So, what’s the plan to save human rights?

A few years ago I was interviewing a care worker for my PhD.  He told me that he’d worked in care services for over twenty years, but had taken a break of about five years during the late ’90s, returning to work in care in the mid 2000’s.  He said that things had changed dramatically during that intervening period.  I asked him about the nature of that change.  He told me that when he’d started working in care, people with intellectual disabilities were treated by the staff as if they were children.  If they were ‘naughty’, staff would even do things like spank them.  The atmosphere in the services he’d worked in had been tense, there was an ‘us and them’ atmosphere between staff and service users, with frequent fights and arguments.  When he came back, he said, the landscape of care had transformed.  Staff were viewed as there to support people, not tell them what to do.  The ‘us and them’ atmosphere was replaced by a spirit of collaboration and friendship.  There were fewer arguments, less use of restraint, and the staff were all much happier in their work.  I asked: what do you think led to that change? Human rights, he answered, human rights and equality.  We started seeing service users as people, just like us.

I appreciate that this story is a one off anecdote.  No doubt we can all think of care services that still don’t espouse this ethos, and some that may have done long before human rights entered the public discourse of care.  We could probably point to many things that may have triggered changes in attitudes towards care service users during the late ’90s and early 2000s – Valuing People clearly played an important role for people with learning disabilities (although, that too was framed in the language of rights).  And, as socio-legal scholars will tell you, there are few guarantees that the law on paper will translate into practice.  But for this care worker, there was something about the symbolism of the introduction of human rights and equality legislation into his workplace that helped to foster a radically different attitude from care workers towards service users.  An attitude that recognise their common humanity, and led to concrete benefits and enhanced working relationships.

Human rights are imperfect, I know, but they hold tremendous symbolic value and for some people they represent a vital lifeline to challenge acts or decisions with potentially devastating consequences to their lives.  Until last week, the possibility of the wholesale repeal of the Human Rights Act 1998 seemed like an academic possibility; today it seems almost a certainty.  One of the difficulties is that we don’t know precisely what the Conservatives plan to replace the Act with, except that it may be named a ‘British Bill of Rights’ or somesuch.  Adam Wagner has written a great blog post about the possible changes and you can download their pre-election proposals here.

The HRA is a very carefully crafted legal instrument, and no doubt when we see more detailed proposals for its replacement legal experts will be carefully contrasting their provisions.  My concern is that the current media ‘war on rights’ runs the risk of dangerously damaging the symbolic importance of rights, so that they lack credibility and cultural value in everyday settings outside of the courts.  I am concerned that the Conservative Party document is informed by ‘originalism’, of hearkening back to the values of the 1950’s that informed the European Convention – do we really want to turn the clock back over sixty years?  Without wishing to undermine the achievements that the European Convention represented at the time, you only have to read the notes of the negotiations to see that things have moved on since then.  For example, we can see delegates endorsing Scandinavian racial purity laws, or making sure prohibitions on torture, inhuman and degrading treatment did not prohibit corporal punishment, which was in use in the UK at that time.  These are not values that we share today, and would want to distance ourselves from – human rights have moved on from the original drafters of the Convention, and that is a good thing.

Another nagging fear of mine is that the Conservative government will use this opportunity to restrict the human rights obligations of ‘hybrid’ public authorities.  Hybrid public authorities are defined by the HRA as ‘any person certain of whose functions are functions of a public nature’.  In social care, these are extremely important, as since the 1990’s the vast majority of social care arranged by local authorities is outsourced to the private and independent sector.  There has been a long and tedious struggle, which I won’t recount here, to have private care providers recognised as ‘public authorities’ that are prohibited from acting incompatibly with the human rights of care service users.  This was finally resolved by the Care Act 2014.  During the passage of the Care Act 2014, the Coalition government – including the Liberal Democrat Minister for Social Care Norman Lamb – opposed this provision, essentially arguing that care service users did not need the protection of the HRA.  It was only thanks to campaigners (and I suspect lobbying by Liberal Democrat back benchers such as Paul Burstow) that this provision was reinstated.  The level of ignorance shown by Parliamentarians about the limited protections offered by the existing law was worrying, but what was more striking was the determination of the government to protect the interests of the private sector over care service users.  I am very worried that this issue will resurface, and this time without even the tempering influence of Coalition partners who do see the value of human rights.

If my email inbox, Twitter feed and conversations with colleagues are anything to go by a lot of people are very worried.  There is a feeling of helplessness – of whether there is anything at all that we can do to stop this juggernaut.  Exhausted, perhaps, from five years of playing whack-a-mole with ill considered and damaging policies, only for the moles to come back bigger, and more dangerous and better armed.

What can we do?  How can we organise?  Adam Wagner is doing some fantastic work over at Rights Info to enhance the public profile of human rights.  But what can the rest of us do to help?  What role is there for Law Schools in defending the reputation of human rights, helping to convey their importance to the public, and engaging with proposals for reform?  We academics are, after all, supposed to be adept at public engagement, so what are the best ways to engage the public on these issues?  How can we organise and work together?  Are any Law Schools already setting up networks or meetings or events to discuss this?  Answers on a postcard…


7 thoughts on “So, what’s the plan to save human rights?

  1. Hi Lucy
    This debate brought up by the government seems to concentraste on so many strands about immigratioon and prisioner’s rights but they haven’t thought through how the really vulnerable people with diabilities will be able to engage lawyers and others to argue their situation,.
    It is extremely important that cases of severe deprivation of rights eg HL v UK have proper speedy and ‘ordinary person’s’ access to the system, which is difficult enough now.
    If we have an issue about the one size fits all cases that cause people so much difficulty than we need to change criteria not abolish an Act that can protect the really vulnerable who are not able to advance their case themselves

    Care Act andd other government directives and laws require professionals and others to consider wellbeing so how can that fit with a proposed cancelling of the Human Rights Act.

    The propose revision of DOLs may wel include a biger slant on Article 8 so again how is that going to work??


    • Thanks Graham, I agree that the media tend to focus on immigration and prisoners and ignore the impact of human rights on other populations. It’s also worth flagging up that many prisoners (and immigrants) are themselves very vulnerable and many have disabilities – and have relied upon the HRA and the ECHR to protect their rights. I agree that if particular cases or situations are causing problems, we need to be clear about what those are and address them directly, rather than throwing the baby out with the bathwater.

      And who knows what this means for the future of DoLS…

  2. What with recent developments such the Cheshire West judgement, the renewed focus on the implementation of the MCA 2005, s.73 of the Care Act 2014 and the CQC properly embedding human rights principles into its new regulatory approach (including a determined focus on promotng mental capacity, consentand deprivations of liberty), it feels that just when the adult social care sector might be getting to grips with what human rights means in practical terms for its services, the new government is threatening to take away the legislative and symbolic structures that slowly helped us get this far in the first place…

  3. Hi Lucy, thanks for this excellent post and questions. Obviously there are still so many unknowns but I think it’s important that academics come together to effectively communicate and disseminate informed research and commentary. I like Adam Wagner’s call for a positive approach and think that’s a good place to start. In terms of how academics can have the most useful impact, I’m not clear. Julie Doughty and I are talking about bringing media/comms/information researchers together to discuss possible responses and I’d love to hear of any other initiatives that I might join/support. I think it’s probably sensible to have focused initiatives within topics/fields (such as contributing to policy discussions), as well as larger projects that involve a range of players.

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