Winners and Losers

Date01 March 2005
Published date01 March 2005
DOIhttp://doi.org/10.1111/j.1467-6478.2005.313_1.x
JOURNAL OF LAW AND SOCIETY
VOLUME 32, NUMBER 1, MARCH 2005
ISSN: 0263-323X, pp. 34±50
Winners and Losers
Luke Clements*
This paper considers whether the Human Rights Act 1998 is, in itself,
capable of materially improving the lives of those who experience
social exclusion ± or whether it is likely to exacerbate their difficulties.
It draws on the relevant post-2000 research concerning the Act's
impact on socially excluded groups which suggests that the response of
the statutory agencies has been disappointing ± that `not being
proactive' has proved to be the most attractive option. It then
addresses the incongruity between the government's strategies for
combating social exclusion and civil justice.
INTRODUCTION
Writing before the introduction of the Human Rights Act 1998, a number of
authors warned that the Act might make little or no difference to the
injustices experienced by socially excluded people: that, in this context, the
much vaunted cultural content of the Act might come to be seen as
rhetorical. Sir Stephen Sedley expressed this view succinctly when he
warned of the risk that society's existing `losers and winners' would merely
become the same losers and winners under a Human Rights Act.
1
In this short paper I seek to assess the evidence as to whether the Human
Rights Act 1998 is, in itself, capable of materially improving the lives of
those who experience social exclusion ± by which I mean (amongst others)
people with profound physical or mental disabilities, unpopular minorities
(such as Gypsies), homeless people, chronically poor people, children in care
or permanently excluded from school, and recently released prisoners. A
group that could be described as `stranded victims', in the sense that they
have become isolated from any effective process for remedying the wrongs
they experience.
34
ßCardiff University Law School 2005, Blackwell Publishing Ltd, 9600 Garsington Road,
Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* Cardiff Law School, Cardiff University, Museum Avenue, Cardiff CF1
3NX, Wales
1 S. Sedley, `First Steps Towards a Constitutional Bill of Rights' [1997] E.H.R.L.R.
458.
To consider this question is not to rerun the socio-economic versus civil
and political rights debate, not least because the clearer articulation of the
positive obligations within the Convention has, in theory at least, softened
the boundaries between these two artificial classifications.
2
The backdrop to
this debate is more about whether a process-focused rights system (as
opposed to needs-sensitive system) can deliver substantive benefits for such
people. New rights may be open to all ± like the doors of the Savoy hotel ±
but in practice they prove more accommodating to the rich than the poor.
A recent case, HL v. UK (2004),
3
illustrates the point. HL has profound
autism associated with frequent episodes of very challenging behaviour. He
lacks capacity to decide where to live. He had lived in a psychiatric hospital
for almost all his life; however, in 1994 he went to live with two dedicated
carers. Three years later, when temporarily away from these carers, he was
taken to a psychiatric unit. Despite having the intention to keep him at the
unit and despite denying him contact with his carers for over three months, it
was argued that he was not deprived of his liberty because he was
`compliant'. He accordingly had none of the protection afforded to such
patients under the Mental Health Act 1983 (restricting treatment and
enabling the detention to be challenged).
The European Court of Human Rights held that he was detained; that any
suggestion to the contrary was a `fairy tale'. It followed that his rights under
article 5(1) had been violated. HL's case was only taken because of the
commitment of his carers. One is left to ask what would have happened if
there were no such concerned friends or carers? Despite this ruling, there are
today most probably tens of thousands of people in a similar situation to HL
(particularly elderly people with dementia) but without concerned advocates
and for whom this judgment will have no benefit.
THE ASPIRATION
The sales pitch accompanying the Human Rights Act 1998 was impressive:
from the Labour Party's briefing paper in 1996
4
to the Lord Chancellor's
flourishes during its second reading we were told that it would `nurture a
culture of understanding of rights and responsibilities at all levels in our
society'
5
and result in a human rights culture developing across the country.
6
35
2 See, for instance, Lord Lester of Herne Hill and C. O'Cinneide, `The Effective
Protection of Socio-Economic Rights' in Economic, Social & Cultural Rights in
Practice, eds. Y. Ghai and J. Cottrell (2004).
3 45508/99; 5 October 2004.
4 Labour Party, Bringing Rights Home (1996).
5 id.
6 Lord Irvine of Lairg LC, 582 H.L. Debs., at cols. 1228, 1234 (3 Nov 1997).
ßCardiff University Law School 2005

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