Chief Executive of the Scottish Arbitration Centre and Co-Vice Chair of the IBA Access to Justice and Legal Aid Committee, Andrew Mackenzie attended IBA Sydney last month where a new report, Access to justice for people with disabilities: From international principles to practice was presented at the working session, Access to justice for persons with disabilities: an international review. The report was commissioned by the Committee and was researched and written by the Bingham Centre for the Rule of Law, part of the British Institute of International and Comparative Law. highlights that lawyers, the wider legal community and governments could and should be doing more to help protect the rights of people with disabilities.
Around one billion people, 15% of the global population, have some form of disability and experience discrimination in many areas of life, exacerbated by the barriers they face in accessing justice. The aim was to research the issues concerning access to justice for people with disabilities around the world, so the report looks at examples from various jurisdictions. It is clear that more needs to be done to break down some of the additional barriers to access to justice often faced by those with disabilities and it is hoped that this report will raise awareness of these issues and ultimately lead to enhanced access to justice for some of the more vulnerable in our society.
Amongst the main findings of the report, were that crime against people with disabilities appears to be significantly underreported and more should be done to encourage greater reporting to ensure that policy in this area is based on accurate evidence. It was also found that, whilst litigation can effectively help overturn discriminatory laws by intervening at an early stage, there is a need to ensure that laws that may have a negative impact against people with disabilities do not enter the statute books. Furthermore, litigation can only have a wider impact on discriminatory laws or practices where these can be evidenced and that requires data, yet data gathered by many countries does still not include a break down in relation to people with disabilities.
The report also found that, in many countries where people with mental disabilities are deemed unfit to stand trial they are still deprived of their liberty through enforced hospitalisation and this is in conflict with human rights law. Further research and investigation is therefore needed in order to resolve the conflicts between denial or restriction of legal capacity and human rights, with reference to different legal systems around the world. The treatment of, and communication with, people with disabilities during judicial proceedings are usually covered by voluntary guidelines. It was found that these are applied, at best, in an ad hoc fashion. These need to be strengthened into codes of practice to ensure consistency and structure and to make them binding. Also, importantly, it was found that new technologies and the development of online dispute resolution can help people with disabilities overcome marginalisation in the justice system. Governments and the legal community should be open to the benefits that these technologies provide.
Whilst at the annual IBA Conference in Sydney, Andrew presented at a session on how Online Dispute Resolution can benefit persons with disabilities. Brandon Malone, Chairman of the Scottish Arbitration Centre, also attended and IBA Sydney was a great opportunity to discuss arbitration and the role of the Scottish Arbitration Centre with colleagues and members of the legal profession internationally.