‘Positive obligations’ ensure that the state has a responsibility to protect us from harm. MPs remove these protections at their peril, Lily Lewis writes
Yesterday, the Government finally unveiled the long-promised Bill of Rights Bill.
There are many parts of the Bill, dubbed the ‘Rights Removal Bill‘ which will diminish the effective protection of human rights in the UK.
Of particular concern is the Government’s aim to ‘limit the imposition of positive obligations’ to protect people’s rights. This includes protecting the right to life under Article 2 of the European Convention on Human Rights
What are positive obligations?
‘Positive obligations’ might sound like legalese but what it means is relatively simple; that public bodies must have systems in place to prevent foreseeable risks to life, and where there is a real and immediate risk to life, they have a duty to take reasonable steps to avoid that risk.
In reality, this could mean obligations on care home staff to call for an ambulance when they see a resident struggling to breathe, on employers to ensure defibrillators are within reach in workplaces, or on school staff to intervene when they see a child who could be the victim of serious abuse.
The Government would lead us to believe that these obligations impose expensive and needless limitations on public authorities, but that is far from reality.
Life-saving reforms to public services have come about because of these legal duties, often as a result of the efforts of bereaved families going through the inquest process.
How has Article 2 changed investigations into deaths?
If a family lose a loved one in circumstances where a public body, like the police, knew their loved one was at risk of death and yet failed to take reasonable steps to protect them from that risk, positive obligations mean that there has to be an independent, official investigation into what happened.
This usually takes the form of an inquest. The investigative duty under Article 2 transformed this process, allowing for a full and fearless investigation into the circumstances of a death, giving families a chance to better understand why their loved ones died.
The old provisions facilitated catastrophic injustices and investigative failures, such as the original Hillsborough inquest, which took a very narrow view of the causes of the disaster. The High Court ruled in 2012 that Article 2 required that the first inquest verdicts be quashed and ordered that fresh inquests take place. The second inquest, which was Article 2 compliant, investigated the broad causative circumstances of the disaster and gave the Hillsborough families the opportunity to properly participate in the inquest process.
As a result of Article 2, Coroners can make conclusions and issue prevention of future deaths reports which can help bring about changes in laws, policy and practice to prevent tragedies happening again.
Tangible changes that have been introduced as a result of the investigative process include alert systems to flag when vulnerable psychiatric patients come into contact with the police and improvements to out of hours crisis lines. The Manchester Arena Inquiry report has highlighted the need for a radical rethink of public safety at large entertainment venues.
Under the Human Rights Act and Article 3 of the Convention there are also positive obligations for the police to conduct effective investigations into allegations of sexual abuse, following on from the John Worboys case.
What does the Bill do?
Despite this, the Bill of seeks to drastically limit the enforceability of positive obligations on public authorities. Clause 5, if enacted, will prevent the courts from giving effect to new positive obligations under Article 2.
It also restricts the application of existing obligations, telling the courts to avoid requiring a public authority to comply with a positive obligation in a number of broadly defined and widely-applicable circumstances.
The provisions are clearly aimed at preventing and discouraging legal enforcement of positive obligations, despite the historic importance of the law as a mechanism by which to drive life-saving improvements to public services.
Why does this matter?
We are all protected by the systems that are in place because of the Article 2 right to life as codified by the Convention and enforced by the courts.
MPs should think very carefully before supporting any measure which would take these fundamental protections away from the general public. Many of their constituents may have relied on positive obligations under Article 2 to participate in the inquest process, and all enjoy protections because of the positive obligations on the state to protect their right to life.
Instead of wasting money and time on these unnecessary and damaging proposals, the Government should focus on protecting the public from the risk of harm, learning from preventable deaths where they tragically happen and giving bereaved families the means to pursue truth and accountability.
The first duty of any Government is to protect and safeguard the lives of its citizens. The legal framework under Article 2 is a key part of that duty. The Government lets us all down by diminishing it.
For more information about the importance of positive obligations under Article 2, see the response of INQUEST to the Human Rights Act Consultation (here)