One man's rubbish is another man's treasure: The English single use plastic ban,disability equality and the problem of reasonable adjustment

Abstract

This conceptual article argues that the UK Government's approach to single-use plastics, particularly the restriction on plastic straws, reveals a disconnect between environmental policy and its obligations under domestic and supranational disability equality legislation. Both environmental and disability frameworks are grounded in the principle of human dignity and recognise the complex interplay of biological, social and economic factors in shaping access to rights. Chalabi's Needs, Interests and Capabilities (NIC) model offers a framework for constructing, evaluating and enforcing environmental rights by understanding interrelationships between social and biodynamic environments and citizens. Discard Studies highlights the importance of assessing inclusivity in environmental measures, aligning with the Human Rights model of disability, emphasising participation as realisation of dignity. ‘Reasonable adjustments’ allowing people with disabilities to request or purchase straws, creates rather than addresses potential exclusion. Consequently, this article proposes reconceptualising ‘reasonable adjustment’ as Assurance of Rightful Access, to bring greater coherence to the disability equality framework. ‘Placcess’ is proposed here as a proactive and context-specific application of this principle, arguing that emerging environmental policies should proactively embed disability equality. It affirms that people with disabilities are valid and equal rights holders in newly imagined spaces and systems.

Introduction

In 1860, J. F. Campbell acknowledged that what one person may find useless, another finds valuable, which is a perfect encapsulation of the plastic straw for people with disabilities. ¹ In October 2020, the English Government banned the general sale of single-use plastics, including stirrers, straws, balloon sticks and cottons buds, in a bid to reduce single-use plastic waste. People with disabilities and their representative organisations have expressed concerns regarding the ban and its potential impact on the ability of people with disabilities to participate in their societies.^{2, 3} Plastic straws are fundamental in enabling many persons with disabilities to take on fluid and nutrition safely and with dignity. This in turn allows them to engage with their societies and exercise their right to participation in socio-cultural and economic life.

Many environmentally friendly alternatives present barriers in terms of safety for persons with disabilities. Paper can disintegrate in the mouth, posing a choking risk; glass and metal pose a risk of injury to those unable to control head or mouth movements; and silicone can sometimes require too much physical effort to use effectively. Furthermore, botanic alternatives like wheat can present difficulties in terms of allergies.^{2, 3} In response to these concerns, the Government instituted an exemption concerning access to plastic straws, allowing people with disabilities to continue to purchase them from pharmacies or to request them from service staff in restaurants and other establishments. The exemption requires that the availability of straws is not advertised to the public, although they can be advertised online to facilitate access. ⁴

Since the advent of the Disability Discrimination Act 1995, the UK legislature has required that where a particular practice or system may place people with disabilities at a ‘substantial’ disadvantage compared to those without disabilities, steps be taken to remove the barrier completely, or a system or protocol be implemented to address the barrier for people with disabilities. This is subject to a review of the size of the undertaking, the resources available, and the practicability of the adjustment in context. This duty also exists under the Equality Act 2010, and at the supranational level in Article 2 of the United Nations Convention on the Rights of Persons with Disabilities, which requires that state parties make reasonable accommodations for people with disabilities. In response to the Committee on the Rights of Persons with Disabilities in 2019, concerning the recommendation of the need to ensure that disabled people and their representative organisations were consulted regarding policy developments affecting them, the response cited at Paragraph 70b that consultation had been taken regarding the scope of the ban and the proposed reasonable adjustment, and that the policy would be reviewed 1 year post-implementation. ⁵ However, despite this promise, many advocates of disability rights expressed concerns regarding inconvenience in terms of the requirement to limit access. For example, Isaac Harvey MBE told RightsInfo: ‘I think it is awful really that it has come to this… It is very restricting… I think it is going to be a huge inconvenience… Not everyone is able to go to the pharmacy’. ⁶

This ‘reasonable adjustment’ highlights the problem with the continuing retroactive approach to disability access. As a newly written piece of legislation, the Government could have taken the opportunity to embrace a Universal Design approach to the policy, which proactively recognised the impact of social barriers and systems on people with disabilities, and directly involved people with disabilities in its development and the search for safe alternatives going forward. This would have demonstrated a commitment to the realisation of dignity and participation for people with disabilities under the Government's commitment to the United Nations Convention on the Rights of Persons with Disabilities, as ratified in 2009, and domestically under the Equality Act 2010. However, the decision to limit purchase options to pharmacies, and to require people with disabilities to disclose their need for straws to service providers in restaurants and other establishments, continues a medicalised, exceptionalist approach to disability. This means that people with disabilities remain in the position of having to request and justify their rights to participation and resources to the dominant able-bodied group, especially in contexts that are deemed non-essential by the dominant group. Whilst the reasonable adjustment is compliant with the provisions of the Equality Act, its existence highlights the fundamental problem: that the approach to equality and inclusion is not developing to become proactive and instinctive in its design of social and legislative responses. This emphasises the need for a new approach to accessibility and inclusion at the domestic level, which recognises the right to access for people with disabilities as equal citizens.

This article explores how this might look conceptually, by reviewing the single-use plastic regulation in England within the broader context of the disability equality and environmental rights frameworks to demonstrate the inconsistencies between them. It also introduces the concept of ‘Assurance of Rightful Access’ as a means of addressing the retroactivity of ‘reasonable adjustments’ more broadly, and the concept of ‘Placcess’, or plastic for access, as a means of reducing environmental impact. This includes ensuring that people with disabilities can continue to access the commodities they need for safe and dignified social participation, whilst simultaneously working to find sustainable alternatives. Moreover, it will argue that in the context of the emerging concept of the human right to a clean and healthy environment, it is vital that people with disabilities do not lose the ground and recognition gained by the creation of The United Nations Convention on the Rights of Persons with Disabilities, risking a loss of human rights under the veil of environmental protection and returning to persons of ‘other status’ in terms of recognition of these rights. ⁷ If we are to commit to an approach to environmental protection which seeks to embody the human rights values of dignity, equality, and respect, it is vital that these apply not only to the environment as a legal and social entity, but also to those who are part of and dependent upon that environment to live.

Background

The exclusion of people with disabilities from environmental initiatives and policies is not a new phenomenon. Pezzullo defined environmental ableism as:

marginalization of disabled people through environmental design; the exclusion of disabled people in environmental decision-making; and the discrimination against disabled people through environmental discourses, beliefs, and attitudes. ⁸

There has also been significant focus on the ‘eco-citizenship’ of people with disabilities. Fenney Salkeld recognises that the barriers faced by people with disabilities when engaging with environmentalism often ignore the impact of embodiment and design, failing to acknowledge the relationship between the individual and the collective, thereby making the assumption of active awareness of conduct unworkable in practice, because the specific needs of persons with disabilities fundamentally shape their ability or inability to make environmental choices about use of plastics, heating and transportation. ⁹ She highlights that this is also compounded by the rhetoric of rights and responsibilities in eco-citizenship. If the needs of persons with disabilities are not acknowledged, then they will not be able to take on citizenship responsibilities. Rather, they will remain the subject of the responsibilities of others on account of their perceived vulnerability. Kafer has drawn attention to the need for disability scholars to look beyond infrastructure and the built environment, and to focus on how the broader construction of the natural environment and access to activities such as hiking, and access to guidebooks and expeditions, perpetuates the sense of a natural world and an unnatural body, which requires changes to the natural world to facilitate access. ¹⁰ If one can cross the threshold into the natural world then one is granted access, but if one cannot then one is excluded. Hall has broadened this perspective on the environment to consider the impact of the failure to recognise disability in the context of politicised environmental discourse such as food security, and what this failure reveals about the value and status of people with disabilities as citizens. ¹¹ Alaimo highlights the importance of ‘crip[pling]’ sustainability to use disability as a source of insight into the concepts of natural and unnatural, understanding disability in the context of a sustainable world, and recognising the need for dynamism in the face of instability and vulnerability. ¹² This approach also requires a broad view of vulnerabilities in order to understand where seemingly well-meaning approaches to access, such as unsuitable sustainable straws for people with disabilities, need to be considered to be creating a broader barrier to access to the natural world, and potentially opening the door for systematic exclusion of people with disabilities under the guise of a socially positive development.

The need for disability-inclusive climate research and action has come to increasing prominence within the literature in recent years. Stein et al. highlight the need for a coordinated approach to research and policy which encompasses law, policy, practice and education, and understands and responds to the needs of people with disabilities in conjunction with ‘gender, indigeneity, race, and legal and socioeconomic status’. ¹³ This will lead to environmental resilience planning which acknowledges the rights of people with disabilities to be included in crisis planning, rather than being ignored as those not worth saving. ¹⁴ They focus on elements of good practice which should form the basis of an inclusive climate action framework, including:

Identify[ing] opportunities in legal and regulatory frameworks to develop disability-inclusive climate resilience from the perspective of the disability community.¹³

The report highlights the lack of disability-focused discussion in key climate change monitoring documents, such as the Paris Agreement, where in 2022 81% of submissions failed to consider the needs of people with disabilities. ¹⁵ In 2022, the Intergovernmental Panel on Climate Change (IPCC) reported that, internationally, almost no evidence showed the group's inclusion in climate adaptation, emphasising the importance of a rights-based approach to ensuring that climate action and policymaking is inclusive of the needs of people with disabilities.¹³

Whilst the report is valuable in presenting a disability-inclusive framework for evaluating policy, approaches to disability remained focused on what will happen after a climate-based emergency, which although important, is somewhat disempowering. Retroactive steps place people with disabilities in the position of waiting for others to recognise and respond to their needs. The importance of this was highlighted by a 2021 literature review by the Disability and Climate Justice Project, which found that:

‘[…] some of the decisions made (e.g., banning of single-use plastic straws, which are necessary for many persons with disabilities to use to drink with, and alternatives such as paper are often inadequate) or promoting cycle lanes to the detriment of blind and visually impaired persons, have often felt antagonistic. There is a need for more debate and investment into research and technology to find sustainable and inclusive solutions. If the discourse around such adaptations shifted to that of climate adaptations, rather than disability focused adaptations, then there may be a broader shift, such as […] creating jobs, and making policies that improve lives by putting sustainability and accessibility at its heart’. ¹⁶

In terms of work concerning environmental policy and disability, there has been increasing focus in third sector literature about the exclusion of people with disabilities from environmental discourses. ¹⁷ However, much of this has focussed on the impact of environmental emergencies ^{18 , 19} and the needs for states to consider issues such as evacuation plans, ²⁰ although most of this has been focussed on developing nations ²¹ rather than domestic and consumer-based campaigns. However, the Research Institute of Disabled Consumers ²² has highlighted that a significant proportion of people with disabilities in the United Kingdom have felt excluded from environmental initiatives due to a lack of access considerations, despite being significantly concerned about their environmental impact ²³ and the future. ²⁴ This report also highlighted the impact of low income on the ability of people with disabilities to change consumer behaviour. There has also been some consideration of the lack of Universal Design in relation to public-facing climate change initiatives, ²⁵ such as a lack of accessible electric charging points for vehicles, a lack of accessible infrastructure such as cycle lanes, ²⁶ and the impact of single-use plastic bans. ²⁷ In 2020, the UN Office of the High Commissioner for Human Rights presented a case study focusing on the impact of climate change on persons with disabilities. Focusing on issues of food security, ²⁸ it highlighted that people with disabilities would be adversely affected, due to an already higher likelihood of living in poverty without access to adequate food, which would increase in scarcity as a result of climate change and food deserts. Access to healthcare and clean water would also be affected, along with access to work and the ability to relocate in the event of a climate incident. The report reminded state parties of the importance of embedding the needs of people with disabilities through the integration of practices into the normative environmental law framework, based on the content and purpose of the existing human rights protection for people with disabilities under both the general and specific framework. Calling for an operational framework that is inclusive and rights-based, focusing on the particular needs of people with disabilities. ²⁹ However, this particularly has focused on retroactive responses to large scale climate disasters, ³⁰ rather than considering the impact of smaller scale changes or preventative measures such as the reduction in single use plastic. This article advances the current literature concerning environmental law and disability by highlighting the need to ensure that the legal framework is proactive rather than reactive and that it respects the rights of people with disabilities not only to a healthy environment, but also their rights to dignity, inclusion and participation.

What do we mean by the right to environment: NIC theory, disability and discard studies

To highlight the continuing disconnect between disability equality, access and environmental protection initiatives, it is vital that the reader understands each of these concepts in the context of their theoretical and social evolution, to understand how the legislative framework either embeds or undermines these ideas in practice. Consequently, this section of the article will deal with four questions. What is the ‘right to a clean and healthy environment’? What is disability? What is ‘access to the environment’ for people with disabilities? How is this embedded in the legislative framework? Answering these questions will enable us to construct a roadmap as to how future approaches to environmental policy can ensure respect for the human rights of all members of society in accessing and benefiting from a healthy environment.

What is the ‘right to a clean and healthy environment’?

In 2022, the UN General Assembly released a resolution recognising a clean and healthy environment as a human right. The United Kingdom voted in favour of this resolution. ³¹ Chalabi argues that there has been little consideration of the relationship between the right to a clean environment and other human rights. ³² Despite its recognition, there is little consensus as to how this should be implemented in practice. What is the extent of the right, the content of the right, the threshold for derogation from the right, and how will it intersect with existing rights? ³³ Without these definitions, several theorists have highlighted that the existence and protection of the right will be futile. ³⁴

In response, Chalabi proposes a theoretical model which defines the scope and content of the right, its collective and individual application, and the logical relationship to established human rights. Her thinking is based on the understanding of an external existential relationship between human beings and their environments. She argues that the human being cannot be separated from their environment, because they exist within that environment; the environment as a standalone entity is the only way for human beings to respond to certain basic needs such as the need for oxygen, water, sustenance, and shelter. These are achieved by access to the meta-resources of the environment: air, land, and water, which are non-replaceable in the current climate. Therefore, Chalabi argues that these three realities fundamentally link the environment with the human being's ability to meet their needs for survival, and as such access to the elements required to meet these basic needs is what constitutes the standalone right of the right to the environment, which has these certain qualities of cleanliness and health that enable human beings to meet their basic needs.

The second layer of understanding is the reciprocal element between the human being and their ability either to protect or corrode the health of the environment. This will to some extent be influenced by an individual's capabilities. That is to say, the opportunities they have had to both develop and sustain a particular level of interest in the maintenance of the healthy environment. This can come down to factors such as education, economic resource availability, and cultural upbringing, but Chalabi argues that all members of the ecosystem have an interest in its maintenance. As a result, Chalabi argues that rather than looking at the right to an environment as a single standalone right, it should be viewed as a ‘composite right’, because of the intertwining interests between fellow living and non-living things in maintaining the quality of the environment. For example, she highlights that decreased biodiversity may lead to places becoming less habitable over time and shifts in population density in other areas that then impact the social structure of the environment, not just the biodynamic. Therefore, it is necessary to conceive of the right to the environment at multiple levels. The individual right, which is focused on personal claims such as waste management, noise, or other factors affecting single or small groups of people in the present or future. In contrast, the idea of the environment as a collective right considers these issues beyond the individual or the small group, to examine how their impact will alter the broader social structure in the future. Finally, the global right to the environment focuses on the broader threats such as climate change and the widespread consequences for life and provides the basis for various levels of legal intervention and obligations to minimise the harm's scale and severity over time.

Chalabi identifies that this stratified conception of rights will lead to a situation of impasse, because the three differing rights and the three aspects of Needs, Interests, and Capabilities need to be blended together to ensure that societies are able to exist and thrive within their environment, both as a collective and as individuals. Coining the NIC model, Chalabi argues that these elements are the fundamentals of human rights. Next, we will turn to consider how the legal and social understanding of disability shapes the understanding and application of the NIC model in the context of the environment, as defined by Chalabi.

What is disability?

The answer to this question is one that has evolved continuously, both socially and legally. Initially, it was tied to the physicality of bodies which differed from the norm, and often viewed as either a mark of grace of divine displeasure, depending on one's spiritual outlook. These members of the social environment were treated with either pity or censure, left to beg on the streets for support by those more fortunate than themselves, or hidden away in private homes or institutions, with the innate understanding that this was their designated lot in life, and that they could not expect to be included in their societies as they could not take part. Gradually, this outlook began to change, particularly in the context of the global conflicts of 1914–1918 and 1939–1945. In this environment, disability was viewed not solely as a personal misfortune, but as a result of a sacrifice to be repaid. Consequently, a new medicalised approach emerged, whereby the focus shifted to ‘correcting’ and concealing abnormalities and differences to enable those who suffered to integrate and take their place in society. ³⁵ This is evident in the development of literature around rehabilitation, new medical techniques, and the emergence of new terminologies such as ‘prostheses’ within these timeframes. Whilst this Medical Model of disability could be seen as advantageous to those who had impairments that could be successfully ‘corrected’ or concealed by medical intervention, for those who were unable or unwilling to submit to these medical interventions, things remained much as they always had. It was not until the 1970s, when a group of young people who had been unsuccessful in being ‘cured’ and confined to institutions decided that society needed to look at itself to understand why people with disabilities were excluded. Calling for the Social Model of disability, they argued that the realities of their bodies, their impairments, needed to be separated from their disabilities, the exclusion that they experienced when their bodies came into contact with and inaccessibly designed society. ³⁶ They were no longer going to quietly submit to and accept their position in society. Instead, they were going to challenge and call for change. Then, in 2006, a bigger step was taken whereby people on the global stage stated not only was the failure to design an accessible environment an example of discrimination and exclusion, but it also constituted a violation of their inherent Human Rights and dignity. ³⁷

The current article proposes that Chalabi's model could be extended to analyse the particularities of certain characteristics such as disability to enable policymakers and other stakeholders to undertake equality impact reviews of legislation and policy, to ensure coherence, not only with the standalone right of the right to the environment, but more broadly the intersection with other rights and the legislative framework that supports their protection.

What is ‘access to the environment’ for people with disabilities?

The concept of access to the environment for people with disabilities needs to be broadly defined in such a way that considers all aspects of the built, social and natural environments that may present barriers for people with disabilities. For example, a person's impairment may make it difficult or impossible for them to take on food and water without an intermediary of either a person or an object. Lack of availability of this may restrict their ability to participate in the broader social environment, and latterly their competing interests of requiring safety and protection in a clean environment given their increased vulnerability in the face of catastrophic climate change means that they will want to work towards solutions which balance and protect all of these rights, both for themselves and others, thus highlighting the importance of Chalabi's integrated approach.

The focus on Needs, Interests and Capabilities are relevant to the issue of access to plastic straws and other plastic products for people with disabilities, because they intersect with their ability to meet their needs and capitalise on their available capabilities by enabling them to be out in society and to retain their interest as rights holders in society. This acknowledges that no human being can live without access to certain environmental resources of sufficient quality, that is, food, water, oxygen and shelter, regardless of disability status. Chalabi's model underscores that the right to a healthy environment is a multifaceted concept, applicable at individual, community and global levels. This shift from a uniform approach to a more nuanced model allows for a more tailored response to environmental harm, considering factors like severity, extent and permanence. This means that plastic use for people with disabilities can be assessed within these parameters until suitable alternatives can be found. This ensures that people with disabilities retain access to society under the other elements of the model, without having to justify their rights to the dominant group, because there is an expectation of individual and shared responsibility for the environment. This offers the possibility proposed in this article of recasting the discussion around access to single-use plastic for people with disabilities away from the adversarial narrative of ‘reasonable adjustments’ towards an inclusive ‘proportionality of damage’ approach.

How is access to the environment for people with disabilities embedded in the legislative framework?

The separate models of disability and their manifestation in various elements of the legislative framework relating to the rights of people with disabilities are analogous with Chalabi's stratification of approaches to the environment. For example, the individual concept of the right to access the environment can be seen in the English Disability Equality Framework, based in the Equality Act 2010. The global right is best embodied by the United Nations Convention on the Rights of Persons with Disabilities, which brings together the aims and purpose of the foundational human rights documents, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR). Through the lens of disability to ensure that people with disabilities can access these rights in practice as their needs had previously only been considered under the catchall phrase of ‘persons of other status’. This demonstrates the potential workability of Chalabi's NIC model because it demonstrates in practice how rights at different levels can be synthesised together to ensure implementation. In ratifying the UNCRPD in 2009, the UK Government pledged to ensure that their domestic legislation was compatible with the aims and purpose of the CRPD. Unlike the Equality Act, Article 11 of the CRPD makes direct reference to the needs of people with disabilities in the context of natural disasters and national emergencies. Article 11 also places responsibility on the Government to ensure that environmental policy considers the specific needs of people with disabilities. The United Nations has restated individuals’ right to live in an environment which supports their development and wellbeing in several other documents (i.e., Aarhus Convention (1998), African Charter on Human and Peoples’ Rights (1991), Arab Charter of Human Rights (2004) and Protocol of San Salvador (1969)).

However, Article 11 does not focus on the potential for building the interests and capabilities of those with disabilities in the preventative dialogue concerning environmental policy in practice. The CRPD also maintains a broad conception of dignity of people with disabilities, which is focused on social and political participation inclusion, and recognition. This provision has the potential to ensure that people with disabilities are involved in interest and capability building in relation to environmental policy as identified by Chalabi. However, there are fundamental potential roadblocks to this within the context of the CRPD. One of these main difficulties is the continued presence of the concept of reasonable adjustment and undue burden in Article 2 of the Convention. Whilst the development of the concept of reasonable adjustment is an important step forward in the realisation of both the social and human rights models of disability, because it creates a legal obligation on state parties to remove barriers to participation for people with disabilities, the fact that it is packaged with the economic limitations of the concept of undue burden is fundamentally problematic and incoherent to the overall consistency of the aims and purpose of the framework. The understanding of what constitutes a disproportionately burdensome or unreasonable adjustment is based on factors such as size of enterprise, available resources, and disruption to business or undertaking. The decision to continue the use of the language of burden in the Convention was queried during the drafting process, particularly by the International Disability Alliance Forum, who expressed concern that:

‘It is very important that the national disability anti-discrimination legislation clearly defines how the concept of disproportionate burden will be applied. Failing to do so, would limit significantly the obligation of providing reasonable accommodations. […] State parties should provide financial assistance for those reasonable accommodations that imply a cost, thus reducing situations in which employers can evade their obligations by claiming that the reasonable accommodation imposes an undue or disproportionate burden on them’. ³⁸

The dictionary definition of ‘reasonable supports’ is: ‘not making unfair demands’, ‘moderate in price’ and ‘average’. ‘Undue’ mirrors these; it is defined as being ‘unwarranted or inappropriate because excessive or disproportionate’, which indicates a lowering of expectations. Some delegates from organisations of people with disabilities argued that the qualification imposing undue burden was unacceptable. ³⁹ Trömel highlights that maintaining reasonable adjustment in the UNCRPD was justified because it applied to individual rather than group access. This has implications regarding individual worth and the need to justify access when more assistance than is considered reasonable is needed. It also demonstrates the fractured nature of the framework, hoping that localised weaknesses will be ameliorated by the overall meaning of the document or latter provisions. Broderick highlights that dignity is on the periphery of the duty to accommodate. ⁴⁰ This is problematic because any approach to access should be centred around dignity as a foundation. However, references to the notion of ‘undue burden’ undermines this recognition and valuing of rights: the duty of reasonable accommodation, contrarily, exists only if implementation constitutes no undue burden on the entity. A further paradox beyond this is the convention's holistic focus on access to all elements of the built social and cultural environment, which can, based on Chalabi's definition, include the natural environment, as the human being cannot be separated from this, embodied in Article 9 of the UNCRPD. Yet, for people with disabilities, as already discussed, single use plastics can and do act as an intermediary to facilitating this access in practice.

For some people with disabilities, plastic straws form a conduit to participation in education and other key areas of life which increase their understanding of their responsibilities to the environment, as they need them to take on fluids and nutrients to give them energy to learn, but also to maintain their health, as a standalone right. However, this approach also underscores that people with disabilities also have the desire to remain healthy and reduce vulnerability by maintaining a healthy general environment and having the ability to engage in interest and capacity building opportunities.

Additionally, the UNCRPD recognises the importance of Universal Design (UD) in ensuring the implementation of its aims and objectives in practice. UD is a design philosophy that aims to create environments and products that are usable by everyone, regardless of their age, ability or background. UD principles focus on creating products and spaces that are: equitable (usable by all people, regardless of ability), flexible in use (accommodate a wide range of individual preferences and abilities), simple and intuitive (easy to understand and use), tolerant of error (minimises hazards and adverse consequences of accidental actions) and low physical effort (efficient and comfortable to use). ⁴¹ By incorporating these principles, designers can create environments and products that are more inclusive and accessible to all. Removing or restricting access to appropriate drinking straws for people with disabilities fundamentally undermines the ability of people with disabilities to engage with the environment at various levels, and to fully enjoy their rights as presented and protected by the Convention.

Domestically, the English Disability Equality framework engages with all three Models of disability. The Equality Act 2010 definition of disability embodies the Medical Model, by focusing on impairment and a person's inability to carry out ‘normal’ day to day activities. However, Section 20 of the Equality Act does acknowledge the impact of societal barriers on creating exclusion by requiring service providers and the Government to make ‘reasonable adjustments’ to remove physical, procedural and attitudinal barriers that place people with disabilities at a ‘substantial disadvantage’. However, like the CRPD, these may still be deemed unreasonable in the context of available resources or the nature of the enterprise.

The UK Government passed the 2021 Environment Act in order to make provision about targets, plans, and policies for improving the natural environment. This lacked clear definitions, thresholds, and conceptions of harm, further highlighting Chalabi's call for greater theoretical and interrelational underpinning of environmental legislation which fully understands and articulates the relationality between the individual, the community, the biological environment and the global environment. Despite the requirement for equality impact assessment of new legislation in terms of compliance with both the EQA 2010 and the Government's obligations under the CRPD, the current approach to environmental law and policy experiences governmentality, or rather environmentality, whereby the subjects of the policy are considered to fit both a cultural and physical ‘norm’. This means that people with disabilities and other minority groups, and the way that they interact with the environment, is under-considered, leading to exclusion.

This has been the particular focus of Discard Studies, which examines how Governmental and legislative categorisations of what is valuable and what can be thrown away is indicative of broader societal narratives and power dynamics. Having a vernacular through which to articulate and investigate the impact of specific characteristics in the relationality between the individual and the broader social and ecological environment offers the opportunity to add further dimension to Chalabi's multi-level approach to environmental policy review, and to embed equality impact considerations as required by domestic and supranational legislation, such as the EQA and CRPD. Liboiron and Lepawsky highlight that waste management, and what is retained and discarded, can be indicative of broader power struggles and inequalities. ⁴² They highlight that the ban on plastic straws ‘can only be considered good by erasing, dismissing and ignoring people with disabilities’. Raffles ⁴³ and Douglas ⁴⁴ demonstrate how the creation of certain categories have historically been presented as the natural and proper way to achieve hygiene-based goals for the greater good. This justified the othering and blaming of certain individuals for the need for the policies.⁴² During the COVID-19 pandemic, people of colour were unduly targeted in Canada and the United States in relation to social distancing violations. Historically, people with disabilities have also been labelled as unworthy of resources, as demonstrated by eugenic history and the slogans of ‘Lives Unworthy of Life’ and ‘Useless Eaters’. ^{45 , 46} Contemporaneously, this approach to Discard Studies and waste management is evident in the unilateral application of DNAR orders during ventilation allocation at the height of the pandemic. ⁴⁷ These factors emphasise that the correct and natural place for people with disabilities is in the home, away from healthy and productive members of society, thus signalling a reversion to the Medical Model of disability.

Fletcher highlights that human beings are predominantly driven by their own self-interest and must be compelled and supported by external agents to act in accordance with common good. ⁴⁸ Ostrom et al. critique this assumption of selfishness, arguing that when an appropriate framework is in place to support conversations and innovation to build new rules and sanctions, this can establish a self-sustaining approach for reciprocal cooperation. ⁴⁹ In response, Fletcher argues that environmentality needs to engage with specific group needs and experiences in order to move from a place of opposition to one of understanding, rather than focusing purely on property rights and preservation, which are inherently oppositional. Rather, we need to focus on the position of diverse groups as equal and democratic stakeholders within governmental approaches to environmental policy.⁴⁸ By doing so, it is possible to move to a liberation or post-conservation environmentality which enables researchers and policy makers to understand the position and needs of stakeholders; this in turn may lead to a more responsive, effective, reciprocal and collaborative approach to sustainability moving forward.⁴⁸ This viewpoint is useful in operationalising and responding to Chalabi's recognition of individualised and differing interests in achieving the cohesive implementation of environmental policy.

A fundamental element not only of the discussion to be had in this article, but more broadly in the dialogue of environmental protection, preservation, and inclusion, is that of dignity. Dignity is the inherent belief that life, by virtue of its existence, has an inherent value that cannot, or at least should not, be violated or removed from an individual. The explanation for this is of course varying and context dependent. For many, it is rooted in religious and cultural ideas that human beings and other living things have a value simply as a result of their creation or occurrence, with various entities being given as an explanation as to why. This sense of innate and inalienable worth is something that is fundamentally woven into the human rights framework, beginning of course, with the Universal Declaration of Human Rights, which McCrudden presented as the ‘theoretical basis of the human rights movement in the absence of any other basis for convention, [because] everyone could agree that human dignity was central, but not why or how’. ⁵⁰ It is also generally understood that dignity is not a transactional concept, and it can exist without obligations in its purest form, but the recognition of dignity in others may create obligations, such as to refrain from treating them in an inhumane manner. As Degener puts it, ‘people are to be valued not just because they are economically or otherwise useful but because of their inherent self-worth’. ⁵¹ It is for these reasons therefore, that human beings can be said to have a right to, and legislate for, an environment that enables them to meet the basic needs of oxygen, water, sustenance and shelter. This gives reason to the push to protect the environment, to ensure that nobody's standard of living is denigrated as a result of failure to act. Therefore, one could argue that Chalabi's NIC model is actually an expression of, and way of implementing, the broader narrative of human dignity in practice. However, for this to be truly viable for all members of society, it is necessary to understand what we mean by dignity and how this can either be inclusive or exclusive of those with particular characteristics. In the environmental literature, Discard Studies has highlighted how those perceived to be ‘other’ or different from the standard citizen have been marginalised within environmental dialogue and policy. In the context of disability however, it is also important to look at the structure of dignity as an ideal. Classical conceptions of dignity, most notably those advanced by Emmanuel Kant, ⁵² necessitated that in order for a person to be fully ascribed dignity, they had to be autonomous. For those living with disabilities, this bar of autonomy could not be reached, as their impairments may require that they receive support in terms of basic physical care and other support from another person. However, scholars such as Quinn ⁵³ and the advent of the UNCRPD rebut this presumption, arguing instead that all members of society are influenced in their decision making and behaviour by their interrelationships with and to other people, and as such, no one can reach the Kantian level of autonomy. Consequently, dignity should be predicated on the concept of personhood, which recognises, Quinn argues, this entirety of the individual in context. This therefore requires that people are able to enter into this social context and relationship, and for this to happen, they must be able to access and engage with society. This therefore highlights the importance of recognising and addressing the multi-level barriers, including architecture, attitude and policy, that may prevent people with disabilities from participating, and as a result violating their dignity.

Applying a Discard Studies lens to Chalabi's NIC model of the environment would enable not only the definition of the concepts of environment at different stages and their interrelation with each other, but it would also provide a framework for her recognition of the need to situate and understand the individual within their environment and to understand the symbiotic relationship between the environment and the resources available to the individual and what the individual could achieve. In doing so, the Discard Studies lens also enables us to enrich the understanding of the individual experience, by recognising and critiquing the impact of diverse characteristics in interaction with environmental policy in either including or excluding people from dialogue and progress and embedding or addressing exclusion moving forward. Taken together, this approach offers the opportunity to address the disconnect between the legislative aims of equality and inclusion legislation, and the protection of all citizens through environmental policy and law to ensure a clean and healthy environment.

One man's trash making a methodology: Material culture, environmental and disability equality law

Having concretised the abstract entity of the environment through Chalabi's model, and synthesised Discard Studies to demonstrate the importance of understanding the positionality of diverse and potentially marginalised people in the context of seemingly automatically beneficial and benevolent legislation, it is important to consider how these realities are either revealed to or concealed from the general population who feels their impact beyond the corridors of Whitehall or the Courts, when things go wrong. The focus of the legislation on the seemingly humble and neutral plastic straw is a perfect encapsulation of the power dynamics and relationality that occur between the Government, law, society and the individual. It is all too easy to forget the value and communication of objects beyond their practical use or in the case of the plastic straw, their disposal, and we can be lulled into a belief that their existence is neutral. However, this is not the case. The critical methodology of looking at the material culture of objects from the lens of alienation and social stratification was developed in Marx's Capital to focus on the relationship between the production of objects and what this reveals about the status of those producing the objects and those directing their production, ⁵⁴ and described objects as ‘congealed labour’. ⁵⁵ However, Marx's methodology does not engage with the consumer in this relationship. Lukács responds to this by focusing on the relationship between the consumer and the commodity. ⁵⁶ He argues that the consumer is embroiled in the capitalist system by owning the commodity, and this process makes it appear as though the consumer exerts some control over the system. This, Lukács argues, is why the social order is maintained rather than challenged. In the context of alternatives to plastic straws, many are presented to people with disabilities regardless of their suitability to the person's needs. As such, responsibility for finding alternatives is placed on the shoulders of people with disabilities, even though they have relatively little power as consumers. Though the single use plastic regulations makes provision for them to continue to access plastic straws where necessary, this is done in such a way that places burden on them rather than on manufacturers to find suitable alternatives, and their continued use of the commodity is moralised and placed in opposition with the desire of both the general public and the legislature to preserve the environment without considering the multifactorial issues around environmental pollution and engaging in a dialogue about how best to acknowledge this in practice. This deficiency speaks to a fundamental problem with the doctrine of the legislative approach to the environment in terms of preservation and policy because the doctrinal elements of both defining the entity to be protected and the understanding of the doctrine to achieve equality in practice is lacking in execution. Consequently, this article will engage in a doctrinal analysis of the English Disability Equality Framework to demonstrate how the use of reasonable adjustment in the Single Use Plastic Regulation ⁵⁷ is inconsistent with the aims of inclusion and recognition of the human rights of people with disabilities. It will argue that this approach unfairly places the burden of environmental responsibility on people with disabilities, requiring them to compromise their rights for the sake of sustainability. Instead, the focus should be on addressing the broader issue of plastic usage by the general population. As such, this will bring consistency with Chalabi's theoretical conceptualisation of environmental legislation, and consistency with the aims and purpose of equality legislation more broadly. This analysis will focus on critiquing and evaluating approaches taken in the legislative and regulatory framework through the lens of dignity, acknowledging the limitations of classical conceptions of dignity and its focus on complete autonomy, which is not possible for those with disabilities, or indeed those without. Therefore, the approach to dignity will be grounded in Quinn's concept of personhood, ⁵⁸ which recognises that the key aspect in operationalising dignity beyond its simple recognition is to ensure that all members of society have the opportunity to participate within that society. This dialogic approach to engagement and the recognition of difference, rather than standardisation, is compatible both with Chalabi's multi-layered approach to the environment, and the recognition and importance of difference highlighted by Discard Studies. This is also consistent with the focus of the legislative framework at both the domestic and supranational levels on the equal participation and inclusion of those with disabilities as a marker of dignity.

Analysis

Superficially, the exemption allowing people with disabilities to continue to purchase plastic straws from pharmacies and to request them from service providers appears to remove a barrier that would place people with disabilities at ‘a substantial disadvantage’, compared to those without (EQA 2010s. 20). Section 20 of the Act requires public and private bodies to make reasonable adjustments comprising of three elements: firstly, to remove or cease any provision criterion or practice that puts a disabled person at a ‘substantial disadvantage in relation to irrelevant matter in comparison to a person who is not disabled and take such steps as is reasonable to have to take to avoid the disadvantage’. Secondly, to ‘address physical features that put people who are disabled at a substantial disadvantage’, and thirdly, ‘to provide auxiliary aids to overcome the disadvantage where necessary’.

However, the exemption creates substantial disadvantages. The straw itself is an auxiliary aid in allowing people with disabilities to overcome a barrier they may face in terms of accessing a service provided by catering establishments, meaning that the denial of the aid, either by not having it available, or requiring people with disabilities to declare medical information to access it, creates rather than overcomes the disadvantage. This fundamentally undermines a key feature of the Equality Act 2010 at the granular level in terms of the practical implementation, but also creates incoherence in relation to the Government's commitment to both the Social and Human Rights Models of disability. In the context of Chalabi's symbiotic relationship between environmental and human rights, this violates their right to the environment as well. The negative impact on relations between people with disabilities and those without in the context of policy surrounding plastic straws can be seen in the production of signage to be used by people with disabilities to explain their use of plastic to drink from and thereby head off intrusive questioning from other people, for example using disability alert cards such as those for sale on various internet sites. ⁵⁹ The need for such signage is clearly driven by fear of public censure or the requirement to reveal personal, health-based information which is generally considered as a fundamental element of the right to privacy under the English legal framework, as demonstrated by the General Data Protection Regulation, GDPR 2018. ⁶⁰

Secondly, Section 21 of the Equality Act 2010 states that failure to comply with Section 20 is an act of discrimination against people with disabilities. The first step in establishing this is to identify a discriminatory provision, criterion or practice (PCP), which has the potential to lead to exclusion and discrimination of those with disabilities. This facilitates the operationalising of the concept of reasonable adjustment by identifying the barrier creating disadvantage for people with disabilities, which Section 20 requires service providers and others to address. These barriers can either be directly or indirectly discriminatory under the Equality Act. Indirectly discriminatory provisions are those which appear to apply equally to all members of society, but because of an individual's protected characteristic, the application places then at a disadvantage compared to others. There is no requirement that the discrimination was intentional. ⁶¹ Section 15 of the EQA also permits people with disabilities to bring a claim of discrimination arising from disability, which occurs where they are treated less favourably because of something arising from their disability and the person pursuing the treatment cannot show that it is in pursuit of a legitimate aim. PCPs can include a wide range of things, with the key factor being that it is something that occurs with an element of regularity. Failure to provide accessible drinking straws to those with disabilities could constitute a practice or provision if no alternatives are easily or readily available. Although the concept of a PCP is not defined in the statute, case law indicates that it can be applicable to an element of repeated conduct or behaviour, allowing for a claim of direct or indirect discrimination to be brought. However, this was questioned in Obiter in Gallop v Newport City Council, that a PCP cannot be said to be disadvantageous to a disabled employee if the employer could not reasonably be expected to have known about the claimant's disability. ⁶²

In the context of the single-use plastic ban, the elements of a PCP can be said to have been met because the practice of restricting access to plastic straws in public places by requiring people with disabilities to ask for them as mandated by the guidance can qualify as a PCP. Ishola v Transport for London, 2020 ⁶³ stated that:

The words “provision, criterion or practice” are not terms of art, but are ordinary English words. I accept that they are broad and overlapping, and in light of the object of the legislation, not to be narrowly construed or unjustifiably limited in their application […]. In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again […]

Secondly, the ‘solution’ in the single use plastic regulation that people could access plastic straws through pharmacies arguably presents another created barrier, as it restricts the availability of the commodity to one outlet which disadvantages people with disabilities on several levels. The impact of this is evidenced by a variety of statements published by charities and disabled people's organisations in response to the ban, highlighting the negative impact on certain people with disabilities.

Initially, they would have to be able to access the pharmacy or have somebody to access it for them, which restricts their ability to exercise choice and control. Next, they have to declare their health or disability position in public when accessing the straws via pharmacies or bars, which is not required by those without disabilities; this is arguably indirectly discriminatory because although the PCP can be said to be equally applicable to everybody, it has specific negative impact on those living with disabilities. ^{64 , 65 , 66} Lastly, the approach is incompatible with the public sector equality duty. Section 149 in the Equality Act requires a public body such as Department for Environment, Food and Rural Affairs (DEFRA) to have due regard to eliminate discrimination, harassment and victimisation and any other conduct that is prohibited under the Act, in order to advance equality of opportunities between people who share a characteristic and those who do not. Public sector bodies must also work to foster good relations between persons who share a protected characteristic and persons who do not. The concept of due regard is outlined in Subsection 3, which states that responsible bodies need to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic when the disadvantages are linked to the protected characteristic. Additionally, they must take steps to meet the needs of those sharing the characteristics when these are different to those who do not share the characteristics, and to tackle prejudice and promote understanding of the needs of people sharing a particular characteristic amongst those who do not.

Furthermore, access to appropriate drinking straws for people with disabilities intersects with the realisation of several rights under the Government's ratification of the UNCRPD. Article 9 requires that states take all reasonable measures to ensure full accessibility to society:

(a) To develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public; (b) To ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities.

Article 25 relating to Healthcare states:

State Parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. […] In particular, States Parties shall f) Prevent discriminatory denial of health care or health services or food and fluids on the basis of disability.

Article 27 concerning employment, states that:

State parties will take reasonable steps to (a) Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions.

Article 30 paragraph E states that:

State parties shall take all appropriate steps to ensure that persons with disabilities have access to services from those involved in the organization of recreational, tourism, leisure and sporting activities.

If people with disabilities cannot easily access appropriate drinking materials, this could affect their ability to access recreational activities such as drinks or outings with friends, elements of corporate recruitment opportunities or team building exercises, and general employment-related activities. Additionally, negative messaging about the use of plastic straws which does not consider their importance to the participation of people with disabilities can be said to violate the positive awareness raising requirements of Article 8, which requires advertisers and other media outlets to combat harmful stereotypes of disability. This could provide a route to making the general community aware of the responsibilities towards persons with disabilities in the context of eco-citizenship.

Discussion

In response to the inconsistencies and potentially discriminatory approach evident in the single-use plastic policy, this analysis creates and proposes the concept of ‘Placcess’; ⁶⁷ a simple portmanteau of the words ‘plastic’ and ‘access’ which recognises the role that single-use plastic plays in the inclusion and equality of people with disabilities. It provides us with a way to distinguish superfluous plastic use and essential plastic use beyond the currently accepted dichotomy of the frivolous and wasteful examples such as coffee stirrers and balloon sticks, and the necessary sterile dressings and intravenous products to deal with those impairments requiring them. Straws sit between the boundaries of these two categories, as they can be superfluous on the one hand, but are vital to those who need them, and so are a perfect demonstration of the need to take a holistic view to both the concept of access and the role and use of single-use plastic. Focusing on Placcess for single-use plastic as an access requirement⁶⁷ would firmly embed and harmonise these discussions within the aims, scope and purpose of the legislative framework concerning the non-discrimination and equality of people with disabilities. It also brings to the fore the fact that environmental care and choices are important to people with disabilities. Placcess can also be read as an elongated form of ‘places’, indicating that it is a concept that can and should be applied to environmental legislation and policy beyond single-use plastic.

Placcess removes the focus on the needs of a particular group of people with disabilities as requiring or being entitled to continued access to plastic straws. Currently, environmental messaging such as the Big Plastic Count (no date), which although attempting inclusivity focuses strongly on the needs of wheelchair users in relation to the barriers created by brands, fundamentally misunderstands that many others who do not use wheelchairs may require access to plastic straws. ⁶⁸ Placcess also aligns with the aims and scope of both Section 20 of the Equality Act 2010, which identifies a commitment to the removal of physical, procedural and attitudinal barriers to access, and the need to provide auxiliary aids to overcome these barriers where necessary, and Article 9 of the UNCRPD, which emphasises and focusses on the accessibility of the built environment at all levels to ensure social and political participation.

To assist with this, the concept of Placcess is accompanied by a symbol of a green circle with a white upper-case P in the middle. This symbol could be displayed in dining establishments to discretely alert people with disabilities to the availability of plastic straws without tying availability to stereotypical notions of deserving or undeserving disabilities in the context of the right to access to them.⁶⁷ The symbol could also be made into a sticker to be placed on a debit card or translated as a QR code to accompany digital payments, meaning that bar staff or other servers would be aware of the customer's requirement for a plastic straw without a verbal exchange, removing the issue of assessment or judgement. This would also remove the need for unqualified staff and establishments to set criteria or practices which may lead to claims of indirect discrimination if not handled sensitively. Bar staff are used to engaging with symbols and applying initiatives like this, as demonstrated by the Challenge 25 campaign in the United Kingdom, ⁶⁹ other access-related concepts such as hearing induction loops and its associated signage, and the contactless payment symbol.

The design of the Placcess symbol is constructed in such a way as to highlight the continual barriers that people with disabilities face as represented by the circles, while the green colouring represents environmentalism and broader conceptions of environmental barriers beyond the built environment as highlighted by Kafer. Pre-existing symbol systems such as a traffic light system could be used in relation to single-use plastic. A red label could be applied to avoidable plastic packaging such as wrapping on fruits, vegetables, jar seals and multipack items. Orange could be used to highlight plastic packaging which is currently necessary but where non-cost prohibitive alternatives are available subject to manufacturing responsibility and investment. This could include meat, fish, and dairy. Green labelling could be designated as necessary plastic use; this would include medical plastic use and Placcess-based products.⁶⁷ In everyday life, this designation could be applied to some elements of processed food such as pre-chopped fruits, vegetables, meats and cheeses and ready meals which are sometimes required by people with disabilities to achieve and maintain independence. ⁷⁰

This focus on the role of commodities in facilitating access to rights and society should also shape a new proactive approach to access adjustments. Pearson argues for a shift from ‘reasonable adjustment’ to ‘Assurance of Rightful Access’. ⁷¹ This would emphasise the rights of people with disabilities to participate in society, rather than relying on the goodwill of others. This shift would also address the intersectional identities of people with disabilities and challenge the notion that their access to rights should be limited by economic considerations. At a practical level, the provision of accessible and sustainable packaging should be considered a fundamental right, similar to food safety standards. Retailers, as significant players in the supply chain, have the power to drive change through large-scale adoption of innovative, eco-friendly packaging solutions. This could lead to reduced costs and, ultimately, more affordable options for consumers. Government support is crucial in facilitating this transition. By fostering collaboration between producers, retailers, and consumers, and implementing policies like fair pricing mechanisms and consumer incentive schemes, governments can accelerate the shift towards sustainable packaging. Examples of such initiatives include the UK's Healthy Start grant and the bottle deposit schemes prevalent in parts of Europe. ^{72 , 73 , 74} By adopting a similar approach, governments can ensure that the move towards sustainable packaging is equitable and inclusive, benefiting both the environment and consumers.

However, Placcess also needs to be considered beyond its concrete application to products and services. It has an abstract and conceptual application to the newly emerging framework concerning the right to a clean and healthy environment as both a human right globally and a citizenship right nationally. It offers the opportunity for legislators and policymakers to embed a proactive, universally designed approach to accessibility, which recognises both a standalone and a composite element to the practical realisation of disability equality and the impact that this will have on environmental preservation in turn. If people with disabilities can participate in their societies, they have access to the possibilities and capabilities necessary to develop sustainable and accessible alternatives to plastic, which may mean that in future the concrete applications of ‘Placcess’ will no longer be required. If, however, we continue to rely on ‘reasonable adjustment’ as a means of addressing accessibility issues, then progress and legislative coherence will remain limited.

Conclusion

England's Single Use Plastic ban inadvertently creates barriers for people with disabilities. The exemption for straws in pharmacies contradicts the principle of ‘reasonable adjustment’, forcing individuals to seek out specific outlets. This highlights a broader issue within the UK's equality framework, where the focus on large-scale adjustments overshadows the everyday needs of people with disabilities. Environmental policies often overlook the specific requirements of people with disabilities, such as the reliance on single-use plastics for certain medical or dietary needs. The concept of ‘reasonable adjustment’ should prioritise the right to access, rather than imposing undue burdens. A more inclusive approach, such as Universal Design, can ensure that environmental solutions consider the needs of all individuals, including those with disabilities. By recognising the intersection between law, material culture, and disability, we can create a more equitable and accessible future. To do this, we must consider the intersection between the law and material culture beyond ‘traditional legal artefacts’ which are deemed worthy of academic time and attention and move our focus to the old adage that one man's [sic] rubbish may be another's treasure.