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Cited in a OECD report, it is reported that half of all people with dementia may have experienced verbal, physical or psychological abuse or neglect at some point.
We feel strongly that the discussion of ‘dementia rights’ is very serious, and far too important to be left to marketing leaflets.
Dementia rights affect many people, such as carers or care home managers, but not least people living with dementia themselves.
And yet it sometimes feels as if ‘dementia rights’ have primarily been interpreted according to the needs of the people other than those living themselves with dementia. And, disturbingly, there is no distinction between ‘consumer rights’ and other rights.
A wider of range of people should be involved in the future discussions of rights. There are burning issues to discuss, such as glaring inconsistencies in current law. What about those who have agreed to hospital admission, or at least show no signs of objecting to it, but who may still be deprived of their liberty in various ways – for example residing in a locked ward?
We know in theory that every effort should be made to prevent the need to deprive someone of their liberty. It must be used for the minimum time possible. The legislation is supposed to protect vulnerable people. But why the perpetual schism between rhetoric and reality?
The English Law Commission’s own recent report“372 Mental capacity and deprivation of liberty” noted that:
“It is concerning that people often do not feel safe, treated with dignity or that their human rights are respected whilst detained.”
Dignity is an essential intrinsic part of human rights law. It is not merely an ‘adjunct’.
In response to the war’s atrocities, the UN’s universal declaration of rights in 1948 provided that “all human beings are born free and equal in dignity and rights” under its article 1.
But Catherine Dupré comments:
“Protecting and defining dignity through human rights law is not always a straightforward business, especially because it often raises, in the words of the European court of human rights, a question of civilisation.”
It is critical now that we have an inclusive, wide-ranging debate, about how to progress. For example, an independent reviewhas set up for England and Wales, led by Professor Sir Simon Wessely, to look not just at our mental health laws, but also how they interact with services, good practice and the wider care system.
We must concede that changing legislation alone will not be enough to improve the lives of people affected by dementia, but, still arguably, a wider range of people with dementia and care partners should still have a seat at the table while this legislation is being changed.
In the “competence model”, a patient with dementia might be deemed incompetent to make a particular treatment decision, the decision must be based on an advance directive or made by a substitute decision-maker on behalf of the patient.
It seems that CRPD article 12 makes it impermissible to deny persons with mental disabilities the right to make treatment decisions on the basis of impaired mental decision-making capacity and requires the replacement of all regimes of substitute decision-making by “supported decision-making”.
The crucial difference is, therefore, that the “UNCRPD states that everyone with a disability should enjoy legal capacity on an equal basis with others in all aspects of life.”
Whatever local focus groups and tick-box “engagement meetings” take place, it is essential we have a thorough discussionof ‘dementia rights’ including specialists in law and dementia care, especially when so much is at stake. This is especially important as there are so many valid voices and actors in the ‘civil society’.
It’s sometimes hard to see the big picture in the policy of England regarding dementia.
I don’t mean this in terms of the three key policy strands of the strategy, which is currently the Prime Minister’s Dementia Challenge. This extra layer was added onto the English dementia strategy, “Living well with dementia”, from 2009-2014.
There will be a renewal of this strategy next year. We currently don’t know what Government will be in office and power in 2015. But I am hoping the overall direction of travel will be a positive one. I would say that, wouldn’t I?
There are 3 dementia challenge champion groups, each focusing on 1 of the main areas for action: driving improvements in health and care, creating dementia friendly communities and improving dementia research.
But it is in my political philosophy to encourage a pro-social approach, not a fragmented one.
I’d like to see people working together. This can all too easily be forgotten in competitive tendering for contracts.
And things can be just as competitive in the third sector as for corporates.
This is the clinical lead for dementia in England, Prof Alistair Burns, who has oversight over all these complicated issues.
But we need to have a strong focus for the public good, especially as regards looking after the interests of people living with dementia, and their closest including all caregivers. State-third sector initiatives can work brilliantly for particular outcomes, such as encouraging greater sharing of basic information about dementia, but all concerned will hopefully feel that the people whose interests we want to protect the most benefit from a plural space with many stakeholders.
There is definitely a huge amount which has been achieved in the last few years. I do definitely agree with Sally Greengross, Chair of the All Party Parliamentary Group for dementia, that we should really take stock of what has worked and what hasn’t worked so well in the last five years, in our wish to move forward.
I say this, as it has come to my attention while reviewing the current state-of-play in policy and in research that there are potentially problematic faultlines.
1. One is diagnosis.
On the one hand, some people feel that we are under diagnosing dementia, and that there are people languishing in England waiting for a diagnosis for weeks or months.
Chris Roberts, himself living with a dementia, and a greater advocate for people living with dementia, often warns that it is essential that, despite the wait, that the diagnosis is correct.
I know of someone else in the USA who has battled on for years while waiting for a diagnosis of dementia, despite having symptoms of dementia.
On the other hand, there are concerns, particularly if teams in primary care are financially incentivised for doing so, that there might be a plethora of over diagnosed cases.
The concern here is that there might be alternative interests for why such people might be diagnosed, such as being recipients of compounds from drug companies which attach to proteins in the brain, and which might be useful in diagnosing dementia.
Or we are building a ‘new model army’ of people who are ageing, but being shoehorned into the illness model because of their memory problems?
2. Another is potential ‘competition’ between dementia charities.
Essentially, all dementia charities in England want the same thing, and will need to attract an audience through various ‘unique selling points’ through that awful marketing terminology.
But in the next few years we may see commissioning arrangements change where the NHS may involve the third sector doing different complementary rôles, such as advising and providing specialist nursing, in the same contractual arrangement.
The law might force people to work together here.
3. Another is the ‘cure versus care’ schism.
This debate has accelerated in the last few years, with the perception – rightly or wrongly – that cure – in other words the drive to find a magic bullet for dementia – is vying for attention with care. This narrative has a complicated history in fact, in parallel with moves in the US which likewise have overall seen a trend towards some people wishing for a ‘smaller state’.
But claims about finding a cure for dementias have to be realistic, and, while comparisons can be made with HIV and cancer about the impact of a cure has for absolving stigma potentially, such a debate has been done incredibly carefully.
For example, attention for cures and collaboration between Pharma and ‘better regulation’ constitute a diversion of resources away from care, potentially. In the NHS strategy for England, with social care on its knees, a drive towards personalised medicine on the back of advances from the Human Genome Project can end up looking vulgar.
I’ve also seen with my own eyes how the ‘cure vs care’ schism has seen different emphases amongst different domestic and international dementia conferences, with some patently putting people with dementia in the driving seat, and some less so (arguably).
4. Another is the exact emphasis of ‘dementia friendly communities’.
It is impossible to object to the concept of inclusivity and accessibility of communities, with recognition of the needs of people living with the various dementias.
But the term itself is possibly not quite right; as Kate Swaffer says, a leading international advocate on dementia, you would never dream of ‘black friendly communities’ or ‘gay friendly communities’ as a term.
Another issue is what the precise emphasis of dementia friendly communities is: whether it is an ideological ‘nudge’ for companies and corporates to enable competitive advantage, or whether it is driven by a more universal need to enshrine human rights and equality law.
As Toby Williamson from the Mental Health Foundation mooted, the need for an employer to make reasonable adjustments for cognitive disAbility is conceptually and legally is actually the same as the need for an employer to build an access ramp for a person who is in a wheelchair and physically disabled?
There can also be a problem in who wishes to be “the dominant stakeholder”. Is it the person with dementia? Or unpaid caregiver? Or paid carer? Or professional such as CPN, physio, OT, speech and language therapist, neurologist, physician or psychiatrist? Is it a dementia adviser or specialist nurse?
If we are to learn the lessons from the Carers’ Trust/RCN “Triangle of Care”, it is essential to learn from all stakeholders in the articulation of a personalised care and support plan? I feel this is important in whole person care if we are to have such plans in place, which recognise professional pro-active clinical help, in trying to assist in avoidable admissions to hospital.
But here we have to be extremely careful. An admission to hospital or appearance at A&E should not always be sign of ‘failure’ of care in the community.
5. Yet another source of division is that we all do our own things.
This is problematic, if we do our own things. We end up being secretive about which people we’re talking to. Or which conferences we’re going to.
Or if countries don’t talk to each other, even if they have similar aims in diagnosis, and post-diagnostic care and support (including the global dementia friendly communities policy). Or if we don’t share lessons learnt (such as, possibly, the beneficial impact of treating high blood pressure on dementia prevalence in one country).
Or if certain people become figureheads in dementia. But no man is an island.
I still feel that there’s a lot more that unites us than divides us.
Anyway, I’ll leave it to people on the frontline, and in communities, much more able than me, to work out what they want.
Like John Hirst, the former prisoner who studied law and put the UK on-the-spot about the proportionality of imposing a total ban on prisoners using the vote, David Cameron is not above the law. In a question on fox hunting once in Prime Minister’s Questions, Cameron voluntarily offered the information that he had not done anything unlawful; this was a stupid strategic error, as nobody had accused him of having done anything unlawful. The ‘rule of law’ holds the supremacy of the law, everyone is equal in front of the law, and nobody is above the law.
David Cameron does make the law however for the time-being. He can effectively do what he wants: hence the famous aphorism of parliamentary supremacy of Sir Leslie Stephen ((1832–1904), “If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it.” [The Science of Ethics, p. 145 (1882).]
Eastleigh was a tragedy for Cameron. Having set things up nicely on how his party would offer a referendum on Europe in 2015, which kept the Tory Euroskeptics happy for the time-being, the UKIP backlash was fully active last Thursday. Whilst UKIP does not have a single MP yet, they still threaten the Conservatives with the power to deny them an overall majority. And yet, David Cameron knows that he cannot unilaterally have special terms for the UK’s membership of Europe. Sure, directives can be applied by our Government according to parliament’s wishes, but if he wants anything more he will have to leave Europe. He is not above the law, but he could repeal the European Communities Act (though it would be difficult for him to do so). Even if David Cameron decides that he wishes to tear up the Human Rights Act, he will still have to submit human rights allegations to Strasbourg unless he decides not to become a signatory to the European Convention of Human Rights. Louise Mensch has described that the Human Rights Act itself is faulty, whereas most learned experts feel that the implementation of its analysis could be improved, and we are better off doing the proverbial in the tent than outside it. Leaving the European Convention of Human Rights denies us any moral authority on commenting on the human rights of other jurisdictions, and sets out a very dangerous signal in terms of reputation on our attitude towards inalienable human rights as per Delhi for example.
The more insightful conclusion is that David Cameron is desperate. He was initially tolerated as Prime Minister, but generally even this has deteriorated to being positively loathed by people within his party and outside of it. His Coalition, for example, has legislated for the Health and Social Care Act, which contains one clause section 259(10), which in conjunction with the Data Protection Act and Human Rights Act, is an area where the European Court of Human Rights could easily find the approach of GPs to data confidentiality unlawful; this could be determined one day in a test case similar to S and Marper v UK. It is helpful indeed that lawyers are able to act on poor legislation, as indeed they recently had to do with Iain Duncan-Smith’s mandatory work placement schemes (in the case of Cait Reilly). However, it is the democratic deficit, that laws appear to come from nowhere (and certainly not contained in any party manifesti at the time of the 2010 general election), which is most worrying. It is not so much a case of this Coalition ‘running out of things to do'; it is rather a case of this Coalition ‘running out of things to destroy’.
Unpacking the legacy of this Coalition is going to be extremely painful. George Osborne’s “badge of honour”, the triple A rating, was humiliatingly stripped off the Government, as Moody’s caste judgement on their deficit reduction plan. Construction performance hit a 41 month low this morning. Anyone with the most rudimentary understanding of economics will appreciate that the Coalition terminating ‘Building Schools for the Future’, and other key infrastructure projects, put the brakes on the economy which had been recovering in May 2010. Add to this an increase in 2.5% in the VAT rate, encouraged by corporate CEOs writing letters to the Times, and murder of consumer spending, and you can easily understand how corporate interests saw the UK’s economy being sent down the river. But it’s ok because we don’t have a functional BBC. The BBC, which is not covered by the Freedom of Information Act, is not obliged to explain its ‘creative authority’ for why its journalists never explain why the deficit exploded in 2009 due to a £1 tn recapitalisation of the banks. It does not need to explain either on the basis of its creative licence either why it barely mentioned the activities of the NHA Party in Eastleigh, or why the criticisms of the 2012 Health and Social Care Act (and the concomitant statutory instrument 2012/057) evade scrutiny. However, the reality is that the UK has been trashed like a Bullingdon restaurant party; whether this is the scrapping of the education support allowance, the implementation of tuition fees, the shutting of libraries, the poor regulation which allows ‘value’ horsemeat to be fed in school dinners, the privatisation of the NHS, the triple dip recession, rioting in the streets, or otherwise, the UK at the moment is a disgrace compared to what it could and should be. David Cameron’s “lurch to the right” will not get round that – his only way to get above the law is to rewrite it fast. The other way to get above the law is to annihilate access-to-justice, and by stopping access to the European Court of Human Rights, or any high street mechanism of achieving justice (for example, high street law centres or citizen advice bureaux). No comment.
John Smith QC made a speech on 1 March 1993 entitled “A Citizen’s Democracy” in which he called for a ‘new constitutional settlement, a new deal between the people and the state that puts the citizen centre stage’. This objective found its way into the Labour Party’s proposals for constitutional reform published in 1993, and reiterated at their Conference in that year where a two-stage process was outlined: the incorporation of the Convention, followed by the setting-up of a Commission to prepare a British Bill of Rights.
In 1994, Lord Lester QC introduced a bill in the Lords which was based on the New Zealand Bill of Rights which would give the ECHR a similar status in UK law as that accorded to European Community law, i.e. allowing courts to disapply future and existing Acts of parliament, which were incompatible with the ECHR, imposing a duty on public authorities to comply with the ECHR and making provision for effective remedies (including damages) for breaches of the ECHR.
Lord Lester QC, of Blackstones Chambers, is recognised by Chambers UK 2012 as a leading silk in Administrative & Public law and Human Rights & Civil Liberties, with commentary that he “remains a much-revered figure of the Bar when it comes to constitutional and human rights-related public law issues.” He“remains one of the first names out of the hat for solicitors who require a practitioner with a wealth of human rights law expertise. His knowledge of the law is such that he took a major role in the promotion of the Equality Bill, which subsequently came into force as the Equality Act 2010.”
Upon the advice of senior members of the judiciary, a second bill was introduced in February 1997 which, unlike the first bill, did not confer the power on the courts to strike down Acts of Parliament. The bill had been introduced shortly after the publication on 18 December 1996 by the shadow Labour Home Secretary Jack Straw of a consultation paper headed “Bringing Rights Home” which put forward the case for incorporation of the ECHR into domestic law. The rationale for introducing the Human Rights Act is clearly set out there:
The United Kingdom is bound in international law to observe the Convention, which it ratified in 1951, and is answerable for any violation. In some limited circumstances, the United Kingdom courts can already take the Convention into account in domestic proceedings. But public authorities in the United Kingdom are not required as a matter of domestic law to comply with the Convention and, generally speaking, there is no means of having the application of the Convention rights tested in the United Kingdom courts. The Government believes that these arrangements are no longer adequate, given the importance which it attaches to the maintenance of basic human rights in this country, and that the time has come to “bring rights home”.
The election of Tony Blair’s Labour Party in May 1997 led to the publication of a white paper on the bill – “Rights Brought Home: The Human Rights Bill”. The Bill received its second reading on 3 November 1997. The Liberal Democrats supported the bill, as did several cross benchers including Lord Bingham. The bill was opposed by the Conservative Party. Historically, the Liberal Democrats had been very supportive of the Human Rights Act; for example, here is Nick Clegg pledging to protect the Act last year.
“So let me say something really clear about the Human Rights Act. In fact I’ll do it in words of one syllable: It is here to stay!” (Nick Clegg)
If the Human Rights Act were abolished, citizens would be able to free to try to take a case to Strasbourg, unless the UK left the European Convention of Human Rights (some say that we would have to leave Europe virtually to achieve this). This argument has been explained at length previously on this blog (in this article). A further complication is added by the changing nature of the Strasbourg Court, as described in a recent article by Noreen O’Meara on the ‘Brighton Declaration’ (on the Human Rights Blog):
A second reform which strays into the territory of affecting the role and function of the Court involves a new mechanism entirely. The proposed ‘advisory opinion’ mechanism (para 19(d)) would allow highest national courts to refer questions to Strasbourg, and allow national courts to apply the opinions provided to the facts of cases. Once the national judge does so, this would (in all but exceptional circumstances) prevent a further application to the Strasbourg court.
Too much is left to chance. This human rights version of the ‘preliminary reference’ model in EU law is couched in language which could harm comity and access to justice. Its current loose drafting should itself be a warning bell to the negotiators. Every proposed element of the procedure is optional (the mechanism is opt-in, highest national courts would have discretion on whether to use it, advisory opinions delivered by Strasbourg would be non-binding; and above all, litigants would “not ordinarily” have recourse to the ECtHR in the same proceedings following a national court’s application of an opinion to the facts. The extent to which this initiative would impact the Strasbourg court’s docket would depend on its approach to delivering advisory opinions—the ECtHR may have considerable latitude here.
While this proposed mechanism may achieve aims of developing a more co-operative dialogue between national judges and the Strasbourg court, its strict approach against applications to Strasbourg where the mechanism is used seems to be a further attempt to relegating the EctHR’s function as the ultimate arbiter in human rights disputes concerning the Convention. Nevertheless, it’s possible that this measure may have more continental appeal and that a more robustly drafted version may prove workable. The ECtHR plans to issue a ‘reflection paper’ on this proposal in the near future.
The bill successfully negotiated the Commons and the Lords as the Human Rights Act , and entered into force on 2 October 2000.
"Responsible reform": Sharp criticism of the legitimacy of welfare reforms from international and domestic law
Embargoed for publication 10:00 9 January 2012
A new Report on the proposed changes to Disability Living Allowance in a team led by Dr S J Campbell, Sue Marsh, Kaliya Franklin and Declan Gaffney, raises fresh concerns about the legitimacy of the new welfare reforms for England and Wales. This Report provides much hope to disabled law students, as the Report paves the way for a comprehensive legal challenge to the Welfare Reform Bill for alleged breaches of international and domestic law, especially as regards discrimination, human rights and equality.
The new Report cites specific examples of existing concerns about the legitimacy of such reforms under international and domestic law, but the clarity of new precise statistics. At present, the rights of disabled citizens are protected by a range of domestic and international legislation, including the Universal Declaration of Human Rights, the International Covenant on Economic Social and Cultural Rights (ICESCR), the UN Enable Convention on the rights of people with disabilities, Articles 28, 26 & 4 (UNCRPD), Disability Discrimination Act 1995, the Human Rights Act 1998, and the Equality Act 2010. Under Equality Act 2010, it is illegal to treat one group of disabled people less favourably than another. If removal of DLA from people with so-called “lesser needs” removes or limits those choices, the UK Government may find itself in breach of their human rights obligations.
The Report provides troublesome reading for the Government regarding their “equality assessment”:
The Government Equality Assessment recognises that some disabled people will lose their entitlement to DLA. We dispute the Government’s claim that losing DLA will increase disabled people moving into work. We suggest the opposite. During the consultation many disabled people reported that losing their DLA would leave them unable to continue working, most often citing travel costs. !is misunderstanding underlines the Government’s deep misconception of DLA as an out-of-work benefit rather than a benefit which enables work for those disabled people who are capable of it.
This Report was entirely written, researched, funded, and supported by sick and disabled people, their friends and carers, as well as thousands more supported it through social media. It is report is a comprehensive presentation of the most relevant evidence available on Disability Living Allowance (DLA) and the proposals to replace it with a new bene?t, Personal Independence Payments (PIP). It gathers together existing information and analyses over 500 group responses to the Government’s Response to Disability Living Allowance reform (obtained under FOI request 1989). That the Report was so comprehensively produced with the relative lack of funds normally given for such exercises is a touching testament to the commitment of people genuinely distressed about this.
The Report’s authors argue that “reform must be measured, responsible and transparent, based on available evidence and designed with disabled people at the very heart of decision-making“. The authors unfortunately concluded that there was a clear indication that this had not been the case, and respondents to this particular consultation repeatedly warn that plans for PIP may be in breach of some or all of these. Overwhelmingly, they found that disabled people do not agree that there is a need for an entirely new bene?t. It was clear to them that whilst disabled people do support some reform of DLA they do not want an altogether new bene?t. The respondents believed it is a costly irrelevance during times of austerity. However, the Report provided that, “Disabled people are clear and emphatic – keep DLA and reform the existing bene?t.”
The Report finds that:
It was felt that people with mental health disabilities would be disproportionally affected by these proposals. This was deemed to be because they would suffer from the type of assessment proposed which would perform poorly at assessing fluctuating conditions, so called invisible disabilities, people with poor communication skills and people who might be unable to communicate changes of circumstances, all of which apply in particular to people with mental health disabilities. Furthermore people with mental health disabilities are disproportionally represented among those receiving lower rate DLA and are considered to be the most likely to suffer from any cuts.
The Report finds that:
Ironically it was felt that disabled people would be negatively affected by these proposals. Due to cuts of 20% there would be a significant loss of income to large numbers of disabled people who would lose valuable support. It was also reported that some might be unable to continue working and others would be unable to continue socialising. It was felt that there could also be a negative impact on their health and wellbeing. It was suggested that there might be a contravention of human rights in these proposals.
Crucially, this Report puts another nail in the coffin for the proposed argument that the the proposed Welfare Reform Bill is consistent with other sources of domestic and international law. This has already begun to be an area of close scrutiny.
Extracts from other recent documents are provided below.
The Welfare Reform Bill was introduced in the House of Commons on 16 February 2011 and was brought from the House of Commons to the House of Lords on 16 June 2011. The Parliamentary Under-Secretary of State and Minister for Welfare Reform, Lord Freud, has certified that, in his view, the Bill is compatible with Convention rights. The Bill completed its Committee stage in the House of Lords on 28 November and its Report stage is scheduled for 12 December.
THE LEGAL STATUS OF THE RELEVANT STANDARDS
1.21 Before considering the specific provisions of those treaties which are relevant, we think it is important to point out the different nature of the legal obligations imposed on the State by the European Convention on Human Rights on the one hand, and by human rights treaties such as the ICESCR and the UNCRC on the other.
1.22 All human rights treaties impose legal obligations, but the precise nature of those obligations differs. ECHR rights are the archetypal legally enforceable rights, fully justiciable by courts and capable of protection by legal remedies. Rights such as the right to social security and the right to an adequate standard of living, on the other hand, are subject to progressive realisation and, as such, are less susceptible of judicial enforcement. In our view, in any parliamentary democracy it is the democratic branches of the State, that is, the Government and Parliament, which should have primary responsibility for economic and social policy, in which the courts lack expertise and have limited institutional competence or authority.
1.23 It follows, from this difference in the nature of the legal obligations imposed by the ECHR and by other human rights treaties, that political accountability for compliance with the UK’s human rights commitments under the UN human rights treaties is in practice even more important than legal accountability. Parliament therefore has a key role to play in scrutinising legislation to secure compliance with the positive obligations and minimum standards to which the UK has committed itself in those treaties.
… 1.35 We are disappointed by the Government’s failure to carry out any detailed analysis of the compatibility of the proposals in the Bill with the UK’s obligations under the UNCRC, the ICESCR and the UNCRDP. The legal effect of these human rights obligations in the UK is different in kind from the legal effect of Convention rights, which are given effect in our national legal system under the Human Rights Act, but they are nevertheless binding obligations in international law and the Government should be able to demonstrate that they have considered the compatibility of legislative proposals with those obligations. We have commended a number of human rights memoranda from departments in the past which have done precisely that. We remind departments of this Committee’s expectation in this respect, which is explicitly referred to in the Cabinet Office Guide to Legislative Procedure.
This other published document also provides disturbing reading for those who observe the Rule of Law:
The proposals recognise the need to support those ‘who face the greatest challenges to leading independent lives’ but the overview impact assessment concludes that this may mean a reduction in support for some people. Whilst the stated intent to focus on those facing the greatest barriers to independent living is welcomed by the Commission, our view is that this aim does not justify and will not be achieved by putting targets in place to reduce the number of DLA recipients. It is critical that the assessment is about the individual and is not subject to targets or quotas based purely on reducing the number of DLA claimants. The Commission is concerned about the impact this could have on individuals’ standard of living, and could be counter-productive to government policies and initiatives to overcome barriers to work.
The Report’s authors must be congratulated on a comprehensive piece of work, on behalf of law students. That the Welfare Reform Bill may not be above the international or domestic “rule of law”, especially in relation to discrimination, equality or human rights, will give much need hope to disabled law students.
Sadiq Khan’s article in Labour List is entitled “Papering over the cracks of a divided government”, here.
I think a central issue in this must be whether there are any meaningful moves to get rid of the Human Rights Act. Many agree that the problems with it have not so much been with the literal legislation of it, but its interpretation.
A number of different reasons have been proposed for extending the Human Rights Act to a Bill of Rights. These have been discussed by the legislature, and include,
i) To provide a means of balancing rights with responsibilities;
ii) To provide a framework for our shared national values as part of the Prime Minister’s “Britishness” agenda;
iii) To educate the public, by providing greater clarity for people about their rights and responsibilities;
iv) To provide greater ownership of the protected rights than is the case with the HRA;
v) To include some recognition of the importance of social and economic rights such as health and education; and
vi) To protect the weak and vulnerable against the strong and powerful.
The Joint Committee on Human Rights (21 July 2008, 29th report) said at that point the following:
We regret that there is not greater clarity in the Government’s reasons for embarking on this potentially ambitious course of drawing up a Bill of Rights. A number of the Government’s reasons appear to be concerned with correcting public misperceptions about the current regime of human rights protection, under the HRA. We do not think that this is in itself a good reason for adopting a Bill of Rights. As we have consistently said in previous Reports, the Government should seek proactively to counter public misperceptions about human rights rather than encourage them by treating them as if they were true.
This must surely be a purpose of whatever government is in power and office now, surely? For example, Tom Hickman, of Blackstone Chambers, amongst other witnesses, to this Committee has apparently strongly disagreed that a Bill of Rights should be enacted purely because of perceived deficiencies in the HRA, if those deficiencies could be remedied by amending the Act itself.
I believe that the Labour and Liberal views could be reconciled, if Labour were to make its position much more in favour of civil liberties. The aforementioned Committee cites in the Report that:
We believe it is important that any UK Bill of Rights includes strong legal protections for freedoms such as freedom of assembly, freedom of expression, freedom from unreasonable search and seizure, and freedom from unwarranted intrusions on privacy, all of which are essentially negative liberties from state interference. For this reason, we believe any bill of rights should be called a UK Bill of Rights and Freedoms.
I have intuitively felt that a more natural political pact might have been between the Labour Party and the Liberal Democrats, but I have long lost this battle. The fact that we are at least having a discussion about this, in an open way, must be good. I think we should, as a party, think about the direction in which we need to move on civil liberties (given the problems we had with ID cards, detention without trial, etc.), rather than our short-term electoral motives.
The Conservatives don’t like the Human Rights Act; the Liberal Democrats like it. Now they are in coalition, and have somehow formulated a position on control orders. Extradition is much more difficult, from the point of view of the legislature. The law of extradition from England and Wales was made less complex by the Extradition Act  which was a response to the raised terrorist threat in Europe. Extradition was made much easier.
The judiciary provides relative certainty in this world of uncertainty. The decision by the European Court of Human Rights to block the extradition of Abu Hamza, the radical Muslim cleric, to America to stand trial on alleged terrorist offences poses a challenge to the Coalition government. The Conservatives promised to repeal the Human Rights Act – but that would make no difference because the European Convention on Human Rights would still apply to British law and it is on this that the Strasbourg court relies for its judgments.
It is an absolute prohibition for a signatory to the ECHR to remove anyone to a place where they would be subject to inhumane or degrading treatment. Article 3 of the European Convention on Human Rights prohibits “inhuman or degrading punishment”. The article has a long history, expressly evoking the 1688 Bill of Rights, which prohibits “cruell and unusuall punishments”. Unlike other rights, Article 3 is unqualified, which means that a State is not permitted to justify a breach on any grounds. It is now uncontroversial (in the courts, at least) that to return a person to a country where there is a real risk that they will be in danger or torture, loss of life or inhuman or degrading treatment would breach Article 3. Therefore, the courts have no choice but to prevent any extradition or deportation which would put a person at serious risk.
Gary McKinnon has been accused of hacking to various U.S. computers. Gary McKinnon’s legal battle has included a number of appeals to the Administrative Division of the High Court. In July 2009, Lord Justice Burnton rejected his claim that, due to his mental condition, his detention would involve inhuman or degrading treatment or punishment which would, if committed in this country, infringe Article 3. The judge held that the bar for inhuman and degrading treatment had been set high in previous cases, and stated that McKinnon also claimed under Article 8, the right to private and family life, but this was also rejected, as his extradition was found to be a lawful and proportionate response to his alleged offending. Unlike Article 3, Article 8 is a qualified right, which means that it can be overrided if there is a strong public interest in doing so.
The case has now been adjourned by the Home Secretary so she can consider the medical evidence afresh. Geoffrey Robertson QC calls this a test case for principles and suggests that the Home Secretary’s “main difficulty will be to override her Home Office advisers who have for years fought an unremitting, expensive and merciless battle against this poor man and his indomitable mother” However, the legislature – or rather an important part of it – has meant this story has taken, for the time-being, a turn for the worse. Nick Clegg, last week, said it would be ‘better all round’ for the two not to discuss the details of the case, which has now been grinding on for seven years. The Americans are demanding the extradition of Gary, 45, despite medical experts warning he will kill himself if sent to the U.S. for trial. Mr Clegg had been implacable in his support for Gary in opposition. He stood by Mrs Sharp’s side at a demonstration outside the Home Office in December 2009.
What we do not have is clarity on the future of the Human Rights Act. Mr Ken Clarke, the Justice Secretary, said Britain would seek to kick-start reform of the European Convention on Human Rights (ECHR) and the European Court on Human Rights when it takes up a key role in Europe later this year. However, Lord Justice Woolf has signalled there is very little chance of anything changing because it would mean persuading 47 countries who are all signed up to the Convention. The Prime Minister has announced a commission to examine the creation of a British Bill of Rights and the country’s relationship with the European court. Lord Woolf, who was the country’s most senior judge between 2000 and 2005, said a Bill of Rights would also cause conflict between the two.
The upshot for David Cameron and Nick Clegg – talk is cheap, when the future of human rights in individual people are at stake.
It is easy to blame the demise of ‘left, progressive politics’ on Nick Clegg. This vehement dislike for Nick Clegg is inadvertently encouraged by the spin and media factories of the Liberal Democrats to argue that a majority of people voted for a Coalition – this is not true, as no-one can vote a priori for a hung parliament (as such). I would argue that people wished to vote anti-Cameron instead, in favour of a left progressive agenda. In fact, the last thing they wanted was a Tory Lite in the form of Nick Clegg – but that’s what they’ve got.
This is what worries me about the future. I am still keen on the growth of left progressive politics. Labour conceded a long time its mistakes on the erosion of civil liberties (e.g. periods of detention in terrorism, ID cards), but needs to be aggressive in demonstrating that it had over a period of centuries a commitment to civil liberties, in fact. The Tories simultaneously argue that there has been an erosion of civil liberties and that the Human Rights Act is too ‘liberal’. The Liberal Democrats strongly indorsed the Human Rights Act (1998) before they got into bed with the Tories for political opportunism; the Tories violently opposed the Act, preferring an unenforceable aspirational Bill of Rights instead.
The future includes aspiring Councillors like Lisa Harding. Here is her website:
There is no doubt about Lisa’s commitment to her Party (the Liberal Democrats), nor indeed to her local constituency.
Indeed, a friend of mine on Facebook wrote as follows,
Really, really interesting that was. Thank you. If all councillors showed this much enthusiasm for the history of the place they are representing we’d all be a darn sight better off. Well done Lisa Harding.
There’ll be a cold day in hell before the Lib Dems ever get a vote from me. But with people like this on their team, they should be very proud. I shalll mail this to Mr Clegg and voice my approval after work
I will not go as far as to say the Labour Party as a whole should ‘work with’ the Liberal Democrats. After all, we know the rather unpleasant diatribe that Tim Farron and Nick Clegg have produced against Labour’s spending during the world recession. However, I would really like an appreciation that a progressive left agenda can be worked out on human rights. Take for example the disaster that was waiting to happen between the Tories and Lib Dems on control orders. And also – for any chronic patient in the NHS or any parent sending their kid to school in the state sector – such demonisation and vilification of the State won’t be tolerated any longer. The ‘Big Society’ has failed, and there is a reason for that.
The Fabians discussed this morning insecurity and inequality.
Whilst these are huge topics, I was impressed with the amount of breadth and depth of the discussion.
Whatever the economic solution to the global financial crisis is, and whether it will work in this country, we still have an on-going problem that has existed for the whole of this century in England.
Politically, the issue has been thrust to the front of the Labour agenda through the Fabian Society. Many blame Labour for not doing anything over the banking crisis, as regards the huge salaries of certain CEOs of banks. Economists on the whole appear to believe that the extra revenue that would have be gained from a high rate of taxing the bankers would not make a massive amount to the revenue of the Governnment. At the other end of the scale, despite the welfare state, there are still people living in relative poverty.
I suppose part of the problem for me is that the welfare state is not meant to be simply a desperate measure for those who’ve fallen off the edge of the cliff. It should support the successful, as indeed the NHS does support the acute medical care of all the Cabinet and Shadow Cabinet. Labour’s inequality divide, we all know, got massively worse under Blair and Brown, and this is not a record that socialists should be proud of. The recent experience of the Swedes, possibly, is that socialism is not seen as a relevant solution in this global modern economy. Taking this in its wider context, socialism should be for the good times as well as the bad, but the Conservatives attempt to shatter this notion through their repetitive chant that ‘we always fix the broken economy by Labour’.
Fairness is incredibly difficult to define. I have only seen attempts by the Law Lords in cases concerning grounds of judicial review, such as legitimate expectation or procedural impropriety. I actually have never seen it discussed at length in relation to a more obvious candidate, the Human Rights Act. Of course, we are yet to see how the case law of the Equality Act will develop. Insecurity, I sensed, was likely to be exacerbated when voters felt that circumstances were out of their control, akin to learned helplessness in depression. There are two scenarios I can immediately think of where this lack of predictability in events might lead to insecurity; the increasing globalisation of the jobs market (and immigration), and (b) the global financial crisis. Gillian Duffy, and many like her, may feel insecure about her family’s jobs, but in fairness to her (pardon the pun), in law there might be a proportional check on the freedom of movement – and that is a right to work in your domestic country – however contentious that would be.