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The International Journal of Human

Rights
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information:
http://www.tandfonline.com/loi/fjhr20

The Rights of the Disadvantaged

Mary Warnock
Published online: 08 Sep 2010.

To cite this article: Mary Warnock (2003) The Rights of the Disadvantaged, The International Journal of
Human Rights, 7:1, 4-8, DOI: 10.1080/714003793

To link to this article: http://dx.doi.org/10.1080/714003793

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The Rights of the Disadvantaged

M A R Y WA R N O C K

For years I was a Positivist with regard to rights, strictly following

Bentham, and not allowing that there could be a right without a law or
bylaw which conferred it. If someone claimed that he had a right without
being able to point to the law under which he claimed it, I would
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pedantically correct him, saying that he might think he ought to have a

right, but so far he had none, and could not claim it. To speak of ‘moral’
or ‘natural’ rights was in my book a metaphor; and a dangerous metaphor
at that, because it borrowed authority from the law, an authority it did not
in fact possess. But now that we have the Human Rights Act on the statute
book, though my instincts are still to enquire where the rights come from,
who conferred them, and on whom the consequent duties fall (for if you
have a right of way over my land, I necessarily have a duty not to impede
you, or to keep the footpath open) though my instincts, as I say are still
legalistic, I am bound to admit the language of human rights, and try to
give up my Benthamite pedantry. But of course it still remains a question
what constitutes a human right or the breach of one; and this will fall to
be decided, case by case, at tribunals where disputes over alleged
infringements will be heard. Until a body of case law has been built up,
however much judges may disclaim any status as moralists, they will in
fact be exercising their moral judgement in each case they hear. Ought the
claimant to have been treated so or not? So far we are pretty much in the
dark about human rights.
Against this general background I want briefly to address the question
of the human rights of disabled people, including among them not only
those who have physical or sensory disabilities, but those with
intellectual or behavioural disabilities as well. Finally, I shall argue for
expanding the concept of disability, so that may embrace all those who
are manifestly disadvantaged.
The claim that the rights of the disabled have been, or are likely to be
infringed generally takes the form of a claim that there has been
discrimination. This is, I suppose, shorthand for unfair discrimination.
But that the word ‘discrimination’ is commonly used without
qualification to mean something unfair is not without some significance.

The International Journal of Human Rights, Vol.7, No.1 (Spring 2003) pp.4–8
PU B L I S H E D BY F RA N K C A S S , LO N D O N
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T H E R I G H T S O F T H E D I S A DVA N TAG E D 5
It may be right to treat men and women exactly alike as to their salary if
they are doing the same work for the same number of hours; again, it
may be right not to notice people’s sexual orientation or their ethnic
origins in promoting them. But then usually there is not much dispute
about whether someone is a man or a woman; and it is usually easy to
argue that sexual orientation is irrelevant in the workplace. If there is
discrimination in such cases discrimination is necessarily unfair because
the grounds of it are irrelevant, and so it is understandable to omit the
word ‘unfair’.
The same is not often true in the case of the disabled. If I work
alongside my blind friend in a publisher’s office, there are jobs that I can
do and he cannot, so there is nothing unfair in his not being offered the
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job I do. If a man who is wheel-chair bound is refused a job as a fireman,

while his friend, perhaps otherwise less reliable, is appointed, this shows
discrimination on the part of the fire service only in the sense that they
have shown themselves capable of distinguishing features of people that
are importantly and relevantly different. In a lecture delivered last year to
City University, Colin Low, himself blind, said this about discrimination:
One frequently comes across statements like ‘disabled people are
twice as likely as non-disabled people to be unemployed,
underqualified’, or whatever it might be, as if that by itself proved
that disabled people were discriminated against. Here it is crucially
important to remember the difference between disability
discrimination and race and sex discrimination, where the
disadvantages are much more a matter of imputation than
substantive difference. There is of course the matter of reasonable
adjustment, but it will not always be possible to cancel out all the
effects of disability which make for legitimate difference.
Moreover in many cases whether a disability is relevant or not,
whether it even exists, may be a matter of dispute, unlike the difference
between being a man and being a woman. Such disputes assume great
significance not only in the field of employment but of education.
And here we come to a major disagreement of which I probably need
not remind you between different ways of regarding disability and
therefore the rights of the disabled. They are generally referred to as the
‘medical’ and the ‘social’ views, though these terms are likely to be
misleading. Crudely, the medical model of disability concentrates on the
individual person, and what his impairment is, while the social model
treats all disabled people as being in the same boat, essentially disabled by
the attitudes, prejudices and rigidities of the society within which they live,
subjected to the tyranny of the majority. Some of the social disability
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6 T H E I N T E R N AT I O N A L J O U R N A L O F H U M A N R I G H T S

advocates will not even admit that people who are, say, profoundly deaf,
or who have severe brain-damage, are impaired at all. These are the people
who are most likely to insist on the rights of the disabled to be treated in
exactly the same way, with regard to education, employment, access to
buildings, freedom to live their own lives, as everyone else. It is from these
people that the Human Rights Tribunals are likely to hear most.
I need hardly say, perhaps, that I regard such polarisation as both
idiotic and damaging. But I must accept a certain degree of blame for it.
Long ago, in the 1970s, the Government Committee on the Education
of Handicapped Children and Young People, which I chaired (and how
amazingly old-fashioned that title now sounds), sought to diminish – if
not altogether abolish – the notion of categories of disability in order to
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concentrate on the different concept of educational need, whatever its

cause. The point of this was partly to emphasise that the education of the
handicapped should not be thought of as what went on in special schools
– for the deaf, the blind, the mentally subnormal and so on – but should
be thought of as something of far wider scope, embracing many children
who already were in mainstream schools, and many others who might be
in the mainstream if they had not been diagnosed, medical-fashion, and
therefore placed in a school named and labelled to fit the diagnosis. Now
in a way I see that this was a liberating, perhaps even a necessary idea at
the time; and it certainly revolutionised the attitudes of the general
public to children with disabilities. But even at the time there were
alarming signs (or signs which should have alarmed me more than they
did) of disputes to come. Within the committee there arose some fairly
obviously political or ideological disagreements about what we then
called integration (now inclusion), some of the more radical suggesting
that if any special schools were allowed to continue the Comprehensive
principle (the idol of the then Labour government) would be
compromised, and that we must at least state total integration as our
long-term aim. And many people wishfully read our report as if this was
what we said. I was horrified at the idea that special schools for the most
severely and often multiply disabled should be abolished. I saw, during
the committee’s life, the evils of the educational system in Norway,
which prided itself on children all going to the neighbourhood school
(and even being compelled to sit at their desks in rows corresponding to
the streets where they lived, so that if you hated your neighbour you
could never get away from him, though school might have been a good
chance to break away, and make new friends), with the consequence that
the most severely disabled children were hidden away in hospitals and
did not go to school at all. We in this country had only just emerged from
treating some very severely disabled children as ineducable, and I was
horrified by the idea of going back to that time.
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T H E R I G H T S O F T H E D I S A DVA N TAG E D 7
My great ally in this dispute was the psychiatrist member of the
committee, who insisted that there were some children, whom in those
days we still thought of as ‘maladjusted’, who absolutely needed not only
special schools but boarding special schools. We were therefore deeply
against abolition. (Incidentally, I think ‘maladjustment’ is a useful
concept, and I wish it had been retained. It left the possibility open that
changes might be necessary not only in the child but also in his
educational and social environment.) In any case, for one reason or
another, the pendulum has swung wildly in the direction of a refusal to
distinguish one disability from another; and we now have a vast number
of children classed as having special educational needs, often not very
clearly defined. And the demand that all should be educated in
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mainstream schools has become yet more insistent. It is for the school to
determine who has and who has not a special need, which, under the
1981 Education Act (that which arose directly from the Report of the
1970s Committee of Enquiry) is defined as a need which cannot be met
by the ordinary resources of the school, but which requires extra
resources to meet it. It is not over-cynical therefore to suggest that some
schools like to increase the number of children denominated as having
special needs, in order to increase their resources.
Most of the children so identified as having special needs will,
naturally, be in mainstream schools. Indeed, what is now called
‘inclusion’ is now enshrined in law. According to the latest Disability
Rights bill, it has become a criminal offence for a local authority to
refuse to place a child, whatever his disability, in a mainstream school, if
that is what his parents wish. There is an exemption, if the authority can
show that the other children in the school will have their educational
chances diminished by the presence of the disabled child (if, for instance,
he is so disruptive as to make the education of the other children in his
class impossible) but this will always be difficult to prove. There is
nothing in the bill to suggest that there might be an exemption in the
interests of the disabled child himself. Prima facie, every child supposed
to have special needs has a right not merely to be educated (which even
in the strictest Benthamite interpretation of rights he has had, under the
law, since 1972, when it was determined by law that every child should
receive education, not just ‘care’, that is, that no child was ineducable)
but to be educated in a mainstream school.
It seems to me, in short, that the present official position with regard
to special educational needs is a mess, and an expensive and dubiously
cost-effective mess, and that the whole question of special needs with
regard both to education at school and further education should be re-
examined from the beginning. This, in my view, is rendered more urgent
by the ambiguities and uncertainties surrounding the Human Rights Act.
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8 T H E I N T E R N AT I O N A L J O U R N A L O F H U M A N R I G H T S

For there is one enormous change since the report of my committee

and the consequent legislation in 1981; and that is the universal
recognition that the educationally and therefore permanently
disadvantaged members of society are not only the disabled, but the
deprived. Social deprivation leads to more educational failure and
therefore worse life-chances than any specifiable disability, physical or
intellectual. When my committee was convened to advise ministers on
the provision of education for the ‘handicapped’, there were two topics
which we were expressly forbidden to investigate (or even to mention in
the report). One was dyslexia, then widely regarded as an invention of
the affluent middle classes to cover up for the stupidity of some of their
children; the other was social deprivation. Indeed the refusal to take
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social deprivation as causing or constituting a ‘special educational need’

was included on the face of the 1981 Act. This now seems outrageous
and short-sighted.
We know, now, that so sharp a distinction cannot be drawn as we
tried to draw between the effects of deprivation and the effects of so-
called ‘handicap’, especially if we have to take into account
maladjustment as constituting a handicap (or emotional or behavioural
difficulties). We know that everyone has a right to be educated (even
according to the strictest positivist Benthamite legalistic interpretation of
rights). We believe, most of us, that to educate people is to give them a
benefit which it is morally as well as legally wrong to deprive them of. I
believe that we need to think again about how everyone can have this
moral and legal right to education properly implemented. For at the
present time we are infringing the rights of children and young people
by failing to educate them. I believe that, a decade from now, looking
back, we shall see, for example, that the way we treat young people in
custody is a manifest violation of human rights. I hope that if such a case
comes before a Human Rights Tribunal, the judges who have to find will
find in this way.
I therefore suggest that it would be timely to establish a new
committee of enquiry, or Royal Commission, to re-examine the issues of
the rights of the disadvantaged, especially with regard to education,
steering clear of the ‘disabled’ lobby and its excesses as well as the so-
called medical model of disability, but taking into account a wider
concept of disadvantage, which might lead us as a society into a more
humane, but also more optimistic, view of what the disadvantaged
deserve in a civilised society, especially when they are young.