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Just one effect of repealing the Human Rights Act

Our People - Maria Nicholas
3 November, 2014

Most people will have heard of the Conservatives’ pledge to stop giving force to decisions made by the European Court of Human Rights (ECtHR), and to repeal the Human Rights Act 1998 (HRA). If this were to happen, it would affect people’s fundamental rights in many ways.

One of the most significant repercussions would be the loss of the right to liberty, currently enshrined in our law. It is this right to liberty, found in Article 5 of the European Convention on Human Rights (ECHR) and given effect to by our HRA 1998, which has contributed significantly to legislation such as the Mental Capacity Act 2005 (MCA), in particular the deprivation of liberty safeguards.

Public bodies are only permitted to deprive someone of their liberty in accordance with a procedure prescribed by law, and in certain limited cases such as following conviction for a crime or for persons of “unsound mind”. This means we have to have laws that are Article 5 compliant – there has to be a set procedure, which is fair and proportionate, and usually (in mental health cases at least) with a right of appeal or review.

The right to liberty is what stops a person with a mental illness from being detained in a hospital indefinitely (without a right of appeal or anyone reviewing their detention).

Some may say that we already have legislation to deal with these problems – the Mental Health Act 1983 (MHA), and the MCA – but they are by no means perfect. The ECtHR found less than a year ago that an aspect of the MHA 1983 violated the ECHR (MH v UK) ; the deprivation of liberty safeguards in the MCA are having to be comprehensively reviewed.

It is the ECtHR and our HRA 1998 which keeps pushing this country to better protect its citizens; without them we may plateau at mediocrity, or possibly take a huge step backwards in protecting the most vulnerable in our society.

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Head of Court of Protection
Maria Nicholas is a Solicitor and Director at GN Law, and the Head of the Court of Protection and Community Care Departments. Maria advises on issues of mental capacity, best interests, deprivation of liberty and all aspects of community care law.

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