There have long been attempts to “scrap” the Human Rights Act 1998, which incorporates the European Convention on Human Rights (ECHR) into UK law. But while none have gained traction to date, parliamentarians have recently raised concerns that the government could be wavering in its commitment to the act post-Brexit.
The House of Lords’ EU justice sub-committee said in January that it was worried to see the government change the wording of the political declaration it agreed with the EU, which sketches out a non-binding vision for what the UK’s relationship with Europe will look like after Brexit.
In its draft form, the declaration said that the future relationship should incorporate the UK’s “commitment” to the convention. However, by the time the final version was published in November 2018, that had changed to a commitment to “respect the framework” of the convention.
The committee wrote to the government for clarification and received a response from Edward Argar, the parliamentary under-secretary of state for justice, who stated that the government would not repeal or replace the act while Brexit is ongoing but that “it is right that we wait until the process of leaving the EU concludes before considering the matter further”.
Responding publicly, committee chairman Helena Kennedy said that this was a “troubling” reply, noting: “Again and again we are told that the government is committed … but without a concrete commitment”.
The prime minister is to consider repealing the Human Rights Act after Brexit, despite promising she is “committed” to its protections, a minister has revealed. This is, after all, a government that has always tended to regard the human rights of some social groups as nothing more than a bureaucratic inconvenience.
There is no justification for editing or repealing the Human Rights Act itself, that would make Britain the first European country to regress in the level and degree of our human rights protection. It is through times of recession and times of affluence alike that our rights ought to be the foundation of our society, upon which the Magna Carta, the Equality Act and the Human Rights Act were built – protecting the most…
The government had been criticised for excluding 16- and 17-year-olds from the scheme, particularly as they had been included in 2017 Law Commission proposals to replace DoLS that form the blueprint for the government’s plans.
Disabled trade unionists have called UN’s committee on the rights of persons with disabilities (CRPDthe TUC and unions across the country to campaign for the UN disability convention to be incorporated into UK law.
Disabled members of 22 unions, who were at the annual TUC Disabled Workers’ Conference in Bournemouth, voted unanimously for a motion calling for a national campaign on the issue.
The conference was held just a few months after the UN’s committee on the rights of persons with disabilities (CRPD) told a UK government delegation that its cuts to social security and other support for disabled people had caused “a human catastrophe”.
But delegates in Bournemouth heard that the UN Convention on the Rights of Persons with Disabilities (UNCRPD) was not legally binding in the UK, and so the government was free to continue breaching any of its articles.
Richard Chrimes has to crawl up and down his stairs several times a day – and crawl from his front door to his car – because there is not enough space to adapt his two-storey house to make it accessible for him or even to fit his wheelchair through the front door.
The Department for Work and Pensions (DWP) has just won a court case. It is one which will now set a staggering precedent. Because it effectively means the DWP can ignore benefit claimants’ human rights when it comes to the welfare state.
Back in November 2016, Jacqueline and Jayson Carmichael successfully beat the government in court over the so-called “bedroom tax”. They argued the tax was discriminatory under the European Convention on Human Rights (ECHR), as Jacqueline cannot share a bedroom with her husband because of her impairments. And the court agreed, setting a precedent for other claimants.
But as politics.co.ukreported, it was back in court in February. The DWP was using the Carmichaels’ case to try and stop tribunal judges using the European Convention on Human Rights (ECHR) to rule in favour of benefit claimants. Essentially, it’s saying that, if people claim it has broken human rights laws, this evidence will not be admissible under tribunals. And on Tuesday 20 March, a court agreed, ruling that benefit claimants can only argue against the DWP on human rights grounds in the High Court, not at tribunal level.
Three disabled people are taking legal action against a council that has banned them and other service-users from continuing to use a disabled people’s organisation (DPO) to support them with managing their care packages. It is believed to be the first case in which service-users have sought a judicial review under the government’s new Care Act 2014. All three claimants – Haydn Collins, Jenny Bolland and Slade Holmes – have been using Direct Payment Service Users (DiPSU) to support them in managing the direct payments allocated by Nottinghamshire County Council to fund their care and support, and say the DPO has provided them with a high quality service. But the council claims that a long-running probe by its own trading standards department, including, more recently, allegations of fraud against DiPSU, makes the organisation unfit to be providing services to hundreds of service-users across the county. DiPSU, which has been running since 2003, insists it has done nothing wrong and that
The government’s “bedroom tax” discriminates unlawfully against disabled children, the court of appeal has ruled. The appeal court, which overturned a high court decision, was hearing the case of two disabled grandparents who care for their disabled grandson in an adapted three-bedroom bungalow in Pembrokeshire, Wales. The court also ruled that the bedroom tax – or the spare room subsidy removal (SRSR), as it is called by the government – discriminates against victims of domestic violence, after hearing the case of a woman whose home had been adapted to include a “panic room” to protect her from a violent ex-partner. The appeal court had heard that Paul and Susan Rutherford had been found to be “under-occupying” their home and had their housing benefit cut by 14 per cent, even though their 15-year-old grandson Warren, who lives with them, needs 24-hour care from at least two people at a time. Two paid care workers stay overnight in their bungalow at least twice a week, but the
This is the latest chapter in a story that started last March when, in the Cheshire West judgement, the Supreme Court clarified the definition of a deprivation of liberty as a person being “under continuous supervision and control and not free to leave” the place they were in, regardless of whether this arrangement would be appropriate or ‘normal’ for a person with those particular needs.
This made it obvious that there were tens or hundreds of thousands of people who are deprived of their liberty by the arrangements made by the state for their health and social care who lack capacity to consent to this. Their right to liberty and security under Article 5 of the European Convention on Human Rights rights would be breached unless a due legal process were in place to review and authorise this. Without this, people deprived of liberty unlawfully would have a right to compensation.
Colossal increase in cases
The result was a colossal increase in applications to the Deprivation of Liberty Safeguards (Dols) system, which exists to allow authorisation of a deprivation of liberty in a care home or hospital setting only. But arguably the greater challenge concerned cases in other settings, for example for people with dementia or learning disability in their own homes or supported living who have very intensive care packages likely to amount to being under continuous supervision and control and not being free to leave.
For those cases, outside the scope of Dols, the deprivation of liberty can only be lawfully reviewed and authorised by the Court of Protection. Following Cheshire West, no one knew how many applications to court will have to be made to authorise or review such placements, but it would certainly be tens of thousands.
The onus would on the public body responsible for the situation to bring the case to court – usually the local authority or CCG which commissions the care package that may amount to a deprivation of liberty.
In the light of Cheshire West, the court processes previously in place for handling these cases, geared and resourced to deal with a couple of hundred such cases a year, needed serious rethinking.
This is what Court of Protection president Sir James Munby was trying to achieve in proceedings, which came to be known as ‘Re X’, in which he pulled together a sample of relevant cases, and convened a hearing in June 2014. At this, many individual parties, as well as representatives from government, local government, the Law Society and other interested parties, addressed him on the kind of process that should be implemented.
In August and October 2014 Sir James Munby published judgments in which he set out his thinking on some of the key procedural and practical issues. He asserted, for example, that it was permissible for a process to review a deprivation of liberty without P (the person deprived) being a party to proceedings, and that while such cases must be reviewed by a judge, rather than a court official, this could be done on the papers, without a hearing, where there was no substantive dispute.
Reflecting these judgments, a new practice direction and Court of Protection form (COPDOL10) were published in November 2014, establishing the ‘Re X’ process along these lines, and a raft of judges around the country have been trained up, ready to deal with the expected flood of cases. There’s also been an amendment to the Court of Protection Rules, due into force on 1 July 2015, which requires the court to consider whether P’s participation can be secured and interests protected in another way, without being a party to proceedings.
Two of the individuals in the Re X cases went to the Court of Appeal arguing, among other things, that a process determining their deprivation of liberty without them being a party was not fair and breached their human rights. Others joined the appeal on related issues for a hearing in February 2015.
Each of the individual appellants had in fact been made a party to the proceedings to review their deprivation of liberty, and so had arguably no standing to say that they were adversely affected by the Re X approach. That said, when the court did hear argument about the issue of party status, there was a lot of doubt that the process could be fair if P was not to be joined as a party.
The judgment published this morning includes a fully reasoned contribution from each of the three judges, led by Lady Justice Black. The headlines are that:-
Though sympathetic with the challenges facing Sir James Munby, all three judges were critical of the unorthodox approach taken to deal with the issues (for example, in paragraphs 58, 127 and 146 of the judgement).
However, they concluded that the Court of Appeal had no jurisdiction to overturn the ‘Re X’ process, which should instead be properly challenged by judicial review against the practice direction (paragraph 50).
Crucially, they all said that if they actually did have the jurisdiction to decide this, they would have said that P should be a party to any deprivation of liberty proceedings.
Why P should be a party
On the last point, Lady Justice Black said: “…it is not appropriate in my view for P’s participation in proceedings to turn in any way upon whether he wishes to participate, or indeed on whether he expresses an objection to the form of care that is being provided or proposed. There is too high a risk of slips ups in such a scheme. Article 5 requires greater protection from arbitrariness.
“I do not go so far as to say that no scheme in relation to deprivation of liberty would comply with Article 5 unless it provided for deprivation of liberty proceedings in which P was formally a party … [but] given the tools presently available in our domestic procedural law, I see no alternative to that being so in every case.” (paragraphs 103-104)
Lady Justice Gloster said that Sir James Munby’s conclusion that P need not be a party “is not consistent with fundamental principles of domestic law and does not provide the degree of protection required by the Convention or the Strasbourg jurisprudence” (paragraph 127). Lord Justice Moore-Bick said essentially the same thing at paragraph 171.
A fatally flawed process
Strictly, the views on the substantive issue of P’s party status is just non-binding as the court had already decided that it didn’t have jurisdiction to decide these issues in this appeal. But there’s no doubt that this leaves the current Re X process in confusion, if not fatally flawed.
There is already grave concern at the relative small take up of the Re X process, with only 200 or so applications made to date nationwide, and this reversal for attempts to streamline the process may not help encourage more engagement.
If P must be a party to any proceedings, with a litigation friend, and all the issues of access to representation and funding which that involves, this will inevitably be a lot less streamlined than Sir James Munby may have hoped, with consequences for delay, costs and the resources and time needed generally to get the huge number of cases through the process.
Law Commission review
Unfortunately, the ‘cavalry’ – the Law Commission proposals for reform of the whole system – is still some distance away. Though its consultation is due out in a few weeks on 7 July 2015, draft legislation is expected to be two years behind that in Summer 2017, and will take some time to implement, even if adopted. Though there may now be even more pressure to accelerate that timescale, with a debate in Parliament scheduled for tomorrow afternoon, it is hard to see any new system being in place sooner than 2018.
We await any formal response from the Court of Protection or the Ministry of Justice with interest, but this is not just of academic interest. At the frontline we risk being left with the worst of all worlds – with individuals identified as having rights without the practical means for these to be readily implemented, and already stretched public bodies with obligations that cannot practically be met. The cavalry cannot arrive soon enough!