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The Human Rights Act: No Repeal

Posted in Public Policy

I had a lovely evening yesterday, as the guest of Hilary Gray, from Amnesty International Wirksworth and District, who organised a fascinating event on the Human Rights Act. The event, which was hosted by the School of Law and Criminology at the University of Derby, sought to provide opportunities for interested members of the public to discuss the Human Rights Act with legal academics. Specifically, the event was concerned with discussing why the Human Rights Act is good thing, in the face of the seemingly never-ending onslaught of negativity from certain quarters of politics and the press.

The evening began with an entertaining lecture from Professor Philip Plowden (Pro Vice-Chancellor of the University of Derby, and a human rights barrister) before the group broke off for expert-led small group discussions. I had a lovely chat with some students, amnesty international members and other interested parties about the potential of human rights for people living with dementia. I’ve uploaded my slides as a pdf handout here so anyone who is interested can take a look: Human Rights and Dementia Slides.

The general gist of our discussion was the importance of the Human Rights Act 1998 as a way of instituting a human rights culture in our society. Without the protection offered by the domestic incorporation of human rights, these fundamental rights of all people are too far removed from everyday life. Without human rights protections that are accessible to people in their day to day experiences of public services, bad care is just bad care. But when we realise that bad care can amount to inhuman or degrading treatment under Article 3, or an interference with respect for private life under Article 8, then the need to do something about it becomes ever more pressing.

Another right that is very relevant to people living with dementia, as it is for many people with intellectual and psychosocial disabilities of a range of different types is the right to liberty, under Article 5 of the European Convention. As luck would have it, the Supreme Court handed down their decision in the P v Cheshire West and Chester Council and another; P & Q v Surrey County Council  case yesterday too. The case was about what constitutes a deprivation of liberty under Article 5. Lady Hale said this:

“What it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.” [paragraph 46]

This judgment will hopefully provide some much needed clarity on the really rather vexed issue of the Deprivation of Liberty Safeguards in the Mental Capacity Act 2005. We can only hope that this (along with the recent report from the House of Lords Select Committee on the Mental Capacity Act) can mark the beginning of a more straightforward and careful appreciation of the rights of people with dementia and those with intellectual disabilities not to be arbitrarily deprived of their liberty. Importantly, of course, recognising when a person is deprived of his or her liberty does not mean that his or her liberty cannot then be restricted, simply that the arrangements for support must be kept under review, and that the least restrictive approach should be taken. I say hurrah for a common-sense interpretation of human rights.

One point that I made last night was that human rights good news stories, like this one about deprivation of liberty, don’t make the headlines in the same way that contentious issues like the deportation of terror suspects or prisoner’s voting rights do. After all, a headline like “Judges Rule Disabled People have the Same Human Rights as Everyone Else” just doesn’t spark quite the same controversy.

I’m wholeheartedly against any repeal of our Human Rights Act. I think that the Human Rights Act is good, useful, law that needs to be given the opportunity to make a difference to ordinary people’s lives. And respect for human rights can make a positive difference, if only society will let it.

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