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Will replacing the Human Rights Act make it harder to access justice?

Will replacing the Human Rights Act make it harder to access justice?
7 min read

The government is running a consultation on its proposals to revise the Human Rights Act and replace it with a Bill of Rights. Chaminda Jayanetti argues the plans do not take into account just how hard it is to access justice across the UK

At least they’re not scrapping it. After years of threatening to do away with the Human Rights Act, the government recently closed its consultation on a more limited set of proposals to amend the legislation’s functioning without the implausible nuclear option of tearing it up. The rights granted by the European Convention will remain untouched – but will they be within reach of the public?

The consultation reads like a greatest hits of tabloid columns on human rights laws – “Strasbourg,” prisoner votes, foreign criminals; it hammers home the argument that reform is required to maintain “public confidence”.

“The human rights inflation we have seen over the past decade and more, has led to a sense among many that the system has lost touch with common sense,” the consultation asserts. “But our human rights framework… needs to command broader public confidence.”

It’s an argument worth placing in the context of years of Conservative politicians feeding or whipping up outrage at human rights laws and “European judges”. The cases in question were often emotive, but not always of much practical consequence to the public. Having helped rouse public opinion on specific issues, the government is now using that public opinion as a trump card against judicial intervention in those issues.

The consultation talks a good game on parliamentary sovereignty, coming from a government that many MPs feel treats Parliament with contempt. A recurring theme is the implication for public spending when judges rule that trade-offs made to conserve “finite resources” breach people’s human rights. The subtext is that human rights have a maximum acceptable financial cost that “Parliament” – code for the government – should be free to determine. After years of austerity, it’s an unsurprising hang-up for the Tories to have.

Human rights will become the bread and butter of grandiloquent speeches, and not the stuff of day-to-day lives

A particularly telling moment is when the consultation raises the case of an ultimately unsuccessful human rights challenge to the 2013 benefit cap. “The government was still, however, engaged in protracted and costly litigation to defend a key area of its social policy, enacted following extensive parliamentary scrutiny and public debate,” the consultation says.

What the consultation does not say is that the benefit cap was introduced not because it saved money, but simply because – in the words of former welfare minister Lord Freud – it was implemented to win votes. Thus the consultation does not have to explicitly argue that human rights should play second fiddle to focus groups and YouGov polls, although the sentiment is implicit throughout.

One way to reduce the amount of human rights litigation is left unaddressed by the consultation – public bodies could simply comply with the law first time around. The Joint Council for the Welfare of Immigrants (JCWI) noted in its response to the consultation that: “It is desirable to reduce the number of human rights claims that are brought to court, but this should not be achieved by limiting domestic remedies for those who have suffered a violation of their rights. 

“Instead, better and more evidence-based decision-making by the executive at earlier stages would decrease the necessity for people to rely on the courts to enforce their rights.”

The government consultation frames the issue as one of legal ambiguity – that when the courts interpret legislation in a way that runs counter to Parliament’s intention, in order to ensure it complies with human rights laws, this leaves public bodies uncertain of how to legally discharge their functions. Public bodies may believe they are acting within human rights law only to later discover they were not. 

But legal arguments aside, away from Westminster the problem is that it is too hard for people to secure their rights, not too easy. 

The main legislation covering adult care, the 2014 Care Act, is shaped by human rights and equalities legislation, and is supposed to influence how councils arrange support while operating within financial constraints. However, the reality has failed to meet the Care Act’s vision. 

Belinda Schwehr, chief executive of adult care advice charity CASCAIDr, says councils lack legal expertise when making decisions.

“Lawyers in local authorities are not sitting there at the table when council senior managers are making policies, or changing practice, or coming up with new wheezes for coming in on budget. The lawyers have been marginalised to a position of only reacting to when there is a [legal] challenge. And that’s one of the problems – they’re just not there at the decision-making table at the time when they could remind managers about human rights.”

She says the burden is on adult care users to pursue councils, potentially through the courts, with no tribunal system available. “There is a culture whereby writing a polite letter to the head of service, that may have worked five years ago, but it wouldn’t work now. You’d be having to go to the legal department and possibly writing a letter before action, and unless you were writing it on headed notepaper as a law firm, it may simply just be put in a desk.

“People became afraid of challenging their care packages. People who are dependent on the state for care are extremely vulnerable to being deterred from asking for more money, because there is a message out there that there have got to be cuts, and therefore if you raise your head above the parapet, it may be your care package that is cut.”

The well-documented legal aid “deserts” – the result of the savage cuts to legal aid enacted by the Coalition – mean that legal advice and representation is hard to come by in swathes of the country. 

“If you have an advice desert and you have a population that is ignorant [of the law],” says Schwehr, “and you have people who are vulnerable and dependent and therefore afraid to challenge, you can as a country make an area of law wither away.”

She says the onus on individuals to bring legal action and the absence of legal advice leads to “a disregard for the rule of law [among councils], because the principle is that unless one is challenged one’s decision is valid”.

Similar problems exist in the special education needs (SEND) system. Children with special needs are mainly protected not by the Human Rights Act but by its neighbour, the Equality Act. But the SEND system requires individual parents to bring cases for discrimination. 

Richard Rieser, who runs education consultancy World of Inclusion and serves on the SEND tribunal, says this encourages schools and councils to cut corners in the knowledge that legal redress is unlikely.

“In my view most schools are competent, are delivering the national curriculum, are delivering what kids need, but they aren’t necessarily delivering what all the kids with SEND need because they don’t have the resources and they feel that they’re not going to be taken anywhere very much if they just discriminate.”

Schwehr believes change might come in the adult care sector when the care costs cap is implemented next year, with sharp-elbowed middle classes brought into contact with a failing council care system for the first time, and driving demand for advice on community care law, enticing legal providers back into the field. 

In a tacit acknowledgement of the disastrous impact of legal aid cuts, the government is now planning to restore some legal aid funding, primarily in criminal law. But it falls well short of restoring the cuts that were passed a decade ago. 

At grassroots level, whole systems of legal rights and safeguards are semi-functional at best. The government’s response has been described by human rights lawyer and academic Conor Gearty as “a dogs-dinner of a proposal full of grand but fairly empty gestures … with a few bullying attacks on the weak and vulnerable thrown in just to show off how tough, how hard our leaders truly are.”

The clear risk – if the courts are seen as sparing protectors of basic civil and political rights, with social and economic rights left to fight for attention and funding from Westminster – is that human rights will become the bread and butter of grandiloquent speeches, and not the stuff of day-to-day lives.

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