GN Law - Our People News and TV

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.

Related Articles

Rhea Taylor-Broughton looks at the immense contributions toward access to justice by members of our African and Caribbean communities.
Our People - GN
Rhea Taylor-Broughton explores the law surrounding the extension of limitation periods in human rights claims involving those who lack capacity to conduct legal proceedings.
Our People - GN
Hazel Metcalfe looks at the recent Worboys case.
Our People - GN
The case of MH v UK was decided in the European Court of Human Rights on 22 October 2013. The case concerned a woman (MH) with Down’s Syndrome. In 2003 MH was detained under s.2 of the Mental Health Act 1983, which authorised her detention in hospital for assessment for up to 28 days. Her mother was her nearest relative for the...
Our People - Maria Nicholas
If someone is deprived of their liberty and this is authorised by the Court of Protection, is up to the care home or hospital in question to determine how, or if, to regulate any restrictions on that person. It will be surprising to most that currently there is no legislation or statutory guidance which sets out how mentally incapacitated people...
Our People - Maria Nicholas

Send a message

We will only use the information you enter in this form to contact you about your enquiry and will not share it with anyone else. Please read our Privacy Notice.

Please note that we are not accepting any new housing work at this time.