Contratação pública responsável e autonomia: para uma inclusão social das pessoas com deficiência

Translated title of the contribution: Social public procurement and individual autonomy: a path for social inclusion of persons with disabilities

Research output: Contribution to journalArticle

Abstract

The United Nations Convention on the Rights of Persons with Disabilities, adopted in New York in 2006, affirms its vocation to promote an approach to the profound social disadvantage of people with disabilities, behavioural and physical barriers, in the several domains of life in society and thus experience conditions of extreme inequality. This is a shared reality in developed and developing countries, resulting in a risk of poverty and a factor of social exclusion. At European level, the Europe 2020 Strategy has set three priorities: smart growth, sustainable growth and inclusive growth. The mainstays of the strategy are raising the employment rate, improving the conditions for research and development, cutting greenhouse gas emissions, reducing early school dropouts, increasing higher education graduates and promoting social inclusion through reducing the number of people at risk of poverty and social exclusion. These goals are interlinked and are representative of the three priorities established. For example, improving educational attainment levels will contribute to employability and raising employment rates will, in turn, contribute to reducing poverty. In order to achieve the stated priorities set for smart, sustainable and inclusive growth, the strategy includes, among other initiatives, the “European Platform against Poverty”, so that social and territorial cohesion ensures a wide distribution of the benefits of growth and employment, and so that people in poverty and social exclusion condition can live in dignity and actively participate in society”. The Council statement on the European Year of Fight against Poverty left the challenge of protecting the rights of future generations by creating an equitable, participatory and supportive society. As Philip Alston stresses, solidarity is not enough, and we need different strategies that involve primarily listening to those in situations of extreme inequality. It is therefore necessary to give political visibility to poverty, mainly through economic analysis and to go beyond the discourse marked by moral values inherent to the fight against poverty. Inequality has a negative impact on economic development, and this is an instrumental argument that could and should be used in political discourse. According to Eurostat, in 2018, 21.7% of the European population, which amounts to 109 million people, was at risk of poverty or social exclusion. This risk was higher among women (when compared to men), for young adults and for those with long standing health problems. In 2018, the risk of poverty and social exclusion was significantly higher for people with long standing health problems (34.8%), compared to those without such limitations which represent 19.2%. According to the European Commission, “people with disabilities or those suffering from serious chronic diseases are often faced with enormous economic and social difficulties (…): around 6.5 million people at risk of poverty or exclusion report being persons with some kind of disability.” In the case of people with disabilities –disabilities understood in the broad sense adopted in the Convention– the risk of social exclusion and poverty is therefore particularly noticeable. Considering the goals and principles set out in the Convention and in Europe 2020 Strategy, we aim to analyse, firstly, the Directive 2014/24/EU and its transposition into the Portuguese legal order in the Public Contracts Code, secondly, individual autonomy in the new regime of the accompanied adult. Finally, we consider the scope of the policy regarding social inclusion of persons with disabilities in Portugal through the analysed legal institutes. Focusing our analysis in this particularly disadvantaged group, we will consider two recent changes in the Portuguese legal system. On the one hand, the transposition of Directive 2014/24/EU into the Public Contracts Code, and on the other, the change in the legal regime of the so-called disabilities of adult individuals in the Civil Code, by implementing a new paradigm, guided by the primacy of individual autonomy. This new model, established for the accompanied adults, is a cornerstone on the path to social inclusion of people with disabilities. Without individual autonomy and within a replacement model, these individuals have no freedom of choice, nor to decide or to contract. The contract is the ultimate source of legal relations and the strongest expression of private autonomy and personal development in its many aspects, namely the right to work. The right to work is enshrined in article 58º of the Portuguese Constitution and hence has constitutional protection. As the European Commission points out, “a job is the safest way out of poverty for all those who can work.” The new paradigm of the primacy of the individual and his autonomy is a major mainstay for social economy models to lead to inclusive growth based on equality and dignity of people with disabilities. It is about respecting the capacity that one is (still) carrying. It is therefore in this interaction of social economy and law that we will support our analysis, based on the new social model of disability contained in the Convention. Thus, we will explore two interconnected aspects: public procurement as an instrument of social policy and the protection of the autonomy of people with disabilities as a requirement for a policy of equality and social inclusion. Through our analysis we will conclude that several social policy measures were indeed adopted in the Portuguese Public Procurement Code. It is, however, arguable whether these measures have, so far, produced positive impact on social inclusion. The new role that social enterprises could play depends on the openess of economy to its participation, through the available mecanisms. Further consideration must be given to social and public awareness of its role and positive impact. The path for suistanable growth through responsible public procuremnent has been marked out. It is now necessary to promote a better use of public procurement for social purposes. As to individuals with some kind of disability and within the new framework for the acompanied adult, the new legal terminology, that abandons stigmatyzing concepts, and adopts a more flexible regime adapted to each individual´s needs, will certainly promote equality and social inclusion. The new model, which respects individual rights and is guided by minimal intervention to the strict necessity of measures to give support to individuals, promotes social inclusion. Time will proof its rightfulness.
Translated title of the contributionSocial public procurement and individual autonomy: a path for social inclusion of persons with disabilities
Original languagePortuguese
Pages (from-to)283-316
Number of pages34
JournalCIRIEC España. Revista jurídica de economía social y cooperativa
Issue number35
Publication statusPublished - 2019
Externally publishedYes

Keywords

  • Disability
  • Equity
  • Social inclusion
  • Social public procurement
  • Autonomy

Fingerprint

Dive into the research topics of 'Social public procurement and individual autonomy: a path for social inclusion of persons with disabilities'. Together they form a unique fingerprint.

Cite this