It’s small charity week: Why I love working at BIHR

By Stephen Bowen, Director, British Institute of Human Rights

 

Small charities are the unsung heroes of our civil society.medium_SBowen_0

In small places, close to home they have an impact way beyond their limited resources. Small national charities often lead the way in developing solutions to the challenges we face. They are remarkable for their willingness to focus on the often neglected and sometimes unpopular causes, working to champion the rights of people who are most at risk of disadvantage, poverty and exclusion.

The British Institute of Human Rights is a small national charity with a big Impact.

Across the UK, we help people and organisations understand that human rights are the standards by which a decent society should live. We help people understand that our Human Rights Act is a 21st Century Bill of Rights – a modern Magna Carta which celebrates our contribution to the rule of law over the centuries but which also recognises that we still have much to learn.

I love working for a small charity because of the sense of team work and the shared commitment that exists across the whole BIHR family. It is great to work somewhere that can respond quickly to changing circumstances, and which can stay true to its values however difficult the challenges become. And I love working for BIHR because we are connected, through our UK-wide Human Rights Tour and practice based work, to so many other people and organisations who are passionate in their belief that every member of the human family is of equal value, and that universal international human rights are ours to cherish and defend.

Respecting the right to family life: the Human Rights Act, parents with learning disabilities and access to justice

By Sanchita Hosali and Natalie Threfall at British Institute of Human Rights

“Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives.” (Huang, 2007)

The right to respect for family life protected by the Human Rights Act (in Article 8) goes to the heart of decisions involving children and care, reminding us to consider the both the rights of a child as an individual and their rights as a member of a family. Yet it is a human right that is often misunderstood in practice (and sometimes maligned in headlines and sound-bites). A recent decision in the family court, Re DE (A Child) [2014] EWFC 6, is a reminder that the local authority and its staff need to understand that consideration of the Human Rights Act is an important part of making fair and lawful decisions that respect the rights of the child and the family.

What happened?

The case concerned D, the child of a couple with learning disabilities. D had been subject to a care plan from birth, and had been living at home with his parents who were supported by the local authority. The local authority had become concerned that D’s welfare was deteriorating and made plans for D to be taken into foster care. This would be followed by a hearing to determine the future of the care plan. The parents’ solicitors asked the courts for an injunction preventing D from being taken into care before the care plan hearing. They said the injunction should be given using powers under the Human Rights Act, because removing D before the hearing was a disproportionate restriction on their right to respect for family life. The first judge rejected this as he did not believe he had the power to grant such an injunction.

Challenging the interim care decision on human rights grounds

At the higher court Mr Justice Baker found that the first judge had limited himself and his powers wrongly when refusing to grant an injunction under the Human Rights Act. Local authorities have a duty under section 6 of the Human Rights Act to make sure all their decisions respect the rights in the HRA. In D’s case the authorities had failed to respect the Article 8 rights to the family (discussed below). Therefore the courts, which also have a duty under section 6 to respect human rights in their decision making, can rely on the Human Rights Act to prevent an unjust decision. This means if a judge has the power to grant an injunction, a power which has recently been granted to the family courts, then they can grant an injunction under the Human Rights Act.

Did the care decision therefore violate the rights of D or his parents?

The right to respect for family life is a qualified right, this means officials can restrict this right when there is a law in place to allow such a restriction and when it meets one of the aims set out in the Act, e.g. to protect the rights of others. In any event, any restriction of the right should be proportionate. This means all alternatives should be considered, and the decision maker should not simply jump straight to the most restrictive option.

In cases of removing a child from the family home, looking at the situation through a Human Rights Act lens means recognising that the child and the family have rights which should be respected unless the tests of lawfulness, legitimate aim, and proportionately justify restriction. For example, where a child is at danger of serious harm or neglect the Human Rights Act places a positive obligation on officials to step in and take action (this underpins safeguarding).

In D’s case he was not in immediate danger, nor was there any threat of future danger. Yet he was taken into foster care before the hearing to determine the future of the care plan and the child’s best interests. If, after a full and proper hearing had been carried out, it was found to be in D’s best interests for him to be taken into foster care, the interference with his and his parents’ Article 8 rights would be justified. However, to take him into care when he was not in danger and before evidence could be heard from his parents failed to take the family’s human rights into account.

What does this mean?

D’s case simply (but importantly) clarifies that in such situations parents can apply to the courts for an injunction under the Human Rights Act. Whether the removal decision breached human rights, is a matter which must be decided at a full hearing.

However, it does have a broader significance in reminding officials about the importance of taking human rights into account at every stage of the decision making process. We have blogged before about cases where decisions that drastically alter peoples’ lives have been made before their human rights have been considered and the proper safeguards put in place, such as in RR v Milton Keynes Council where the local authority failed to apply for authorisation to remove an elderly woman from her home. The decision in Re D highlights once again the weight local authorities must put on all rights when making their decisions.

Hold on, there is an access to justice issue too

D’s case also raises access to justice questions, an issue of growing concern with recent changes to legal aid, which have had a particular impact in family and civil cases. Because of the specific nature of the original care plan and the changes that were being enacted, under the Children Act 1989 the family fell into a gap that left them without non-means tested legal aid. As the father had a steady, but low paying job, he was unable to access legal aid and his solicitors and barrister acted pro bono.

Justice Baker highlights this gap as being a real barrier to accessing justice, particularly for adults with learning disabilities involved in care proceedings. Being unable to challenge a local authority’s care decision potentially leaves many families separated and unable to challenge violations to their rights. In particularly serious cases, being unable to contest life altering decisions may also risk falling foul of the right to a fair trial under the Human Rights Act (Article 6), which applies in many civil issues including family law.

At the end of his judgment, Justice Baker specifically calls this point to the attention of the President of the family courts, Sir Justice Munby. This week he made the important decision to suspend proceedings in a case where contact arrangements for a child were complicated by his father’s inability to access representation or translation services (Q v Q).

That case deals with contact arrangements between a father (who was a registered sex offender) and his child. As part of the hearing both sides put their case and evidence to the judge, however in this case legal aid for the father has been discontinued, and without translation or representation he cannot take part in the case. Justice Munby said:

“that there could be circumstances in which, without the assistance of a legally qualified representative, a litigant might be denied [their right to a fair hearing] … these are matters which are required to be investigated in justice not merely to the father, but I emphasise equally importantly to the son, as well as in the wider public interest of other litigants in a similar situation to that of the father here … there is the risk that, if one has a process which is not fair to one of the parents, that unfairness may in the final analysis rebound to the disadvantage of the child.”

As a result, he has suspended proceedings, inviting the Justice Secretary Chris Grayling to intervene in the case and explain how the costs of the case, which is “necessary and fair”, should be met. If necessary, he says, it may be the court, as a public body with a duty to respect human rights as described above, which must meet the costs of the case and ensure access to justice. We await the Minister’s response…

 

 

The Holocaust and Human Rights: A Time to Remember

 

The end of this month sees the close of the Prime Minister’s Commission on the Holocaust, which is seeking views on what further measures should be taken to ensure the permanent, fitting and meaningful memorial and educational resources around the Holocaust. With reports of increased racism in the UK and increasing negative rhetoric around our human rights law, this is perhaps the most fitting time for us to remind ourselves about the all too often overlooked relationship between the Holocaust and the legal protection of basic human rights.

Universal human rights standards
It is easy to forget that until the Universal Declaration of Human Rights (UDHR) was adopted in 1948, there was almost no system that enabled criticism of – let alone action against – Government mistreatment of people within its borders, provided their own law allowed such abuses. As Professor Klug (2008) notes, “however morally repugnant, Nazi Germany’s racial purity policies were all in accordance with the law.”

Of course human history is littered with examples of the principles and values that underpin human rights – the struggle for dignity and equal respect has been the hallmark of so many social movements since the dawning of civilisation. Yet it was in “debris and ashes of a devastating world war” and the Holocaust that the world community drew up the UDHR, a document “crafted to celebrate the best that humans are capable of” (Klug, 2008).

The UDHR opens with the recognition that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind” and that to prevent “tyranny and oppression…human rights should be protected by the rule of law”. This was a turning point in the legal recognition of the relationship between people and their governments. As Stéphane Hessel, a French-German diplomat and writer, a concentration camp survivor who helped write the UDHR said:

We had affirmed the universal responsibility of human rights… This was the innovation: we are responsible for human dignity and the rights of the person. It was democracy’s catechism. In other words, we do not govern for the pleasure of power, but to guarantee the exercise of a democratic society.

Human rights here at home
It is from the UDHR that the international system of human rights protections was born, one which heavily influenced the development of our legal framework here at home. At the same time the UDHR was being drafted, the nations of Europe, where the impact of the Holocaust was so keenly felt, also came together to say never again. Championed by leaders such as our Prime Minister Winston Churchill, the Council of Europe was founded to promote democracy and protect human rights and the rule of law in Europe. As the UDHR was being drafted European leaders drafted the European Convention on Human Rights, a legally binding document to protect a small but significant number of fundamental rights. During this time Churchill spoke about the strength derived from “our sense of common…values” and of such a Convention being “guarded by freedom and sustained by law” which ensured that “people owned the government, and not the government the people.”

When the UK parliament passed the Human Rights Act (HRA) in 1998 it made our human rights more accessible for people here at home. It means there is now a duty on all our public bodies to respect, protect and fulfill our human rights. This duty which is not just about central Government departments, but also covers the police, NHS organisations and staff, social services, housing and education officials – the types of public services that we all bump into every day.

The Commission on the Holocaust Consultation
The Prime Minister’s Commission on the Holocaust is a national, cross-party commission representing our whole society. It has been established to investigate whether further measures should be taken to ensure Britain has a permanent and fitting memorial and meaningful educational resources for generations to come.

The Commission is an opportunity to call for the continued support of our educators in teaching about the Holocaust. It is also a real opportunity to remind the Government that human rights are an integral part of ensuring meaningful education about the impact and legacy of the Holocaust.

Human rights education and the Holocaust – what is happening across Europe?
In a 2011 study about human rights within Holocaust education in 26 European countries only the governments of the UK* and the Netherlands responded that human rights education forms no explicit part of the core curriculum. The UK’s official response said that the values related to human rights naturally form a part of school education, but that there was no direct recommendation made by the Government with regard to human rights education. Additionally, all Member States except the UK and Bulgaria, said that they ‘promote projects and initiatives which expressly develop connections between Holocaust education and human rights education’. The UK only stated that the Holocaust is of ‘great importance’ in the core curricula.

The study stressed that the main responsibility for human rights education and the Holocaust lies at the school level, but that visits to memorial sites and museums only can serve as a complement to this. In went on to state that teachers should have access to training in human rights education, supporting them to make the linkages between these and the Holocaust.

Yet human rights is disappearing from the curriculum
Previously the statutory requirements for key stages 3 and 4 stated “The curriculum should enable all young people to become responsible citizens who challenge injustice, are committed to human rights, and strive to live peaceably with others.”

However, the new curriculum has removed reference to human rights at Key Stage 3, instead referring to the “precious liberties” enjoyed by those living in the UK, something which BIHR believes is too vague and uncertain. Although a reference to human rights and international law has been inserted into the final Key Stage 4 text, we remain concerned. During the consultation stages BIHR (and many others) asked the Government to reconsider these reforms and to ensure clear references to our human rights laws and systems, there is no mention of the UDHR, the ECHR, or the Human Rights Act.

Time to remember, time to make the links
Our human rights history is more relevant than ever. This week headlines have been dominated by the news that racism is on the rise in Britain; an important reminder that social progress is not a linear journey. We do not automatically become a more tolerant society as time goes on. Our human rights laws are a vital tool for ensuring everyone has their basic human rights respected and protected and they are as important now as they were 60 years ago.

Right now the Commission on the Holocaust wants to hear views about ensuring meaningful memorials and resources. Now is the time for us to make it clear that:

The legal protection of human rights for all is a direct and lasting legacy to emerge from the horrors of the Holocaust. The Universal Declaration of Human Rights opens with the fundamental commitment that “all human beings are born free and equal in dignity and rights.” For sixty years the European Convention of Human Rights has protected and upheld these universal values, and by 1998 these were made the law of the land here at home through our own Human Rights Act. Now is the time to celebrate and strengthen our human rights journey with better public education and ensure our leaders have the moral courage to preserve what has been so hard won and to safeguard it for future generations.

 

Take Action! The deadline for telling the Prime Minister’s Commission your views is 30 May.

 

On 29 May BIHR’s Director, Stephen Bowen, will deliver a key note speech, ‘Human Rights: Lessons for Humanity’, at the national teachers conference ‘Empowering Young People to Change the World’, hosted by Royal Wootton Basset Academy and the Centre for Holocaust Studies. You can follow the discussions on twitter using #EYP2CtW

*Explanatory note; when referring to the UK in the report it only represents England. This is because the UK as a whole is the Member State of the EU.

Human rights law protects dignity in decisions about care

By Sanchita Hosali and Natalie Threlfall

Today the European Court of Human Rights has ruled that a London borough’s withdrawal of night-time care from Ms McDonald breached her human rights for almost a year before proper processes were completed. Significantly, in McDonald v UK the Court found a breach of the right to respect for private and family life in the provision of support services for a disabled person. The Court emphasises the importance the human right to respect for private life places on dignity, a principle which now clearly applies in provision and decisions associated with welfare support.

Removing the overnight carer

The case was brought by Ms McDonald, a former prima ballerina with the Scottish Ballet. Following a stroke Ms McDonald needed help to get around her house and was unable to use the toilet at night. The local authority – Kensington and Chelsea – originally provided Ms McDonald with an overnight carer, however this care package was suddenly withdrawn and she was told instead to use incontinence pads at night. As she was not incontinent Ms McDonald refused to do this, and understandably felt that to act as though she was incontinent was an affront to her dignity.

Making the link to human rights
Ms McDonald ended up taking legal action to challenge this decision, including on the grounds that withdrawal of care was an unjustifiable interference with her right to respect for her private life (Article 8 of the Human Rights Act & European Convention). This right includes ensuring public authorities respect physical and mental well-being, that decision-making is fair and dignified and takes account of the person. Recognising that there are not infinite resources, this right can be limited provided it is a proportionate response to the situation, which means it’s both necessary and lawful.

During the course of legal action, two local authority care plan reviews decided that incontinence pads were practical and appropriate. The UK’s Supreme Court rejected her case, describing the human rights argument as ‘hopeless’, and in 2011 all night-time care was withdrawn.

Seeking justice, the long road to Strasbourg
Ms McDonald’s last avenue for challenging the decision lay with the European Court of Human Rights. The Court reinforced the need for a broad approach to the right to respect for private life. The Court stressed that respect for ‘human dignity and freedom’ are the very essence of the European Convention on Human Rights, notions which will be increasingly significant with an aging population and finite welfare resources. The Court applied the reasoning from the Pretty case, in which a disabled woman, sought to clarify whether her husband would be prosecuted for assisting her to commit suicide. Although a very different set of issues, the European Court today confirmed that dignity is not only relevant to such extreme cases, but is also important in everyday issues such as decisions about care and support services. The Court found that the local authority decision meant Ms McDonald was forced to live in a way that “conflicted with [her] strongly held ideas of self and personal identity” and therefore her case fell within the right to respect for private life.

The outcome for Ms McDonald
Following withdrawal of the care package for overnight assistance, Miss McDonald’s needs were reassessed as being met through the use of incontinence pads. The European Court ruled this was a decision the local authority was entitled to make as they had carefully weighed Miss McDonald’s needs against the economic consequences of paying for an overnight carer. However, crucially, the decision to withdraw overnight care had been made before Miss McDonald’s needs were reassessed. Therefore for the period before the reassessment, the local authority was not meeting its duty to Miss McDonald and had breached her human rights.

Dignity and the right to respect for private life back at home
In this case the later decision to withdraw overnight care was not a breach of Ms McDonald’s rights, because the proper processes were then followed, and whether this is necessary is a decision that best rests with national authorities. However, The European Court’s reliance on the concept of “strongly held ideas of self and personal identity” sends an important signal to the UK courts and local authorities to make sure people’s basic human rights are given proper consideration, and cannot simply be ignored to save money. Today’s decision, although not a resounding victory for Ms McDonald, underlines the potential power of the human rights safety-net to make sure local authorities put the protection of our human rights at the heart of decisions about care and support.

 

Read BIHR’s Press Statement in response to the McDonald case here.

For information on human rights in health and social care, including real life stories of challenge and change which use human rights without court action download BIHR’s The Difference it Makes: Putting Human Rights at the Heart of Health and Care.  You can also download our Human Rights Pocketbook for Carers, Our Human Rights Guide for Older People and tour Mental Health and Human Rights Advocacy guide here.

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BIHR’s work to bring human rights to life in Mind’s membership magazine

Sanchita quote HR about us all

 

BIHR’s Deputy Director Sanchita Hosali was delighted to contribute to the 4-page human rights special in the latest edition of Mind’s Membership Magazine. The special feature takes a look at the Human Rights Act and how it protects people living with mental health problems from injustice and undignified treatment. As our Deputy Director Sanchita explains in the magazine “Human rights are about all of us, they are the basic protections that we should all have. When we give over power to people in positions of authority, human rights can help to give us power back.” 

Our real life stories on how the Human Rights Act helps in everyday life

Highlighting BIHR’s work with NHS Trusts and advocacy groups, including local Minds, the magazine features many of our real life stories on how the Human Rights Act is helping people with mental health issues across the country, simply by providing the language for discussion with services and not having to go to court. Our work helped Mary’s advocate to get her support once she left hospital to make sure her right to life was protected. Being able to talk about the right to liberty meant Amit was able to challenge nurses who kept telling him to stay on the ward even though he was entitled to leave and simply wanted to visit a local coffee shop. These and many other real life stories about the Human Rights Act supporting people living with mental health problems are explained in BIHR’s The Human Rights Act: Changing Lives and our highly acclaimed Mental Health Advocacy and Human Rights: Your Guide, a practical resource for service users and those assisting them.

Our advocacy guide, recently commended by the Care Quality Commission, was co-produced with partners on one of our Human Rights in Healthcare projects, including Mind at Brighton and Hove. As part of the project we helped the group to develop a human rights approach in their advocacy service, it’s great to see the continuing success of the project featured in the Mind Magazine. As Bill Turner, Advocacy Team leader, says “The team now regularly refers to specific rights when speaking to health professionals and service providers, and has invoked the HRA to raise concerns about physical abuse, the withdrawal of medication and the refusal to allow a patient to leave a ward.”

Working with mental health services: prevention rather than cure

The magazine also features BIHR’s work with NHS Trusts to practice prevention rather than cure a put human rights at the heart of services. For example we support Mersey Care NHS Trust to integrate human rights into learning disability and mental health services. This has included innovate work to support staff and to involve patients and carers in decisions, including issues about risk and how the service is run. As Irene Burns-Watts, Service Director, says in the magazine: “What is really powerful is how we have begun to translate human rights into people’s everyday care: supporting people with humanity, dignity and respect. We are beginning to see results, including a reduction in incidents and in the use of both restraint and medication”

Standing up for human rights

The article also looks at hoSanchita explain HRw human rights tend to get a bad press in the UK, with politicians often quick to criticise them. Sanchita explains how this is hardly surprising given that our rights are designed to limit those with power. She also discusses how suggestions that we should alter human rights laws are unhelpful, and what is needed is a genuine debate to increase understanding of human rights: “Before we talk about getting rid of the Human  Rights Act or changing it, let’s look at what it’s really doing.” Sanchita flags up our Annual Human Rights Tour, free pop-up events across the country which give people a place to get information about human rights, to debate and discuss what they really mean, and how this leads to very different conversations. Find out more about bidding for the 2014 Tour to come to your town this Autumn here.

Find our more

You can find out more about what Mind does and becoming a member, including receiving your own regular copy of the full Membership News here.

You can find out more about BIHR’s projects with partner organisations such as Mind Brighton by checking out our Human Rights in Healthcare Project pages here. Our latest resource features lots of real stories, The Difference It Makes: Putting Human Rights at the Heart of Health and Care, is available here. Finally, if you are living with mental health problems or supporting someone who is get your copy of BIHR’s Mental Health Advocacy and Human Rights: Your Guide here.

Capacity, Deprivation of Liberty and Human Rights: “What’s the harm, it’s for their own good?”

At the British Institute of Human Rights this is something we hear a lot, especially when we’re working on the care and treatment received by people with learning disabilities and capacity issues. Usually it’s a question that is well-meaning, but one which reveals deep-grained attitude that fails to recognise the most basic human rights we all have to be treated with equal dignity and respect. On 19 March the Supreme Court confronted this issue when deciding whether the care arrangements for P, MIG and MEG amounted to a deprivation of their right to liberty (also known as the Cheshire West case).[1]

This is an important case. It case is illustrates why and how the Human Rights Act should be the lens through which to view other laws and day to day practices. It has the potential to transform the way people in local authorities and those caring for others (especially involving the Deprivation of Liberty Safeguards and Mental Capacity Act) make decisions about people’s lives which put the person and their rights at the centre of the process, rather than relying on “best intentions”.

The Care Arrangements of P, MIG and MEG

P was a 38 year old man with Down’s syndrome and cerebral palsy who was cared for by 24 hour staff, in a house along with two other residents. He needed help with all aspects of daily life and went on accompanied trips out of the home almost every day. MIG and MEG were teenage sisters with learning disabilities who had been removed from a neglectful home. MIG lived with a foster mother whom the court noted she adored and MEG lived in an NHS facility for learning disabled adolescents. Both girls attended the same college during the day.Closed window

In MIG’s case she never attempted to leave the foster home by herself but would have been restrained from doing so it she had tried. MEG was sometimes physically restraint and received tranquillising medication. P was sometimes restrained in response to challenging behaviour.

Before the case got to the Supreme Court

The cases started in the Court of Protection, where it was found that P’s arrangements did amount to a deprivation of liberty, but as this was in his best interests it should continue, but with safeguards, including review.  MIG and MEG’s care arrangements were found to be in their best interests and not a deprivation of their liberty, and thus not be subject to review.

The Court of Appeal agreed that MIG and MEG’s were not deprived of Liberty, noting the “relative normality” of their situation. The Court also overturned the decision on P, finding that it was not a deprivation of liberty, introducing the idea of comparing P’s life to that of an adult in a similar situation with similar disabilities.

What the Supreme Court said

In P’s case the Supreme Court was unanimous that his situation amounted to a deprivation of liberty, and by a Logo UK Supreme Courtmajority (4 to 3) they also found the MIG and MEG had been deprived of their liberty. The leading judgement was delivered by Baroness Hale and it well worth the read, making it clear that human rights are universal to all and not lost simply because someone may have capacity issues.

The key point those involved in decision-making and delivery of care arrangements should bear in mind is that the test for whether a person is deprived of their liberty is whether they are “under the complete supervision and control of the staff and not free to leave”. The person’s compliance or lack of objection, the “relative normality” of the placement and the purpose behind it are all irrelevant to this objective question.

So what’s the harm?

Well quite a lot actually. As Lady Hale says in her judgement:

people with disabilities, both mental and physical, have the same human rights as the rest of the human race…This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings…Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with 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. (our emphasis)

Making rights real

Whether this case will indeed transform practice now depends on the extent to which practitioners are made aware not only of this case but of why and how human rights are relevant to their work (and not simply about the legal team). At BIHR we run a range of training and capacity building services and projects and we’ll certainly be raising awareness through our work. We have recently been supporting people and groups to give evidence to the Mental Capacity Act Committee, which found some significant gaps in the protection of people’s human rights. You can read our response to the Committee here and the evidence we submitted here.

Ultimately the British Institute of Human Rights is a charity, with no statutory mandate (or funding) to drive forward work to put human rights at the heart of health and care. That is why we work hard to form partnerships with service providers, practitioner bodies, regulators and advocacy services to help people know and understand their rights and duties and put them into practice (check out our new resource “The Difference it Makes”). Indeed, we were pleased that the Care Quality Commission recently recommended that all advocacy services and detaining authorities should distribute BIHR’s Mental Health Advocacy and Human Rights: Your Guide.

As the new structures for health and social care take root, we very much hope to work with NHS England, the Department of Health, CCGs and others involved in the system, to make sure that people’s basic rights are respected and protected.


[1] P v Cheshire West and Chester Council [2014] UKSC 19

Let’s remember women’s rights are human rights

 

This International Woman’s Day BIHR’s volunteer Charlotte is writing about the importance of remembering that women’s rights are human rights.IWD

This Saturday, the 8 March, is International Women’s Day and although it is a time to celebrate the great achievements of women throughout history it is also time to remember the work that still needs to be done to make sure women’s rights are being upheld. Ban Ki-Moon, in his United Nations Secretary General’s message this year said “realizing human rights and equality is not a dream, it is a duty of governments, the United Nations and every human being.” So we should use this opportunity to remind ourselves and those in power that violence against and injustice towards women is a human rights issue, and our law – the Human Rights Act (HRA) – has real potential to protect women from violence and to ensure accountability and justice when women fall through the gaps.

Violence against women here at home

Violence against women remains one of the most widespread human rights violations worldwide and is not restricted by country borders, cultures, ages or social status. The UK is not exempt from this devastating abuse of human rights. Just this week the European Union Agency for Fundamental Rights (FRA) released a survey on violence against women which revealed the extensive abuse experienced by women and girls across Europe. The FRA Director Morten Kjaerum said the survey “shows that physical, sexual and psychological violence against women is an extensive human rights abuse in all EU Member States,” and that, “the enormity of the problem is proof that violence against women does not just impact a few women only – it impacts on society every day.”

The UK came joint fifth highest for incidence of physical and sexual violence (44%). Even taking into account measures which have increased reporting within the UK, it is still the case that almost half of British women surveyed stated they had been assaulted. These statistics highlight how important it is women know about their human rights and how they are relevant to the investigation of violence against women, and making sure that public officials do not undermine basic rights.

The Human Rights Act – getting justice for women

Just this week we have seen how important the Human Rights Act has been for helping women to hold the Metropolitan Police accountable for serious failures in the investigation of sexual violence. The two women, known as DSD and NBV, were both raped by John Worby the so-called ‘black cab rapist’. John Worboy was eventually prosecuted and jailed for life in 2009. However, this happened after numerous women reported attacks which were not taken seriously, enabling John Worboy to remain at large. DSD was attacked Worboy in 2003 and NBV in 2007, both under similar circumstances. Both women reported their attacks to the police but neither were believed and their cases were dropped. In 2008 a routine computer check linked 4 assaults with similar circumstance and Worboy was arrested. But by then the police had 105 allegations against Worboy.

Whilst Worboy was eventually investigated and convicted under the criminal law, there still remained serious questions about the accountability of the police for their failures to act. DSD and NBV took a legal case against the police. The High Court ruled that the prohibition on inhuman or degrading treatment, in Article 3 of the Human Right Act included a positive duty on the Metropolitan Police to investigate particularly serious crimes such as rape and sexual assault. It was found that the assaults on the women, and the subsequent ordeal caused by the failure of the police to take the allegations seriously, amounted to inhumane or degrading treatment and breached Article 3 of the HRA. The judge found that systemic failures throughout the police investigation breached the duty to investigate and also found “tangible evidence of both DSD and NHR handsBV not being supported or believed.”

Speaking up for women’s rights, speaking up for human right

This case highlights the importance of the UK’s human rights laws and how the HRA can help us secure justice and redress when our rights have been breached by those with power and responsibility to protect our rights. The DSD and NBV case is a good reminder of why the Human Rights Act is important and the potential it has as a tool for change is realised through action. There are many economic and political challenges in the current climate, so now is the time to use the laws and levers we have to make real changes for women experiencing injustice.

Human Rights Beneath The Headlines – A view from BIHR’s volunteer Charlotte

Human Rights Benath the Headlines

Human Rights Benath the Headlines

On Thursday the 30 January Leigh Day Law, in London, kindly hosted the British Institute of Human Right’s (BIHR) event Human Rights Beneath the Headlines. With so much swirling about in the UK’s media on human rights BIHR decided to respond to the people who want to know more, who read the headlines and wonder if there is more to the story. The audience were invited to send in questions beforehand or to just throw out their must ask issue on media stories during the Q and A style event.

Helen Wildbore, Human Rights Officer at BIHR, was in the chair and joined by Adam Wagner, Barrister and founder and editor of the UK Human Rights Blog, Benjamin Burrows solicitor at Leigh Day and his colleague Elisabeth Andresen, who have worked on a range of cases including prisoner’s rights, the Dale farm eviction and health abuse issues, plus BIHR’s Deputy Director Sanchita Hosali. The panel shared their expertise to look behind some of the cases most often featured in the headlines, as well as shining a light on those human rights cases that rarely make it into the media. The headlines came from a variety of UK newspapers, broadsheets and tabloids, which ran stories on human rights issues.

Read all about it!

To start we looked at headlines relating to prisoner’s voting rights asking questions such as, ‘Why should judges in Europe be able to force us to give prisoners the vote?’ The panellists looked at the legal issues behind the prisoner voting cases and what the ECHR said in its judgement – that the blanket ban on prisoner voting was unlawful rather than all prisoners should be given the vote. The negative headlines on the issue also highlighted the continued confusion between the European Union and the European Court of Human Rights when it comes to human rights law – some questioned whether this was deliberate or not.

Event panellists

Event panellists

Other headlines posed the question – ‘It seems like the Human Rights Act is really only about helping people who should be punished not given more rights?’ As panellist Adam flagged these aren’t cases about damages, they are about justice, often for people who have been at the sharp end of Government decisions. As Sanchita noted, one of the functions of human rights is to help ensure justice and the rule of law in democracies, to protect us all including those who the majority or those in power might deem unpopular. This was echoed by Elizabeth who spoke about cases on Mid-Staffordshire and other major healthcare failings where the Human Rights Act provides families with a vital way of holding the authorities to account. Again, what human rights helps them with is to get an apology for the infringement of their rights or the abuse of their loved ones. In many cases if damages are rewarded they are often small and only in grievous cases.

Immigration and deportation was another hot topic, with so many headlines leading to questions like ‘Is it true that human right’s stops us deporting people like criminals and from having control over immigration? We need to be able to set the rules.’ The panel spoke about how the figures on these issues are fairly complicated and often not as clear cut as presented. The law allows deportation if a person has been sentenced to more than twelve months. In the experience of the panellists successful human rights cases preventing deportation tended to be the exception rather than the norm and often involved issues like the rights of the children of those involved, including British children. Also, stories on this issues can mix up immigration and migration with deportation based on criminal conviction.

Similar issues about facts and figures were flagged when we looked at the UK’s relationship with the European Court of Human Rights. As figures that had been released on the day of the event revealed the ECHR grants very cases against the UK and in general the UK Government does fairly well at the ECHR. The ECHR’s annual statistics showed that 98.85% of the 1,652 UK cases brought to the court in 2013 were declared inadmissible or struck out. Of the remaining cases it found the UK had breached human rights in 9 cases and had not in 10.

The final set of headlines focused on the issue of ‘stories about leaving the European Convention/ Court of Human Rights and maybe having a British Bill of Rights, how would this be different?’ Sanchita spoke about how in these debates in the UK what is often ignored is that the Human Rights Act is important not for its own sake but because it is the promise of international human rights made our law. All the panellist were cautious about debates on a new British Bill of Rights. In principle sounds like a great idea, but is the political climate of negativity about human rights the context for a new law? Some questioned how different a new law to make human rights sound more appealing would be.

Putting the confusion to bed

The event certainly helped to clarify some of the facts behind the headlines. It also gave the opportunity flag up the kinds of cases where the Human Rights Act helps people in everyday life get justice. It was revealing how there are news stories where human rights are of central importance but are never mentioned. Perhaps the media and political debates would be very different if these stories also mentioned how human rights laws help people, such as enabling those subjected to inhuman and degrading circumstances in hospitals and care homes to seek accountability and better treatment. Until then events like BIHR’s Human Rights Beneath the Headlines are very much needed!

NOTE: BIHR would like to thank to everyone who came along, to our panellists and especially Leigh Day for hosting the event.

Obsessed with certain papers or just a bit of balance in media reporting, including on human rights?

Today is Blog Action Day and the theme is human rights. To mark the occasion, BIHR’s Sophie Howes reflects on the role of the media in informing the public about human rights and calls for more of a balance when it comes to reporting human rights news stories.

Paul Dacre, Editor of the Daily Mail wrote a piece in last week’s Guardian entitled ‘Why is the left obsessed by the Daily Mail?’ The article is a response to the Ralph Milliband affair (where the paper claimed Ed Milliband’s father ‘hated Britain’) and puts forward the view that the widespread criticism of the Mail article was the latest attempt by the left to place limits on papers that dare to criticise:

The hysteria that followed is symptomatic of the post-Leveson age in which any newspaper which dares to take on the left in the interests of its readers risks being howled down by the Twitter mob who the BBC absurdly thinks represent the views of real Britain.

There was a bit of a furor following the Mail article about Ralph Milliband, but unlike Dacre I don’t see the BBC and Twitter as being solely responsible for this. I think the widespread media coverage was generated by a reaction from the general public and touched on something much deeper, that whilst prompted by the Milliband story was actually a response to a much wider problem. People are sick of reading misinformed and unrepresentative media reports on a whole range of issues, including human rights.

The public tell us they’re fed up with mis-reporting

There is a huge amount of misinformation about human rights reported in the media, and it is having a far more serious impact than many people realise. No one paper is responsible for this, and the media are not alone in this, some of our most senior political leaders are also perpetuating these myths. But the impact is still the same, most people get their information about human rights from the media, the media human rights story is always a bad one, leading many people to conclude that somehow human rights are a bad thing.

BIHR has been touring the country holding free to attend community workshops on human rights as part of our annual Human Rights Tour. We spend time at these events ‘fact checking’ stories about human rights in the media, to give people the opportunity to find out the facts behind human rights stories they read in the media. Here are our top three human rights ‘media myths’:

Prisoner Voting

What the media said: The European Court of Human Rights want to give all prisoners in the UK the right to vote

The facts: The Court ruled that a blanket ban preventing all prisoners from voting (a law that dates back to Victorian times) needs to be looked at again and a more proportionate response is needed. It’s up to Parliament to decide what this looks like and which prisoners would be granted the vote.

Catgate

What the media said: A migrant got to stay in the UK because he had a cat by using his right to a private and family life (Article 8 of the Human Rights Act)

The facts: A migrant was allowed to stay in the UK because he had demonstrated he was in a long term relationship with someone who resided in the UK. One of the pieces of evidence they used to demonstrate the relationship was real was the fact they owned a cat together (as per the Home Office guidelines). Owning a cat was not the reason the man was allowed to remain in the UK.

A charter for criminals

What the media said: The Human Rights Act is a charter for criminals, putting the rights of the criminal ahead of the rights of the victim.

The facts: Everyone in the UK is protected by the Human Rights Act. This means people who commit offences can have some of their rights limited or restricted but they still have basic rights and freedoms because they are human. It also means the Human Rights Act protects vulnerable groups such as older people, and victims of crime. In fact Keir Starmer, Director of the Crown Prosecution Service recently said in a media interview that the Human Rights Act has been ‘a real asset to victims and witnesses.’

Stories all about Human Rights – not that you’d know from much reporting

And here are our top three examples of the positive human rights stories we don’t see in the press:

Mid Staffordshire Hospital Scandal

The Mid Staffordshire hospital scandal was a gross abuse of human rights, where people died and were severely mistreated following extreme neglect and poor treatment in Stafford hospital. This extreme lack of dignity and respect isn’t just about values, it was also an abuse of legally protected human rights. So far over 100 of the families affected by the scandal used the Human Rights Act to get justice, to secure some accountability from those in power. Yet among the many headlines and column inches rightly generated by the Mid-Staff situation how many times do you remember reading about how important the Human Rights Act was for victims and their families?

Gary McKinnon

Our Home Secretary made no bones about relying on the Human Rights Act to prevent the deportation of Gary McKinnon to the United States to face charges of computer hacking. Theresa May said ‘Mr McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon’s human rights’. The role of the Human Rights Act in preventing this deportation -of a man with learning disabilities – can be contrasted with other deportation cases which more often than not seem to call for scrapping such protections

The thousands of examples of the Human Rights Act making a positive difference to people’s lives

The Human Rights Act has made the lives of thousands of people better, we just don’t read about it in the Press. Whether it is victims of violence being protected from cross-examination by their alleged attacker, or people with a mental health problem accessing their rights in hospital, there are hundreds of examples of the Human Rights Act making a positive impact to our lives.

At BIHR this is exactly what our practical work does – we help people, including those in public services and government, to take human rights beyond the courtrooms and into our everyday life. The Human Rights Act is not a magic wand, but it is an important law which can have real meaning in our everyday lives to make sure the Government plays fair and we are all treated with a bit of dignity and respect. Our work shows how the Human Rights Act helped Lisa and Ben get answers when they discovered unexplained injuries to their son during his hospital stay. Or how Mr and Mrs Driscoll, turned to the Human Rights Act to stop them from being split up and sent to separate care homes. Or the carers we work with in North-West England who can now stand up for themselves and their loved ones to get a fairer deals which makes sure everyone is treated with a bit of respect. Yet how many times do we read about these stories? It seems good human rights news just isn’t news – but is that true? Are we – the great British public – really just interested in bad news and sensationalism?

Looking forward 

The British public are a diverse bunch and no one media outlet, be it the Mail, Twitter, the BBC or otherwise represents the views of us all. Instead what we need is a more balanced view in our media of what human rights are, and what they aren’t, so the British public can engage in the important debates about the future of our human rights law that is going on at the heart of Government. After all, human rights belong to us, and it should be up to the people to decide their fate – but let’s at least try and make sure we’re having an informed debate. As things heat upover implementing the Leveson Inquiry and those in the media uphappy with proposed regulation models turn to our human rights laws to protect free speech maybe the time is coming for more balanced reporting on these issues.

Reflections from “a member of the public” on 60 years of the European Convention on Human Rights and what the future holds

Guest Blog: Paul Langton, winner of BIHR’s ECHR at 60 Blog Competition, who won a place at our recent conference on the future of the ECHR. During the political “Question-Time” panel, Paul identified himself as a “member of the public”, much to the audience’s amusement. Here Paul reflects on the event and the wider debates about the future of human rights protection in the UK

On Tuesday 3 September I had the privilege of attending a conference organised by the British Institute of Human Rights and the Law Society celebrating 60 years of the European Convention and which also asked “what does the future hold?” It was exciting to participate in this historic event which included contributions from politicians, academics, representatives from BIHR and the Law Society, including a keynote speech from the former European Court President, Sir Nicolas Bratza.

Celebration however was tempered with caution. Sir Nicolas spoke of the myths perpetuated about the Convention. Some out of ignorance, some out of malice but they contribute to a hostility that seeks to undermine the UK’s participation in the Court, the Convention and the Council of Europe. Following the event I did a quick survey of the media and for the most part – aside from those coordinated by BIHR – he anniversary was overlooked, apart from a particularly caustic piece in the Daily Mail. To reinforce the point further the following day in the House of Commons public gallery I was disheartened, but not surprised, to hear two Conservative MP’s refer disparagingly to the Human Rights Act in the same sentence as “asylum backlog”, “massive net immigration” and “uncontrolled transition” during a debate on the UK Border Force.

“…the majority of members find it hard to persuade themselves that public perceptions are likely to change in any substantial way as a result, particularly given the highly polemical way in which these issues tend to be presented by both some commentators and some sections of the media…” A UK Bill of Rights? The Choice Before Us (para 12.8), Commission on a Bill of Rights, vol 1, Dec 2012

A few days after the conference and I am left thinking that discussions about the European Convention should not be framed in terms of parliamentary sovereignty, the rule of law or our relationship with Europe. Important as these issues may be they are red herrings – and do not get to the heart of the matter.

The Convention is a challenging instrument because it asks us to face fundamental questions: To what extent are we prepared to uphold and defend an individual’s human rights and are we prepared for the moral and ethical implications if we don’t? It forces us to face squarely the discomfort in upholding those rights of an individual who may not offer us the same courtesy. Dangerous and malevolent people can be domestic citizens or entrants into the country. However should their fundamental human rights be violated because they are such a threat or because they have committed a heinous crime? These are not new questions. The London Cage established after World War Two has been documented in the National Archives, and the International Committee of the Red Cross, as the United Kingdom’s clandestine torture centre both during and after the war. I confess, to some shame, I am conflicted between a revulsion of what happened at the Cage and a sense, albeit a guilty one, that its occupants got their just desserts for participating in some of the most appalling crimes in history. And perhaps that is the weakness – I am seeking to resolve this inner dilemma by attempting to reconcile how I feel about these events when what is required is the dispassionate analysis and judgement by Convention law. Today, the Cage would be outlawed under the Convention. However the UK faces the same quandary as to what is “right”, every time it seeks to deport someone to a country where they are likely to be tortured and killed.

The possibility of votes for prisoners has proved incredibly controversial. The ruling by the European Court in Hirst v the United Kingdom (No 2) in 2005 on removing the “blanket ban” has predictably continued to receive a hostile reaction in the media and on the floor of the Commons. “If you break the law you cannot make the law” David Davis stated in a Parliamentary debate in 2011. “Votes for Villains” cried the Mirror in May 2012. “The very soul of our democracy’s at stake” exclaimed the Daily Mail in October the same year. Such reactions fail to advance the debate. The blog by Conservative MP Claire Perry in 2010 (who is cautious about the reach of the European Court) about her positive experience at a mock hustings in HMP Erlstoke, and the successful work by ex-offender led charity “User Voice” on Prison Councils are two examples of how prisoners were willing to engage in a democratic process and are able to benefit from it.

It is disappointing to think that Members of Parliament have made more of a fuss over this political hot potato, than the recent inspection at HMP Bronzefield by Chief Inspector of Prisons, Nick Hardwick. The inspection from this April, following an earlier one in 2010, reported that a vulnerable female prisoner had been kept in segregation for over five years to the point that her treatment was described by Hardwick as “cruel, inhumane and degrading”. These are words that were carefully chosen. As Hardwick himself stated “Much of this was outside the prison’s direct control and required a national strategy for meeting the needs of these very complex women – as exists in the male estate”. A deficient and unequal national policy present in the prison system that has been operating since at least 2010, and which led to criticisms couched in Convention language, suggests that these are the matters that Parliamentarians ought to lend their debating energies to.

Arguments abound that the European Court has strayed from its initial vision into areas that are best served by the domestic courts. The Convention was designed to prevent the atrocities of early Twentith Century Europe ever occurring again and by ruling in domestic cases brought before it by individuals it is suggested that it is attempting to micromanage member states of the Council of Europe, that its rulings are arbitrary, focus on trivial matters and that it undermines national sovereignty. These would be valid arguments if domestic law was full and complete, if parliamentary legislation always struck the right balance between state interference and personal autonomy and if representatives of the state exercised their powers without fault.

Sadly this is not always the case. The most withering criticisms made by the European Court is that there is “no remedy in law” when referring to domestic legislation, followed by the observation that powers are “neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse”. The UK, as a respondent state, has been subject to both these criticisms in Court cases – and rightly so. If anything should be learned from world history it is the lesson that it is the minor infringements of the rights of individuals and communities that lead to greater injustices.

Sir Nicholas called on delegates to “rekindle the fire” and in its 60th year the Convention is likely to come even under more criticism than ever before. How that fire is rekindled is a challenge to all. Attendance at the BIHR’s Human Rights Tour, a quick note to a Member of Parliament, signing up to a human rights blog or newsletter (BIHR’s are here)  – these are all beginning steps that can help to rekindle that fire. The temptation is to allow Parliamentarians to make the choices for us or to think that the Convention has lasted sixty years – surely it could survive sixty more? However, I conclude with a thought which sprung from an opening speech at the conference by BIHR’s chair, Francesa Klug. She reminded us the Convention was “hard to achieve but would be easy to destroy”. It is a solemn warning. The UK was one of the Conventions architects – it would be a bitter irony if we were the first to begin its dismantling.