Human Rights Act: Are these cases trivial?

It may be worth while looking at a few recent cases under the UK Human Rights Act 1998 – now under threat from the new Conservative Government. They aren’t leading cases but they raise the question of what counts as “trivial” in the mind of the Government (which wants to “Limit the use of Human Rights laws to the most serious cases. They will no longer apply in trivial cases”) and what principles the Government is seeking to abolish with the HRA. In particular why they wish to abolish the principle that:

“Everyone whose rights and freedoms as set forth in [The European Convention on Human Rights] are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” (ECHR Art 13)

For that is what abolition of the HRA means: that individuals will receive only those human rights Parliament (in effect the Government) says they should receive; and legal barriers will be put in their way of those seeking human rights justice against the State and its offshoots. Section 6(1) of the Human Rights Act makes it illegal for a public authority, which includes a court, to act in a way which is incompatible with Convention rights. That will no longer necessarily be the case.

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Gender Recognition Act and an issue of privacy

A transgender woman has failed in her claim that the Gender Recognition Act 2004 breaches the privacy of those who have had surgery or other medical procedures towards gender reassignment. Section 3(3) of the Act requires that individuals reveal details of such medical procedures to a Gender Recognition Panel to back up an application for a Gender Recognition Certificate. Yet the Panel is empowered to issue the certificates to people who have had no such procedures as long as they can provide evidence of gender dysphoria and show they intend to live according to their chosen gender for the rest of their life.

A UK High Court judge rejected the claim by Helen Carpenter, who has transitioned from male to female, that the extra burden on those who had had or were contemplating medical procedures was a breach of Article 8 of the European Convention on Human Rights on privacy.

Section 3(3) of the GRA 2014 says that if the applicant for a certificate “has undergone or is undergoing treatment for the purpose of modifying sexual characteristics” or plans such treatment or has had it prescribed then it is required that a doctor’s report on her position “provides details of it”. Mrs Justice Thirlwall said: “Given that this information is necessary to the decision to be taken, that its dissemination beyond the Panel is prohibited, I am satisfied that the provision of the information required in paragraph 3(3) is necessary and proportionate to the legitimate aim. There is no incompatibility with Article 8.”

Conservative Bill of Rights: the State v the People

Does Britain need a new Bill of Rights? This is a question that very quickly becomes a different question: “Should the state impose wider obligations on its citizens – broader than those set out in general law?”

The answer to these questions, according to Conservative voices pressing for a “United Kingdom Bill of Rights and Responsibilities” is “Yes” – but only as long as the second question is answered “Yes” first. Rights, it is said, must be balanced by obligations to the extent that, arguably, they cease to be “rights” at all. Instead they become citizenship privileges, accessible only to those who meet certain criteria of moral goodness.

The Conservative Party is shortly to publish its UK Bill of Rights, a new constitutional “settlement” that it is said will “detoxify” the human rights issue. [NB: as of early 2016 this hasn’t happened yet]

It is therefore worth looking at an earlier attempt to create a Conservative Bill of Rights – the private member’s Bill promoted by lawyer Charlie Elphicke in 2012. Human Rights Act 1998 (Repeal and Substitution) Bill – publications pdf

This could be the basis of the new official Tory version (Elphicke is on the committee working on the document) – and it is rather revealing. Not only does it seek to dismiss the influence of the European Court of Human Rights in British courts, it creates a utopian vision of a Conservative society in which the people are required to measure up to standards set by the State and the State can, in certain circumstances, avoid human rights obligations to the people. Those rights become contingent rather than absolute.

This new concept of a Bill of Rights is far from the original 1689 version – a set of rights and protections that the people had against the Executive (ie the Government or at that time the Monarch). But it illustrates the problem with many such attempts to write down the constitutional underpinnings of any state – that they say a lot about current political obsessions rather than take an objective view of the likely developing needs of a particular nation.

The intention of the Conservative version, based on what we know of Elphicke’s, is to select a series of items that constitute “British values” – values that will be resistent to the claims of “human rights” made by individuals against the State and its offshoots. We return to this issue below (see “Moral obligations”) but first must look at the Elphicke view of the rule of law.

The bedroom tax and Laws’ Law of Non-Intervention

The “bedroom tax” judgment in the High Court is a severe blow to disabled tenants in council and housing association accommodation. But it is more. It is an attempt to redraft and pull back from the UK courts’ willingness to accept challenges to the Government via the European Convention on Human Rights.

In Lord Justice Laws the Government seems to have an anti-Strasbourg champion, ready to return to an age when judges would offer “due deference” to the governmental authorities and intervene in executive or administrative decisions only if they were “manifestly unreasonable”.

Sadly, Laws seems not to consider it “manifestly unreasonable” to impose what amounts to a fine on disabled tenants who need more space in their homes than the average person.

Laws takes a strong constitutional stance against judicial intervention in government decisions in his rejection of claims that the bedroom tax is discriminatory in R (MA and Others) v Secretary of State for Work and Pensions (30 July 2013).

His judgment looks like a remarkable attempt to rein in the courts when considering decisions made in the political sphere. He states:

“The cause of constitutional rights is not best served by an ambitious expansion of judicial territory for the courts are not the proper arbiters of public controversy.”

Judicial restraint requires that judges limit themselves to considering the process of decision-making, not the outcome of the decision itself – otherwise Laws fears judges could end up reviewing the substantive merits of almost all public decision-making – whether decisions are morally right or wrong rather than simply whether they were properly arrived at.

R (KM) v Cambridgeshire: care and confusion

Some frenzied activity in the media over the last couple of weeks has pointed to how significant adult social care is becoming as an economic, political and legal issue.

Let’s start with the UK Supreme Court case of KM (R (KM) v Cambridgeshire County Council) where confusion has reigned to the extent that, in a remarkable step, the court had to intervene to put right misleading reporting of the case.

KM is “a profoundly disabled man” of 26 who lives with his mother and siblings. He challenged Cambridgeshire County Council’s determination that £85,000 a year from the council would cover his needs to the extent of discharging the council’s duties under section 2(1) of the Chronically Sick and Disabled Persons Act 1970.

As a result of the grounds on which the Supreme Court had granted leave to appeal, the belief had grown among disablement and care charities that the case would put right a bad judgment in R v Gloucestershire County Council ex parte Barry (1997).

Put simply Barry was a case about whether, and at what point, a local authority could take account of its resources when  considering the social care needs of a disabled individual. The judgment of the majority seemed to suggest resources could be taken into account when deciding which of someone’s “presenting needs” should be met – ie deciding “eligible needs”. The judgment is not a model of clarity, however, and has caused confusion ever since. Part of the problem is the post-code lottery of some authorities being willing to meet a broader range of needs than others.

What the charities want is the maximalist position – that needs must be assessed (at stage one of the process) without looking at resources and then that those needs must be met.

But Barry and KM were looking at two different issues since KM had in fact passed stage one and stage two: The council had assessed his needs and agreed on his eligible needs. The crucial question in KM was not connected with resources; it concerned identifying the reasonable cost of providing the services.

Constitutional Reform Act 2005: Amendments on judicial appointments proposed 2012

Amendments to the 2005 Act are set out in full below
The Crime and Courts Bill 2012 has important amendments to Britain’s Constitutional Reform Act 2005 that reduce the independence from the Government of judicial appointments.

In particular the Secretary of State for Justice (aka Lord Chancellor), currently Kenneth Clarke, is to sit on the appointment panel for the President of the Supreme Court (while the sitting president would be removed) and Lord Chief Justice; whole sections on judicial appointments procedure are removed from the 2005 Act; powers to decide how to replace those sections are given to the Secretary of State (quasi-Henry VIII powers); as are powers to decide the make-up of the Judicial Appointments Commission (with a view to increasing the proportion of lay members compared with judicial members).

It is intended that the 12 UK Supreme Court justices should become a “maximum” of 12 (or full-time equivalents) with the Secretary of State deciding exactly what number is required.

There are also amendments intended to increase diversity such as provision for part-time judicial posts and a “tipping point” provision whereby diversity requirements can come into play if two judicial candidates are deemed of equal merit.

The changes are in Schedule 12 to the Bill. Since it is often difficult to read back to the original Act on the basis of amendments, Thinking Legally has stitched together the relevant sections of the 2005 Act with the amendments in the Crime and Courts Bill regarding judicial appointments and also diversity.