Cumbria Law Centre  20th Anniversary Debate

14 October 2010, 7.30pm, University of Cumbria, Carlisle

"Human Rights In Divided Britain: Is the Human Rights Act essential to the struggle for social justice or a distraction from it?"

The 17th century English philosopher, John Locke, warned: "wherever law ends, tyranny begins."[1] One only has to think of the recent use of rendition flights for torture, or Guantanamo Bay, to realise that without the rule of law, and due process of law for all human beings, there can be no equity, no justice for citizens.

Historically, the highest law of the Roman Empire was ‘the safety of the people’[2] Of course, different laws applied to ‘different people’. The old saying that there is ‘one law for the rich, and one for the poor’, was of course rooted in historical fact.

When England’s King John first approved the Magna Carta in 1215, it wasn’t long before he was off having it annulled. History teaches us the importance of enshrining fundamental rights so that they are legally binding, universally applicable, and universally accessible.

The Human Rights Act does this. It provides an essential framework of minimum standards which every citizen in the UK can rely upon in their everyday dealings with the state, public bodies or businesses performing public functions.

However, tonight’s debate is about social justice – the creation of an equal, fairer, Britain. On the 10th anniversary of the Human Rights Act – and the 20th anniversary of Cumbria Law Centre – we ask whether the Act is a distraction from the struggle for social equality? Can the Human Rights Act help us tackle social injustice in the UK?

Certainly, our Prime Minister isn’t a big fan of the Human Rights Act. His party were elected this year on a manifesto pledge to ‘replace the Human Rights Act with a Bill of Rights’.[3] As David Cameron said at the time, this was to encourage ‘greater social responsibilityand … so Britain’s laws can no longer be decided by unaccountable judges’.

But given the forthcoming £15bn of welfare benefit cuts over the next four years, one wonders what a Bill of Rights would enshrine? A right to be poor? And what about ‘greater social responsibility’? From the cuts announced by the Chancellor, we know this will come in the form of the State taking money from you if you’re unable to find work.

All of which is ironic, if the Coalition Government’s slash and burn approach to economics pushes Britain into a double dip recession as many respected economist predict. Resulting in a concomitant lack of jobs.

Are we witnessing the transformation of the welfare state into a modern-day Poor Law? Certainly, the re-introduction of the ‘work-house’ has yet to be mooted, but there are overtones of Henry VIII’s declaration that ‘idleness is the mother and root of all evils".[4]

We face unprecedented welfare and public funding cuts – and we will feel the full force of those cuts next Wednesday when the Chancellor announces his Comprehensive Spending Review. These political decisions represent a massive threat to social justice over the next decade; and indeed to a generation of children.

I would submit that there has never been a more important time in the post-war period to have a human rights framework incorporated into our domestic law.

Indeed, the role of law centres in the UK has never been more needed. It will fall to solicitors and advisors to challenge the worst injustices that are thrown up by the Government’s austerity agenda. And the Human Rights Act represents a vital tool in that struggle for social justice.

As I’ve noted, there has been much talk of repealing the Human Rights Act. However, this would be absurd, not least because the UK ratified the European Convention on Human Rights as an international treaty back in 1950. So, even if you scrapped the 1998 Act, those same rights under the Act would still exist, except you would have to access them before the European Court of Human Rights in Strasbourg.

In the 21st century, we now have a general consensus that we need to make it easier for citizens to access justice and dispute resolution; so why would you want to turn back the clock a decade, and made it harder for citizens to access their rights?

Over the last decade, many in the media have painted the Human Rights Act as a charter for criminals and the undeserving. Leaving aside the philosophical difficulty of promoting justice when a citizen is free, but suggesting that same citizen should have a lower standard of justice when they are accused of a crime or imprisoned, it’s fair to say the right wing press have misrepresented the Human Rights Act.

In 2002, the Lord Chief Justice Woolf said: "A democratic society is to be judged not by its success in catering to the needs of its privileged members or even its average ones. Instead, look at how it treats the poor, the disadvantaged, the ill - and the unpopular".[5]

The late Lord Bingham said: "Which of the [Convention] rights ... would you discard? Would you rather live in a country in which these rights were not protected by law? ... the rule of law requires that the law afford adequate protection of fundamental human rights".[6]

So precisely how does the Human Rights Act help vulnerable citizens? Given the constraints of time I would ask you to look at the website: www.ourhumanrightsstories.org.uk It comprises of many fantastic examples of how the Human Rights Act has been used to improve the lives of vulnerable people in the UK. Most of the cases are unreported and have never reached court - and that's the point, by educating and empowering organisations and people about their rights we can make such a big difference. (See endnote for examples).

Another area where the Human Rights Act is fundamentally important is ensuring that citizens are able to access the court – with the right to a fair trial - in terms of Article 6. From Govan Law Centre’s perspective, this has become a stark problem in the ongoing unfair bank charges campaign.

UK banks have sought to remove customer’s claims from the small claims system to the ordinary court track or procedure, where there is full and unlimited exposure to court expenses. If I can give you an example of a Scottish case where we act – Walls v. Santander UK plc.

In this case, the bank wanted the case transferred to the ordinary court because of legal complexity – however, our client was not eligible for civil legal aid and we argued in relation to Article 6 that if the court allowed this to happen our client would effectively be ‘priced out of justice’, and be forced to drop her claim for fear of costs.

In effect, large companies are able to use their financial wealth to force customers to drop their legal actions. Unfortunately, we were unable to persuade the court in Walls v. Santander to keep the case on the small claims track to secure Mrs Walls article 6 right to a fair trial – and a case has now been raised before the European Court of Human Rights against the UK.

Sadly in Sharp v. Bank of Scotland - another bank charges test case which was transferred out of the small claims track - our client had her civil legal aid refused this week because the cost of fighting her case would exceed the value of her small claim! But at least we can appeal this, and use the Human Rights Act to argue that the legal aid board in Scotland has got this wrong and acted in breach of Article 6.

All of these examples demonstrate how the Human Rights Act is an essential platform in the struggle for equality and social justice in the UK.

And the good news is that it's unlikely that the Human Rights Act will be repealed given the stance of the Government’s LibDem partners. For example, at the recent LibDem Party conference, Minister of State for Justice, Lord McNally, said ‘there will be no retreat over human rights on our watch’.

And so the challenge must be ensuring that human rights are transformed into remedies and successful outcomes for vulnerable citizens, particularly from a social welfare and public law perspective.

And I believe that community law centres – like Cumbria Law Centre - have a unique contribution to make in that struggle. We need more law centres in the UK, not less. Citizens need a greater understanding and empowerment as regards their rights, with access to real remedies, with appropriate advice and representation. In short, the Human Rights Act is now an essential source of equity; an essential tool in the very difficult struggle for social equality and justice in the UK.

1 John Locke, Second Treatise of Government, sec.202, 1689.

2 Cicero, The Laws, in The Republic and the Laws (Oxford) (2008) (Rudd ed) at 152.

3 http://www.guardian.co.uk/commentisfree/libertycentral/2010/may/19/human-rights-act-human-rights

4 http://www.spectator.co.uk/coffeehouse/6180888/cameron-must-take-this-chance-to-end-the-giant-evil-of-welfare-dependency.thtml

5 The Evening Standard, 18 October 2002.

6 Lord Bingham of Cornhill, The Rule of Law (Allen Lane, 2010), p84.

Mike Dailly

Principal Solicitor

Govan Law Centre

Glasgow

 

End note: illustrations

[community care]

In R (Bernard) v Enfield London Borough Council (2002), the failure by the council to provide suitably adapted accommodation for the applicant and her family amounted to a violation of her Article 8 rights under the Human Rights Act. Mrs Bernard and her family lived in a property in the London Borough of Enfield. Mrs Bernard was severely disabled, had limited mobility which required her to use a wheelchair. Council assessments confirmed the property was unsuitable for Mrs Bernard

The Council accepted that it was in breach of its duties under the National Assistance Act 1948, but no action was taken to meet the family’s needs following the initial assessment.

Mrs Bernard argued that leaving her in unsuitable accommodation for more than 20 months amounted to a breach of her Article 8 rights (right to respect for family and private life).

Article 8 placed an obligation on the Council to take positive steps, including the provision of suitably adapted accommodation, to enable Mrs Bernard and her family to enjoy their family life. The court said that suitably adapted accommodation was important not only because it would facilitate family life (for example enabling Mrs Bernard to move around her home more freely and help to look after her children) but also because such accommodation would secure her ‘physical and psychological integrity’.

The court said "In short it would have restored her dignity as a human being". The court also awarded Mrs Bernard £10,000 damages under section 8 of the Human Rights Act.

Govan Law Centre has been successful in using the Human Rights Act with the Chronically Sick and Disabled Persons Act where a young man with severe spinal injuries was placed in a retirement home who were unable to care for him properly. Without specialist care his life expectancy would be shortened by many years. We were able to secure a funding package so he could return to his own tenancy, with specialist care, and the ability to see his children on a regular basis.

[disabled persons]

The Downs Syndrome Association report a case where Mrs X had MS and her 13-year-old son had Down’s syndrome. He has a long history of self-harming and violent attacks on his family. The family had been receiving very limited respite care, and as a result, the son had not been out of the family home for the whole of the summer.

The Down’s Syndrome Association wrote to the Head of Children’s Services citing the Human Rights Act, Article 8. They argued that participation in public life was a human right. Within two weeks Y’s respite care was increased, he was referred to the local behaviour team for assessment and support and his parents were offered the opportunity to receive training on safe methods of restraint and behaviour management.

The Association have had a number of successes for their member. For example the right to freedom of inhumane treatment and right to family life prevented two disabled sisters in East Sussex from being moved out of their parental house into residential care because the local authority had issued a blanket ban on care staff to lift adults on their own.

The Association’s position is that "many disabled people are subject to actions and decisions that undermine their dignity in their daily lives, and disabled asylum seekers and refugees do not experience fair treatment where their needs are taken into account.

[asylum seekers]

The British Institute of Human Rights report on a case where a failed asylum seeker was living in accommodation provided by the National Asylum Support Service (NASS). NASS issued a ‘termination of support’ notice to the woman while she was giving birth in hospital.

She was a single mother and this was her second child. The notice period expired whilst she was still in hospital and upon return she and her children faced eviction.

After receiving training on the Human Rights Act, a manager at a voluntary organisation suggested to NASS that evicting the family in these circumstances could engage their rights under the Human Rights Act and may amount to inhuman and degrading treatment in terms of Article 3.

He suggested that they reconsider their decision before taking enforcement action. NASS agreed to amend the status of the notice, giving the voluntary organisation time to apply for support for the family under section 4 of the Immigration and Asylum Act 1999. The application was successful and alternative accommodation for the family was secured.

Avon and Bristol Law Centre were able to use a human rights argument quite successfully with a landlord. It was a same sex couple and the partner died and the landlord decided that meant he could get rid of the surviving partner. He believed that they could not be regarded as a couple in the usual sense of the law. In addition he raised the rent. The Law Centre successfully used a human rights argument and succeeded in achieving for the surviving partner that he was able to stay in the accommodation at the same rent.

[the right to protest]

The Human Rights Act has been very effective in ensuring that citizens can exercise their democratic right to protest. Five protesters held a peaceful protest during the Queen's visit to Wakefield. Silently, they held up posters demanding fair pensions for all. They were arrested and held at the police station for 5 hours. Liberty obtained damages for wrongful arrest and false imprisonment because the arrests were a disproportionate interference with the protesters' Article 10 rights.

[defending eviction actions]

Previously the case of Qazi v. LB Harrow [2004] had effectively ruled out an Article 8 defence to possession proceedings. However, a few weeks ago the European Court of Human Right in Kay v. UK ruled that the applicants evicted as a result of the House of Lords decision in London Borough of Lambeth v Kay had their rights under Art. 8(1) violated as a result of their inability to argue a defence in the county court based on their personal circumstances.

This decision suggests that future challenges to evictions may be brought on Article 8, and the court would have to make a determination once they have heard this defence. It could mean a delay for landlords in obtaining possession of properties as it would potentially be one more step for them to deal with. If the defence was successful there would be the potential that landlords would not recover possession at all.