Holyrood needs to look like the country it is representing
While the first piece of legislation in the UK which covered all disabled people was the Chronically Sick and Disabled Persons Act 1970 (CSDP), Section 29 of the National Assistance Act 1948 introduced the notion of a disability register or register of disabled persons.
The CSDP introduced a number of obligations for local authorities to meet the needs of disabled people and for the first time set out key services and assistance which, at least on paper, disabled people could expect from their local authority. The Act, while important in UK disability history, did not see the mass empowerment of disabled people as its introducer first envisaged. Budgets were relatively meager and the impact of services provided was limited.
Fast forward 25 years to 1995 and we see the introduction of the Disability Discrimination Act (DDA) on the back of sustained and imaginative protests from disabled people who felt that the patchwork of disability related legislation did not serve them well, if at all. While some local authorities (predominantly in England) still have a form of disability register, this is more about the recording of care needs to allow the council to plan services and calculate budgets.
The DDA introduced a standard definition of disability as being "a physical or mental impairment which has a substantial and long-term adverse effect on [the persons] ability to carry out normal day-to-day activities." Amongst other things, the Act made it unlawful to discriminate against disabled people in connection with employment, the provision of goods, facilities and services or the disposal or management of premises. The DDA was repealed and replaced by the Equality Act 2010. Section 6 of the Equality Act 2010 defines a disability in the same terms as the DDA and is still the definition used and with which claims are considered. 'Long-term’ means that the condition must last, or be likely to last, for more than 12 months, or is likely to last for the rest of the life of the person affected.
There is no formal mechanism in law in any of the constituent countries of the UK by which an individual achieves 'registration' or is declared to be a disabled person, or a person with disabilities. Some erroneously point to Personal Independence Payment (and its predecessor Disability Living Allowance - DLA) and say that achieving an award of those benefits are a means to allow the identification of those who are a "genuinely" or a "real" disabled person. Personal Independence Payment (PIP) is awarded to those who can demonstrate that they are disabled and that their disability gives rise to a need for additional support or assistance in order to carry out day to day tasks.
The application process for PIP requires disabled persons or their carers or advocates to demonstrate the additional needs the applicant has and to link them to various activities. Many applicants will also be required to submit medical evidence and will be called to an assessment or medical which is conducted by a healthcare professional on behalf of the Department for Work and Pensions.
Deciding to apply for PIP (or not) is a decision for the disabled person and does not mean the individual is not disabled, nor does it mean that their disability is not serious or has a limited impact on their life. The PIP application and assessment process is gruelling, can be extremely distressing and can have an significant and sustained impact on an applicant and their family.
Disabled people in the UK identify themselves as such and while they may have medical evidence which corroborates their disability and the additional support needs they may have, it would be wholly inappropriate and discriminatory to insist that a person proffer this evidence to be considered as disabled for the purposes of the Equalities Act 2010. There have been a number of cases within which courts have held that a condition meeting the definition above need not be clinically well recognised to be considered a disability. The Equality and Humam Rights Commission (EHRC) in the UK publishes guidance on the Equality Act and its Code of practice of employment which are regularly considered and held out by courts and tribunals as being best practice.
Section 12 of the EHRC employers code of practice sets out the steps an employer can take in order to introduce a policy of positive action in favour of disabled candidates. The guidance notes "it is not unlawful for an employer to treat a disabled person more favourably compared to a non-disabled person" and this is further explained in Section 158 of the Equality Act 2010 itself. Section 158 confirms that an employer may "take any action which is proportionate to meet the aims stated in the Act" as a means to "remedy disadvantage", "meet needs" or "encourage participation [of the disabled person] in activities".
There has been recent unpleasant commentary surrounding the Scottish National Party's National Executive Committee's decision to agree to adopt a policy of positive action. This policy of positive action will see the party change the structure of their party lists for the 2021 election in favour of BAME candidates and those candidates who are disabled. Some opponents of this policy have made a number of claims about the nature of disability and have referred to people in the ableist terms aforementioned. While it is absolutely true and wholly uncontroversial that in the UK, disabled people "self identify" as such, suggestions that those who are not disabled would be holding themselves out as disabled in order to rank above other member is nonsensical. This approach to the self identification of disability has been in place since at least 1995 and we do not have widespread misrepresentation as is being claimed would result. Some point to employers referring employees to occupational health, however this is to facilitate a discussion around what reasonable adjustments should be made and how the employer can support the employer by reducing barriers. Any access to medical records by the occupational health practitioner is secured with the permission and agreement of the employee. Requesting that prospective party candidates have their disabilities assessed would not be proportionate under the terms of the Equality Act 2010 and would most likely be held to be unlawful discrimination under the Act.
There is no controversy in seeking to increase the number of disabled people or the number of BAME people in parliamentary politics. The institutions of power should be broadly reflective of the rich diversity of Scotland's population. One in five people in Scotland have a disability and according to the cross-party One in Five project disabled proportionate representation in Parliament would see us return around 23 disabled MSPs. We currently have one MSP in Jeremy Balfour (Conservative) who has openly declared that he is disabled.
While the majority of this post relates to disability, it is a shameful indictment that of the 21 years of the Scottish Parliament's existence we've only seen the election of four BAME candidates. Two for the SNP in Bashir Ahmad (2007) and Humza Yousaf (2011) and two for Scottish Labour in Hanzala Malik (2011) and Anas Sarwar (2016). The Scottish Conservative and Unionist Party, the Scottish Green Party and the Scottish Liberal Democrats have not seen the election of any BAME candidate in the 21 years of Holyrood's existence.
Read more about calls for increased BAME representation in Scottish politics at bbc.co.uk/news/uk-scotland-53322950