I have been putting off writing about this, and indeed putting off even reading the consultation because I knew it was going to make me angry. But I read it last week, as the window for response was closing and has now closed. And guess what? It made me angry
My irritation started early in the document, with all of the rhetoric about rights currently being applied to benefit individuals with ‘little regard for the rights of wider society’. If you’ve read a few of my posts, you’ll know that I have pretty strong views about how individual rights do benefit society. Applying rights universally benefits society by creating a more inclusive society. When rights are denied or reduced for certain sects of society, it is the thin end of a wedge that could lead to a reduction in all of our rights. It is incredibly difficult to decide where those lines should be drawn and I am very concerned at the rhetoric used in the document. It plays off the idea of ‘otherness’ by appealing to people’s belief that their rights will not be affected because they will never find themselves in these situations. But of course none of us can predict what will happen to us in the future.
I attended a symposium this afternoon, led by Bristol University’s centre for health, law and policy and was somewhat comforted to know that I am not the only one concerned and that brighter minds than mine are applying their minds to these issues. Dr Lucy Series has also done some excellent work gathering data to assist in her response to the reform consultation specifically on the issue of liberty within adult social care which I am sure is far more articulate and detailed than anything I could put together.
Something that stood out to me, was a lot of references to decisions being made contrary to the will of Parliament and beyond the power of the court. This also feels, to me, like it is feeding off some of the more troubling rhetoric that is circulating throughout the world at the moment. On my, admittedly not very detailed understanding, the courts cannot make decisions contrary to the ‘will of Parliament’ they are simply interpreting the legislation through the prism of the circumstances in the particular case and applying the tools afforded to them including the need to interpret legislation in a way that is consistent with the Human Rights Act 1998. Even in the document, limited examples are given on when this has actually applied in practice, because the Human Rights Act is not the only tool used when interpreting legislation and the courts also consider Parliamentary discussions and guidance, so as to reconcile all of the factors. So it seems like this is being exaggerated, or written by someone who doesn’t really understand how statutory interpretation works.
What also seems to have passed the author of the consultation document by is the fact that laws in this country take so long to be passed that, in reality, by the time they make it into force, a number of the principles that underpin it may now be out of date. Society’s ideals change far quicker than the statute book, and strict application of the type suggested in the document could, in the extreme, take us back to a situation where every document must be signed by hand and posted out because few legislative changes to permit to electronic signing and service were made. That isn’t the case currently, in part because the courts interpreted the law as it was written in light of the situation we now live in. And even with that, there are limitations to what the court will do, as evidenced by the judgement made regarding remote assessments under the Mental Health Act 1983, which I spoke about here.
So even just in the context it provides, there were signs that I was not going to be happy with the proposals.
But as the document drilled into more detail (although it still does remain relatively vague) my feeling of unease grew.
There is a heavy emphasis put on rights of prisoners and criminals. And this feels like a play directly out of some dystopian novel. Because it is very easy to convince people to reduce the rights of people they consider to be in the wrong and undeserving of protection. Except that the proposals will not just affect the rights of these wrongdoers, necessarily. I find the suggestion that the claimant’s own conduct will be used to determine whether rights have been breached, and the extent of those breaches concerning. Nothing is said of whether this will only apply to unlawful conduct, much less whether this will have to be intentional unlawful conduct. The burden of proof in civil proceedings is lower than in criminal ones, so a person may not be found to have actually broken any law or not complied with their ‘responsibilities’ to use the terms used in the document itself, yet still find this used against them.
Even putting aside the idea that only deserving people should be protected, which I find highly problematic, this is particularly concerning in a social care context. Even the criminal law makes allowances for acts commited when the individual was incapacitated or suffering from a condition that affected their decision-making. I have to hope that such allowances will be made in the draft Bill, but this doesn’t seem to be included in the consultation document at this stage
The consultation document also raises issues with the positive obligations created under the Human Rights Act and Strasbourg’s case law. It is couched in terms of protecting Parliamentary sovereignty, but appears to miss a significant point. The main purpose of any rights legislation is to protect individuals against abuses by the State. So it must, to some extent, have to provide for conflict with Parliament in order to be effective. And what positive obligations do is prevent public authorities from being able to avoid responsibility for breaches of rights commited by private individuals and companies, on the basis that they didn’t know about them. It requires them to act in cases where they know or ought to know that a breach of rights is occurring. In a world of increasing contracting out and privatisation, this seems like a fairly important safeguard. So I find the way these are talked about in the document, as if they are inherently problematic, worrying.
There are multiple examples given in the document of situations where protecting the rights of individuals creates burdens on public authorities. Deprivation of liberty for adults in need of care is one, and the burden of delivering ‘threat to life’ notifications is another. Call me a liberal, but I don’t see notifying someone that their life is threatened as being something that should be seen as an inconvenience. But again, this is hidden under rhetoric about how most people benefitting from this are undeserving anyway. But not all of them are, and this seems like something police should be doing, not something that is distracting from ‘real police work’.
Now I hope that the government isn’t suggesting that incapacitated adults are also undeserving of protection, but it is suggesting that preserving social care resources is more important than protecting such people from errors caused, in the most part, by lack of resources. So this feels to me like a way of avoiding giving social care authorities, police and other public bodies the resources they need to do their jobs properly. And then disguising it as a benefit to those same authorities.
Overall, the document sells the reforms on the basis of giving weight to decisions made by Parliament through a democratic process. Yet it seems to suggest that that process starts and ends with general elections, and that beyond that, we should all trust our MPs and the votes taking place in Parliament. Because we all know how well that goes…
This stood out to me in the criticism levelled at the Human Rights Act because it is used by campaigners to challenge legislation when parliament didn’t accept their concerns at an earlier stage. I am not sure how this is a bad thing. Indeed, the ability to challenge decisions made by governments because they have a negative impact is also an important part of a democratic society, just as much as free elections are. If the State’s decision cannot be challenged, then the mere fact that the decision was made by elected MPs does not make it free and democratic.
As the saying goes: absolute power corrupts absolutely.
The Human Rights Act is an important protection against that risk. It isn’t perfect and I am not saying I think it doesn’t need reformed. But I am saying that the direction this is being taken in is potentially worrying, and needs careful consideration.
In case it isn’t obvious from the fact I still haven’t identified the authority I used to work for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of either that local authority or organisation