’.
133
The view that the UK’s CRPD focal point should take on an authoritarian role directing
activities across government departments was perhaps never a realistic prospect. This is under-
scored by the fact that the Minister for Disabilities, who has direct responsibility for the focal point,
is a Parliamentary Under Secretary of State -effectively the lowest rank for a UK Minister. At a
bureaucratic level, political scientists have highlighted that the UK Civil Service tends to focus on
the construction of consensual solutions to cross-government issues rather than the imposition of
solutions.
134
This approach is reflected in the UK government’s description of the role performed
by the focal point within its initial report to the CRPD Committee. The government stated that the
role of the focal point is to ‘help government policy departments that are responsible for the
delivery of Convention rights in their policy areas, to ensure that they are aware of the obligations
of the Convention, and consider them as they develop new legislation, policies and
programmes’.
135
This quote raises a query relating CRPD focal points, namely whether they should provide
advice to departments on specific policies or bills, or if instead they should focus on government or
departmental strategies relating to the CRPD.
The UK has pioneered the development of equality impact assessments within the policy
development process -a mechanism for assessing the impact of a proposed policy or bill on
numerous protected groups, including persons with disabilities.
136
Given the focal point’s knowl-
edge of the CRPD and relationship with persons with disabilities, it could provide informative
inputs to such assessments. Unfortunately, guidance on conducting equality impact assessments
does not suggest that public authorities should seek the views of the focal point.
137
The role of the
focal point in the UK policy development process is somewhat unclear, and it appears that
opportunities for its integration are not being seized.
The CRPD focal point has been criticised for failing to comment on specific issues affecting
persons with disabilities. For instance, a numbe r of disabled persons organisations have been
critical of the focal point for failing to issue guidance or make substantive comments during the
131. The Select Committee on the Equality Act 2010 and Disability Inquiry, ‘Neil Crowther and Nick O’Brien – Oral
Evidence’ (QQ 157-165) 316.
132. The Select Committee on the Equality Act 2010 and Disability, ‘Inquiry Evidence Session No. 1 Heard in Public
Questions 1 – 13’, 7 July 2015, p. 3.
133. ibid p. 7.
134. Edward Page and Bill Jenkins, Policy Bureaucracy: Government with a Cast of Thousands (OUP 2005).
135. UK Government, ‘Initial Report on UNCRPD’, CRPD/C/GBR/1, para 349.
136. Houseof Commons Library, ‘The Public Sector Equality Duty and Equality Impact Assessments’, Number 06591, 8
July 2020.
137. Equality and Human Rights Commission, Meeting the Equality Duty in Policy and Decision-Making: England (And
Non-Devolved Public Authorities in Scotland and Wales) 2014.
136 Netherlands Quarterly of Human Rights 39(2)
coronavirus pandemic.
138
The CRPD focal point has also been notably absent from a number of
key policy discussions. In particular, the CRPD focal point did not appear to input to a post-
legislative inquiry into the Mental Capacity Act 2005.
139
The inquiry raised substantive concerns
that the empowering ethos of the Act was undermined due to paternalistic attitudes across gov-
ernment bureaucracies -the very practices which focal points should be seeking to address.
In the UK context, the potential for the Disability Unit to establish itself as a body which
provides technical expertise on the CRPD is limited due to the trend for UK civil servants to be
generalists rather than specialists.
140
Reflecting this approach, the UK focal point has tended to be
focused on the development and implementation of national strategies or NDAPs, rather than the
provision of technical advice. Whilst such tasks require a degree of technical expertise, they also
require ‘political perceptiveness and well-developed interpersonal skills’.
141
Throughout 2020, the Disability Unit has been seeking to progress with the development of a
new national disability strategy. In doing so, the Unit has sought to promote new ways of working
and to challenge the disjointed and descriptive manner in which departments collate disability
data.
142
The proposed new national strategy will pr ovide an opportunity for a joined-up data
collection system, which will provide a clear overview of the lived experience of persons with
disabilities. Such a system can provide an accurate account of the experience of persons with
disabilities to inform the development of rational policy.
143
The Unit has not yet explicitly set out how the strategy will integrate the CRPD reporting
requirements. Aligning the strategy with the obligation to submit annual progress reports and
periodic reports to the CRPD Committee would assist both in localising the Convention and in
reducing the reporting burden on the State.
4.4. FACILITATING THE VOICE OF PERSONS WITH DISABILITIES
The Disability Unit is responsible for ‘bringing the views, insights and lived experience of disabled
people to the centre of policy making’.
144
In July 2020, the Disability Unit established the Disabled
People’s Organisations Forum (‘the Forum’). The Forum is intended to place the ‘expertise of
disabled people into the heart of government policy making’.
145
The Forum is composed of
disabled peoples’ organisations and repres entatives from eight regional stakeholder networks,
138. DisabilityNews Service, ‘Coronavirus: ‘Scandalous’ Silence of Government’s Disability Unit as Thousands Die’, 16
July 2020
sands-die/> accessed 7 November 2020.
139. UKHouse of Lords, ‘House of Lords Select Committee on the Mental Capacity Act 2005 Report of Session 2013–14
Mental Capacity Act 2005: Post-Legislative Scrutiny’, 13 March 2014 HL Paper 139.
140. Page (n 109) 266.
141. Mintrom (n 75).
142. Presentation by Marc Verlot to DARE Public Event, ‘Engaging Disability Research for Policy Reform’, 29 October
2020 ¼UXmypsF08Cg&feature¼youtu.be> accessed 9 November 2020.
143. Quinn (n 12) 254.
144. Disability Unit, ‘About Us’ available at:
accessed 30 March 2021.
145. DisabilityUnit, ‘Disabled People’s Organisations (DPOs) Forum Launches this Month’ (20 July 2020)
government/news/disabled-peoples-organisations-dpos-forum-launches-this-month> accessed 30 March 2021.
Caughey 137
which the Unit also administers.
146
Importantly, there is a strong emphasis on the membership
reflecting the lived experience of persons with disabilities.
The success of the Forum will be largely dependent upon the ability of Unit staff to create an
enabling environment in which persons with disabilities can formulate their positions. Within such
an environment, the Unit staff can share their expertise on ways of working within government and
the priorities of fellow policy-makers. Such insights can greatly assist persons with disabilities in
framing their policy positions in a manner which resonates with policy-makers throughout
government.
147
Whilst a CRPD focal point as part of government bureaucracy is limited in its ability to
influence the political priorities of government, a focal point can indirectly influence the political
priority afforded to disability issues through facilitating the participation of persons with disabil-
ities. Scharpf highlights that ‘policy formulation and policy implementation are inevitably the
result of interactions among a plurality of separate actors with separate interests, goals and stra-
tegies’.
148
The Forum clearly has potential to empower persons with disabilities in the policy
context.
5. CONCLUSION
The analysis set out in this article is intended to contribute to and stimulate general discussions on
the role of GHRFPs. Whilst it has long been accepted that committed bureaucrats are key to
bringing about human rights compliance through socialising and persuading their colleagues, there
is limited exploration of how they go about doing so. This article and the present special issue seek
to address this need. Analysing empirical evidence on the practical effects of GHRFPs will facil-
itate the identification of best practice, and ultimately improve the performance of both CRPD
focal points and NMRFs.
As the OHCHR continues to promote the adoption of NMRFs, the appropriateness of compre-
hensive structures covering all rights and focused on human rights reporting and follow-up requires
consideration. Concerns have been raised that clustering treaty body examinations may undermine
the fundamental and specific nature of the individual Conventions.
149
These concerns are of
relevance to the development of NMRFs and are particularly pertinent with respect to the CRPD.
As outlined, the CRPD focal point is the most developed of all thematic GHRFPs. Its devel-
opment was influenced by a number of unique attributes of the CRPD, which make it necessary for
the State to establish structures to promote culture change within government and to facilitate the
participation of persons with disabilities in the co-production of policies.
The assessment of the UK demonstrates that CRPD focal points are still in the process of
developing themselves and new approaches across government to effect change. It also
146. Disability Unit, ‘Regional Stakeholder Network to Give Disabled People a Stronger Voice’ (2 April 2020)
30 March 2021.
147. Richard Freeman, ‘Epistemological Bricolage How Practitioners Make Sense of Learning’ (2007) Administration &
Society 39(4) 476, 480.
148. FritzScharpf, ‘Interorganizational Policy Studies: Issues, Concepts and Perspectives’, in Kenneth Hanf and Fritz W.
Scharpf (eds) Interorganizational Policy Making: Limits to Coordination and Control (Sage 1978) 347.
149. Abashidze and Koneva (n 130), 382.
138 Netherlands Quarterly of Human Rights 39(2)
demonstrates that they have the ability to trans late the norms within the CRPD into national
policies in a way that is simply not open to NMRFs.
It is important for advocates of NMRFs to acknowledge the risk that their development may
undermine CRPD focal points and innovative processes which they have developed. Replacing
them with processes that may be administratively more efficient might stifle the transformative
potential of international monitoring.
The structural changes needed to bring about human rights compliance requires gradual trans-
formation. The absence of empirical evidence on the activities and impact of the work of CRPD
focal points prevents a full assessme nt of the implications of the growth of NMRFs. This is
something which the CRPD Committee should seek to address in its dialogue with States. GHRFPs
clearly have potential to transform domestic ways of working. However, their development must
be underpinned by a coherent strategy which accepts that a one size fits all approach will not work
in every jurisdiction.
Declaration of conflicting interests
The author(s) declared no potential co nflicts of interest with respect to the research, authorship, and/or
publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publi-
cation of this article: This work was supported by the European Union’s Horizon 2020 research and innova-
tion programme under the Marie Skłodowska-Curie Grant Agreement No. 814249.
ORCID iD
Colin Caughey https://orcid.org/0000-0002-9414-6566
Caughey 139
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