From the bizarre to the ridiculous
Yes, we know the phrase is technically “from the sublime to the ridiculous” but we simply couldn’t bring ourselves to use the word sublime in relation to Human Rights law in the way it is being applied in Europe. Readers of this blog will know that we tend to be critics and to highlight the absurd attempts to use the legislation and the fact that the European Court often thinks the attempted applications are meritorious !
In a case reported this week, the European Court of Human Rights (ECHR) decided that in criminal cases if a witness is not available to give oral evidence, either due to refusing or having passed away this is a breach of the accused’s human rights. This goes against UK law which is entirely sensible and provides that where there is a written statement and for whatever reason the witness is not at court for cross examination, appropriate directions and warnings are given to a jury as to the weight which can or should be given to that evidence.
The first instance decision in Europe will either be ratified or overturned by the upper tier of the ECHR this week, and if the decision is ratified, it would on the face of it impose a major change on the English Legal System. If the European ruling is ignored by Judges in England & Wales, then yes, you guessed it, it will lead undoubtedly to a raft of new Human Rights challenges in the UK.
Judging (excuse the pun) by recent comments made by a number of the most senior judiciary in this country, they are becoming sick and tired of the impositions from Strasbourg so it won’t be a surprise if this ends up in a scrap between the UK and Europe. Sound familiar ?!
Human Rights – a judge’s view
Interesting times we are living in generally – on a macro level, will Britain start a slow or quick process of decoupling from the EU or will we perhaps be drawn in further to an ever more centralized Europe ?
On the micro, although not so micro, level, back to the ever thorny issue of Human rights law, which of course has it’s origins in European law.
Judges are masters of using measured words but clearly the Judiciary in the UK are also somewhat troubled by the way Human Rights law is causing such controversy, costing so much money and being argued in such a wide range of cases. In some of the more controversial cases, foreign criminals who commit serious offences are not being deported due to arguments based on article 8 of the Human Rights legislation.
Lord Phillips and Lord Judge spoke for some 90 minutes to a parliamentary committee this week and concurred that the English courts had perhaps, based on respect for the common law system on which English law is founded, been willing to give too much credence to European Human Rights precedents.
Lord Judge also spoke about the prospects of the government seeking to make changes to Human Rights law, perhaps arguing strongly that no country can continue, in the economic conditions of the foreseeable future, to continue dealing with the volume of these cases, as the ECHR apparently has a backlog of over 100,000 uncompleted cases.
More of “Human Rights gone mad”
A convicted fraudster from Nigeria who entered the UK illegally initially (and was allowed to stay indefinitely due to an amnesty) is appealing a deportation order against him because he has a son in this country. He claims that deporting him breaches his and his son’s right to a family life even though he has been in prison for much of his son’s life and the son goes to school 12 miles away.
This is yet another example of liberal politics gone mad, let alone the cost to the taxpayer of these cases which just keep coming.
We obviously understand the needs of the child but a commonsense approach to this issue must surely lead to the conclusion that this person is “taking the piss” for want of a better expression.
We will shortly be running a poll on these sorts of cases, so please check back as we will start collecting data on what the British public really think about these issues. Without prejudging, we have an inkling of what most of you might say !
Evicted gipsies launch human rights claim
We have reported on this site before regarding the ever more creative uses of article 8, but here is another example of the law gone mad, the costs being borne by the taxpayer and the stance taken by Strasbourg.
It is not uncommon for legal disputes to arise in terms of evicting gypsies from private property or public property, it is a perennial problem. What is however quite unusual is where gypsies are evicted from land owned by gypsy associations, and this is the scenario in this case.
The Buckland family of travellers had been evicted some 5 years ago, and having exhausted all possible appeals under general English law, they are now pursuing, at public expense, there human rights claim in the European Courts, seeking to rely not only on article 8 generally but other cases in the European Courts which indicate a positive obligation to assist the gypsy way of life in Europe.
On the facts of the case it is claimed that the Buckland family intimated all the other travellers on the site (no easy task) and at least one of them threatened another gypsy with a gun.
The quicker something is done about these kind of absurd cases the better. What do you think ?
This article is perhaps the most controversial of all the Human Rights articles. There have been an ever increasing number of attempts to apply the principle of right to family life in court claims of all types, not least in immigration cases, and even immigration cases relating to hardened criminals
MP’s are now being encouraged to agree cross party support for a proposal to amend the UK Borders Act 2007 to remove references to Article 8 in that Act and consequently, make it harder for foreign criminals to delay and resist being deported unless they can demonstrate a “serious risk of torture”.
What makes the current law even more of a farce is the fact that “family life” has been so widely interpreted under the Human Rights Act, to include girlfriends and relationships which would otherwise not be seen as having longevity or permanence.
Common sense, long overdue in this area.
Human Rights & Social Housing
Just a quick note to advise that, in the growing and important new law area of how the Human Rights legislation may impact on social housing law, there is a fantastic new page with practical guidance on the Equality Rights Commission website. We simply wouldn’t be able to improve upon the content on that site, so simply click on the link for a very helpful and informative explanation from both Landlord & tenant perspective.
Smoking is a Human Right and an equality right ?!!!
In another quite extraordinary proposed application of Human Rights and equality laws, patients who have been detained under the Mental Health Act 1983 have succeeded in gaining leave to apply for judicial review against being banned from smoking by the hospital in which they are detained, which ban applies to the hospital grounds as well as of course the interior of the hospital.
Human Rights Act – the alleged cost
The figures are undoubtedly open to question but according to the expert, Dr Lee Rotherham :-
- Compensation claims under the Human Rights legislation cost £7.1billion a year
- £2.1billion is spent on compliance
- Legal fees arising from Human Rights Act cases are estimated at £250million a year
- The total cost to the Uk is some £42billion since 1953 but costs are accelerating rapidly
- There are now at least 2,000 human rights lawyers in the UK.
A full note of Dr Rotherham’s findings appears to be available under the auspices of the Taxpayers Alliance. Interesting reading indeed !
An interesting recent case
There have been a number of legal applications made claiming infringement of human rights relating to healthcare. Many relate to hugely difficult issues such as the right to refuse treatment, dignity relating to terminal illness and such like. The case described below centres on another important area, allocation of limited resources.
There are increasing issues in the western world generally regarding obesity and an increasing number of overweight people, many of whom have tried repeatedly to lose weight by dieting, but who are now seeking medical intervention such as gastric band treatments. So, how to determine who should be entitled to such treatment on the NHS and with what criteria ?
In this case, the complainant, who was seriously overweight but below the relevant Primary Care Trust’s threshold for treatment and therefore was refused such treatment, claimed that his human rights had been breached because the PCT had a policy of excluding social factors in deciding whether there were exceptional circumstances such that a person outside of the physical criteria should get the treatment.
The application was rejected, primarily because in this extremely difficult area of legal rights generally and human rights in particular, the courts have sidestepped the issue under article 8 by stating it shouldn’t apply to medical resources on the basis that article 8 places no positive obligations to provide treatment. Consequently, whist human rights are often invoked in relation to medical issues under article 2, such as the right to life, the courts have been very slow to reduce the amount of discretion generally available to health authorities in the very difficult area of allocating finite resources.
Child maintenance update
An increasing number of fathers are going to prison due to missing child maintenance payments. This is a political and practical hot potato – on the one hand, if no action is taken, this send out a message that it is acceptable not to financially support children. On the other hand, if a father is in prison, this removes his ability to pay and possibly in the future and deprives the children of contact with their father.
The figures suggest that the number of fathers imprisoned has tripled over 3 years to the current number of more than 50. In the period from April 2007 to March 2008, 25 people were imprisoned for missed payments and 480 had suspended sentences. The increase is demonstrated by the fact that from April to October 2010 35 parents went to prison and 635 were given suspended sentences: the final tally is expected to be at least 50 and 900 respectively. Apparently, average sentences for debts are 48 days.
There remains a huge underlying problem with collection of payments by the CSA. Since 1993 it has fallen short by a huge £3.8bn in the amount of money it should have collected and the system remains very hit and miss, as evidenced by the fact that the CSA sought to send to prison one father who owes £700 but many are not pursued adequately or at all despite owing thousands.
The CSA stated that “It is highly unusual for anyone to be sent to prison .. magistrates must be satisfied that a parent has wilfully refused or culpably neglected to meet their financial responsibilities.”