November 30 2023

Living in a human rights desert

Living in a human rights desert

Desert road, Flickr, Creative Comms licence, moominsean

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Desert road, Flickr, Creative Comms licence, moominsean

Desert road, Flickr, Creative Comms licence, moominsean

I was recently described during an argument as, ‘one of those University types.’ Peter Hitchens once audibly growled at me when we sat on a panel together debating about the death penalty. And, was recently described as a ‘human rights barrister’ by the Guardian.

In all those circumstances it will come as no surprise that I fall solidly into the ‘pro human rights camp.’ In fact, I am an extremist. I am an extremist in that I cannot fathom how any properly informed person could be against human rights.

But being an evangelist for human rights will not save them in 2015. What will save human rights is convincing the majority of households that in the cupboard, under their stairs, beyond the fusebox and the old scrabble set is a shield. And it’s a solid shield that they can hold up whenever they need it, to protect against unlawful treatment by the government; the local council; the police, whomever.

At the moment, human rights aren’t a shield at all. Instead, they are a card dealt to some people and not others.

And human rights are such an easy target for right wing ridicule because of the people who can protect their rights and who can’t. The obvious example is prisoners. Prisoners’ human rights claims cause such outrage, not because people believe that prisoners should go to prison to be mistreated, but, because people with problems outside of prison cannot access resources to solve them.

Prisoners can access legal aid, specialist lawyers and the courts without paying fees. That access is by no means universal, nor is it what it should be, but at least it is something.

Comparatively, there are urban and rural communities who live in a rights vacuum. Their rights exist but are unenforceable for want of specialist lawyers. In a prison, lawyers who profess a speciality advertise in the prison newspapers, the prisoners themselves can ask for peer recommendations and every prisoner can pick up the phone to the Prisoners’ Advice Service.

And so to prove a point, I have taken three relatively small English counties: North Somerset; Herefordshire and Torbay. In each I have searched for solicitors who deal with relatively common ‘human rights problems’: (i) police harassment; (ii) disability discrimination; (iii) forced marriage.

In North Somerset it is easy to find criminal law firms and those who do some motoring work. But I couldn’t find anybody who would sue the police. Ironically, one of the firms that appeared highest in the search were a firm favourite of the Police Federation. Cover for disability discrimination work was much better, but, it was limited to the employment context for the most part. Forced marriage was a little easier, although the only firm really advertising are a commercial firm based in Bristol.

As for Herefordshire, the partner at a well-known national firm says on his blog that he has represented a number of claimants in actions against the police from the area. One large regional firm said they would advise on disability discrimination as part of their employment service. Again, a commercial firm offered representation in forced marriage cases although some distance away.

In Torbay I found a firm that did criminal work and offered prison law, but no actions against the police. Although one of the bigger firms in the South West advertised a disability discrimination practice, the website linked through to Exeter and then no solicitors professed to practice in the area. One thing I did find when I looked was a Torbay welfare rights advisor asking for help in this regard on a website – a theme I shall return to later. As for forced marriage, that was difficult, although I did find a barrister in nearby Exeter who was direct access and had applicable experience.

Of course this is not a scientific experiment in any respect. But it does illustrate my point. Rural communities and smaller towns are unlikely to have access to lawyers with substantial public law experience focussed on human rights protection and enforcement.

And, I accept that is, to an extent, a supply and demand issue. There are not as many article 2 inquests each year as there are Magistrates’ Court trials. There is more conveyancing work compared to human trafficking. But, that cannot be an excuse for denying people access to those public law lawyers as required.

Part of it now, unfortunately, is legal aid. Swingeing cuts and the uncertainty of the landscape of judicial review do not make it an attractive area for regional or high street firms to begin to explore. And save supporting the regional High Court centres, the Public Law Bar has not taken steps to make itself more accessible.

The result is that the haves can enforce their rights nationally if persuaded to visit their lawyers and to make payment. The have-nots cannot enforce their rights unless they live in area where they can access a legally aided lawyer with the necessary expertise.

And, the reality is, if you fall into the have-not category, unless you live in or affordably commutable to London, Bristol, Birmingham, Manchester, Sheffield or Leeds then you have little chance of accessing specialist advice.

But that could change. I appreciate for small firms of solicitors it may be a burden too much to train up a member of staff. However, nationally there are networks of ‘rights advisors’ – most of whom work for the Citizen’s Advice Bureau and allied charities. All of whom have paid advisors and volunteers who often advise about welfare benefits, housing and employment rights. As part of their training they already have a basic grasp of natural justice and highly technical knowledge of specific areas of law. There is no reason why these advisors cannot be given the tools to at least identify potential human rights challenges.

To empower these rights advisors to undertake a wider public law diagnostic function would make human rights more accessible nationwide. From diagnosis of an issue, then clients could be triaged to firms with public law contracts, to the Bar Pro Bono Unit or to direct access barristers.

Making rights, less, ‘Londoncentric’ is laudable. Removing physical and financial boundaries to accessing human rights practitioners is crucial for maintaining the rule of law. And by being able to show that everyone has access to lawyers the human rights argument will easily be won.