Human Rights Act and Judicial Review
For years, our laws and legal processes have made sure ordinary people can hold the powerful to account when they get it wrong. But plans are underway to limit and weaken these essential pillars of our democracy.
In the UK, our laws and legal processes help people stand up to power and challenge governments and public authorities when they get it wrong.
Legal processes like ‘judicial review’, are crucial to making sure power is kept in check because it gives ordinary people the ability to challenge governments and public bodies in court if they get it wrong and don’t uphold their duties.
For instance, it’s thanks to judicial review that the Ministry of Defence now owes soldiers a duty of care no matter where in the world they are stationed, all couples can enter civil partnerships, and has helped some disabled people defend their rights during the pandemic.
Human Rights Act
And laws like the Human Rights Act mean every one of us can seek justice in British courts if our rights are breached.
Human rights are about values we all hold dear, and it’s the Human Rights Act that brings them to life.
No one above the law
But the Government is trying to weaken these important mechanisms.
It has announced a “review” of our Human Rights Act and is also looking at how the judicial review process works with a view to limiting access.
This may sound innocuous enough, but the Government plans could see them place themselves above the law.
This is part of a much more profound change on how governments – both now and in the future – are held to account which will ultimately restrict our ability to stand up to power.
WHY SHOULD WE BE CONCERNED?
Being able to challenge governments and other public bodies is at the heart of our democracy. Restricting access to justice would effectively let the powerful dodge accountability, undermining fairness and the rule of law.
For 20 years, the Human Rights Act has been used by everyone, from soldiers, to disabled people and journalists.
It has protected our right to protest and pray, to think what we like and say what we think, and to keep our private lives private.
It protects all of us, all the time. But if we are unable to enforce our rights, they will become meaningless.
If we are unable to enforce our rights, they will become meaningless.
Without judicial review, my bright and sporty daughter would have dropped out of school and would not now be in her final year of university. Emma has a serious medical condition called narcolepsy, which made it hard for her to study or socialise. The usual treatments didn’t work, but NHS England wouldn’t let her have an alternate drug recommended by doctor. Emma became depressed and isolated from her friends. As a last resort, we went to court, where the judge ruled Emma should have the alternative treatment. Emma’s narcolepsy is now well-controlled, and she has been able to get on with her life.
I used the law to get my medals back, when I was kicked out of the Navy after 18 years because of my sexuality. I knew the way I was treated after serving my country for so many years couldn’t be right, so I started legal action against the Ministry of Defence under the Human Rights Act. The MoD agreed they were wrong, gave me back my medals – and have now introduced a policy to make sure LGBT veterans are treated fairly
My six-year-old son, Ian, loves his school and has lots of friends – but without judicial review, he might not be getting any schooling at all.
Ian has autism. As his mum, I knew he’d need extra help to make the transition from nursery to school – but the school didn’t have the resources to meet his needs.
Ian couldn’t cope with the demands of the classroom without support. He found school overwhelming and his autistic behaviours escalated.
The head teacher restricted him to only attending for an hour a day.
With Ian’s whole education at risk, I began legal proceedings. After that, Ian was given the extra support he needs from the Education Authority and is now happy and settled at school.
My elderly mother-in-law, Eliza, needed judicial review after the council wrongly refused to pay for the costs of her care.
When she was in her late 80s, Eliza sold her house and went into a care home. For four years, she used the proceeds to fund her care, but eventually her money ran out. Selling her family home had been a big step for Eliza and she had been careful to think it all through. Taking into account government proposals to put a cap on care cost, Eliza worked out she would be able to give her granddaughters money for a deposit on a house. Now, her careful planning and desire to help her family was being used against her. The council accused Eliza of giving away the money just to get out of paying for her own care.
My wife tried everything to change the council’s mind. She went to the ombudsman twice and repeatedly explained what the true situation was. None of it worked. It was only after starting legal action that the local authority admitted it was wrong and agreed Eliza was entitled to have her care paid for.
We took legal action as a last resort when my learning-disabled teenage daughter Lauryn was left without schooling or support during lockdown.
Lauryn has autism and severe learning difficulties; she needs routine and structure to keep her contented and calm. When lockdown happened, her school closed and all her other activities and support instantly stopped. Lauryn couldn’t cope being stuck home all day, and became uncontrollable. To keep her safe, we had to agree for Lauryn to heavily medicated. I was heart-broken. The education authorities wouldn’t listen, so we started legal action, reminding them they have a duty to act in children’s best interests. Lauryn is now back at school and our challenge in accessing respite goes on.
It will be a long time before she fully recovers from all the disruption she faced, but without judicial review my daughter could never have started to return to the kind of routine that she needs.
In August 2019, armed police officers burst into my home and that of my colleague, fellow journalist Barry McCaffrey, and arrested us both in front of our families and neighbours.
Dozens of police officers searched our homes and offices, following a documentary we had produced about the unsolved sectarian murder of six men in 1994. The police wrongly claimed that leaked confidential information revealed in the film had breached the Official Secrets Act.
We used judicial review to challenge the police action and the court ruled that the searches were unlawful. JR helped us defend the right of journalists to protect sources and publish information in the public interest. The Police Service Northern Ireland later gave us an unreserved apology and paid substantial damages.
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