There is evidence of a much wider use of the Human Rights Act than by unpopular minorities, writes Roger Smith


Do a word association test. With what groups do you associate human rights? The chances are that it will be terrorists, gypsies, asylum seekers or foreigners. A recently published report by the British Institute of Human Rights (BIHR) shows how human rights also help a much wider range of people who just have the bad fortune to run up against the blank face of bureaucracy.



The European Convention on Human Rights was drafted after the Second World War but before the vast expansion of the welfare state. Yet, there is much that can be used to assist the dignity of those encountering public authorities other than those representing the forces of law and order. Not only are human rights wider than is usually recognised, enforcement often does not need the courts. The BIHR report focuses on specific cases where care workers, parents or individuals obtained improvement – and where, to their credit, public authorities responded positively without court proceedings.



Take article 3, the right against torture or inhuman or degrading treatment. The courts are familiar with this article in some pretty dire situations. The House of Lords discussed its effect on evidence before a civil tribunal in a celebrated decision that drew a firm line against admission of statements that might have been adduced by torture (A v Secretary of State for the Home Department [2005] UKHL 71). It is the subject of a current intervention by the UK government (and, on the other side, Justice) in a case before the European Court of Human Rights (Ramzy v UK) on the issue of whether someone can be deported to a country where there is a substantial risk that they may be tortured (an attempt to overrule Chahal v UK (1996) 23 EHRR 473).



Far away from the law courts, the BIHR reports that parents of a young man in a residential care home obtained an investigation of unexplained bruising on their son’s body through citing the article. A social worker also used it to get her local authority to provide secure accommodation for a victim of domestic violence and her child on the basis of the need to protect family life.



Take article 5, the right to liberty – which places restrictions on imprisonment and is the basis of a number of court challenges to the government’s use of control orders (among them R v Secretary of State for the Home Department ex parte JJ and others [2006] EWCA Civ 1141). A visitor to a mental hospital used the article, together with the accompanying right of non-discrimination in article 14, successfully to challenge the hospital’s practice of proceeding through the sectioning process in relation to non-English-speaking asylum-seekers without providing interpreters.



Many of the BIHR examples relate to the right to privacy and family life covered by article 8. The European Court of Human Rights has recently protected the privacy of Princess Caroline of Monaco against intrusive paparazzi (Von Hannover v Germany), a decision that sends tremors down the spines of newspaper editors and probably accounts – at least in part – for the ferocious hostility to the Human Rights Act shown by publications such as The Sun and Daily Mail.



In much more humble situations, article 8 has proved useful in negotiations with local authorities which fail to be sufficiently sensitive to the individual needs of those for whose care they are responsible. Thus, a local authority accepted that a woman needed a special bed but argued it was only liable to pay for a single one: her husband could sleep elsewhere. It even refused to allow her to top up the cost of a double bed from her own money. In the end, it cracked under article 8 arguments from the Disability Law Centre. In the manner of a happy consumer, the woman was quoted as saying: ‘I would have no hesitation in using the [Human Rights Act] again.’



Another all too prevalent variant of this sort of case is the position of elderly and frail couples when only one partner is too ill to be cared for at home. Article 8 has provided a useful weapon in persuading a council to accept that the couple should not be kept apart. In one example, the local authority wanted to split up a couple that had actually lived together for 65 years. They relented in the face of article 8 arguments.



As the Human Rights Act is used more and more in relation to the kind of cases set out in BIHR’s report, so it may be that public opinion begins to turn. The Sun has led a campaign to repeal the Act and, in truth, it is yet to be popularly accepted.



This report shows how people and their advisers have enormous opportunities to use the Act to improve lives of people who are vulnerable to the power of officialdom.



Why, it might it even be useful for one of your clients or relatives.



l The BIHR’s report The Human Rights Act – Changing Lives can be read on, or downloaded from, its website: www.bihr.org.



Roger Smith is director of the law reform and human rights organisation Justice