The 'Rights Removal Bill' - we Really do need to pay attention!

Working as part of the BIHR Rites Commitee and an advocate for both social work and social justice, one of our directors, Daisy, shares her views about the implications of letting these reforms pass unchecked. 
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BIHR have also published some excellent briefings, click on their images (on the right) to access further information and resources. 

​So Why Does It matter?

The reforms have followed a series of high-profile immigration cases where the administration had been frustrated in their attempts to enact a speedy resolution. Whilst providing options in these types of cases might be the focus and intent of the Bill, the ramifications that it has / will have for a wider range of groups in our society needs to be considered as part of the process.

Images (c) BIHR, 2022​

For many disadvantaged groups, including children, young people and those in need of care and support for a wide range of reasons, issues such as limited access to court review, removal of the public sector proactive duties and the lack of consideration of these rights and freedoms, is likely to have a significant negative impact.
 
The wording of the Articles in Schedule 1 of the Bill remains the same; however how they are applied, who by and against what threshold is set to change, and this has a number of wider consequences that will impact on those least able to stand up for their own rights within our communities and service systems. There are numerous areas of concern levelled at this Bill from many quarters, but the key areas of concern for health and social care / public service delivery include:

• S5 (2) Removal of positive obligations which will make our LA and NHS bodies less accountable to both citizens and the system of justice. We currently act to protect human rights breaches across the public sector, this includes providing redress, safeguards, protection or otherwise ensuring equal access to both social and criminal justice. If public bodies are no longer required to act in these circumstances, instead adopting a reactive duty, it is likely that a ‘he who shouts loudest’ (or who’s carers or parents shout loudest) management approach will be adopted across our pressurised public services, leaving those unable to speak up (or have someone to speak up for them) voiceless, including children and young people.

 

• S12 (5) Removal of interpretation of legislation for public authorities will mean that citizens have limited redress and opportunity to challenge determinations and decisions taken for/about them. There will be lesser requirements by these authorities to consider individual rights in their processes and procedures.

 
The government is currently in process of consulting or implementing four key legislation areas that the replacement of the Human Rights Act has the potential to fundamentally change, including –

• Mental Capacity (Amendment) Act 2019 – while changes to s4B of the Mental Capacity Act 2005 will have some impact on the public sector management of risk and safety, most notably in this primary legislation will be the introduction of the Liberty Protection Safeguards which will replace the current Deprivation of Liberty scheme as the ‘procedure prescribed by law’ to provide Article 5 safeguards. Since the 2014 Supreme Court judgement that set out the ‘Acid Test’ for determining a deprivation of liberty, many more individuals have had the safeguards and protections put in place that where previously absent.  The impact of this case was an exponential rise in requests for assessment and authorisations from both Local Authority and Court bodies, which gridlocked the system. It also had the impact of ensuring that those people whose views, wishes and situations controlled by others, have some right to recourse and redress that had not previously been available to them. Making the changes proposed in this bill will reverse this situation, allowing public bodies to make arbitrary decisions affecting people’s lives without the accountability that the current Act provides.

 

• Draft Mental Health Bill 2022: This bill was published June 2022 and sets out a range of amendments to the current Mental Health Act, including the primary statute to include deprivation of liberty as a condition of community compulsion, a position the Supreme Court declared was not possible without changes to the primary legislation. Whilst many of the additions to this bill include a greater level of choice, determination and representation, the limitations of these are embedded in our application of Human Rights, notably Articles 2, 3, 5, and 8. Without this infrastructure, which currently includes the positive duty and consideration of convention rights and protections for the individual, it is likely that risk and safety will become a driving force when, such as in the current climate, demand far exceeds the resources available.

 

• Care Act 2014 / Children & Families Act 2014: Changes in the resource allocation and management processes within adult and children’s social care (e.g. the cap on care costs, transitions and eligibility thresholds and the limitations (or otherwise) of resource determinations) will be impacted by the addition of preventing the courts from interpreting the Bill in a way that interferes with the authorities ability to perform it’s functions (s.5 (2)(a)), determine its allowance of finances and other resources (s.5 (2)(b)), or affect the operation of other legislation (s.5 (2)(e)), all of which have been the subject of debate in the caselaw under both this Act and in relation between it and the Mental Capacity Act.

 

• Equality & Inclusion: With specific reference to Trans rights, however this concern is also applicable in other equality areas, the legislation being brought forward to support what is known as the Conversion ban, whilst including sexuality is currently set to not include gender reassignment and as such in some areas such practices remain available, with significant harm being reported by those subjected to such practices. The thresholds of articles 3 and 8 are of particular concern across all the inclusion agendas, as currently these are one of a limited number of routes to challenge a wide range of equality and inclusion issues that would otherwise be subject to arbitrary or populist decision making.

 
The title coined by those lobbying against the current proposals of the ‘Removal of Rights’ bill is an accurate description for many of the most vulnerable in our communities. Whilst the detail of the Articles set out in Schedule 1 have not fundamentally changed, the detail of the Bill in which they are contained has wide-reaching impact in relation to the application of these rights across a variety of settings, including areas such as health and social care, minority rights and the boundaries in which our public bodies are required to take account of individuals rights and wishes. It also appears that this government has sought to minimise awareness of what the ‘Bill of Rights’ will mean in practice beyond the scope of immigration, courts, and criminal justice procedures. The scrutiny of this bill and its spirit will be an essential part of the legislative process and must be robust if we are to protect against the erosion of civil rights for groups who are unable to articulate or otherwise effectively represent their own interests, views, and rights.
 
Daisy Long,
01/09/2022