Some short comings of the Human Rights Act 1998
The legal debate this month has been between the right to privacy and freedom of expression which appear to be in conflict within the judiciary in the last year. Judges of a sudden are granting super-injuctions which mean that nothing can be reported in the press and media streams guaranteeing a right of privacy as enshrined in the Human Rights Act 1998. The super-injunctions have been used by the rich, they are allegedly expensive to obtain, and are being used to cover up extra-marital activities by those who are already in the public domain and don't want press intrusion.
But it seems to me that there is a complete misunderstanding of the role and function of the judiciary. Litigation is the "public" application of the rule of law. Arbitration is the "private" application of the rule of law. Therefore, the Human Rights Act 1998 should balance the right to privacy over the right to freedom of expression, only if a case is brought as an arbitration. Simple. Litigation should fundamentally fall down on the right to freedom of expression because the judiciary are "public", not private.
However, there is a very serious problem with the Human Rights Act 1998 which has yet to be aired and that is article 6 the right to a fair hearing. Only a judge can deprive you of a right to a fair hearing and when that occurs it is either that a miscarriage of justice has occurred (which requires a judge to act inadvertently or there is a lack of evidence) OR the judge acts deliberately which is corruption. That is to say that it should be very very rare for a miscarriage of justice to occur. Where a judge deliberately abuses his / her power and an article 6 hearing occurs on appeal then the judge should be prosecuted for perverting the course of justice, which is a serious criminal offence and/or misconduct in public office. That is to say only if a judge acts inadvertently or there is a lack of evidence should an article 6 appeal be necessary. Judges should not be above the rule of law.
Another very serious human rights abuse is in mental health law. All that is needed to place someone into a mental health hospital is a justice of the peace signing a document called a warrant under the Mental Health Act as requested by a psychiatrist and mental health officer (social worker). A person loses all of their rights and must APPEAL the justice of the peace's warrant after 28 days where they can be treated with god knows what medication against their will in the interim period. The current system prima facia removes a persons human rights altogether for at least 28 days when it should be necessary for the person to be present and put arguments if they wish when the warrant is issued to send someone to a mental health hospital for treatment. No one should be treated without first having their fundamental human rights asserted in law and a right to a fair hearing should start at day 1 minute 1, not 28 days later. At 28 days an APPEAL is possible, however, there are abuses of the system whereby an appeal is not done when requested at 28 days but a "Compulsory Treatment Order" is sought for a further 6 months and an APPEAL of the CTO is done, thereby abusing a persons human rights to a fair hearing under article 6. That is to say an appeal does not occur of the 28 day detention but the 6 month detention - it should be necessary that article 6 hearings cover both periods of detention - but the system is currently lax at 28 day appeals. Mental Health law is not currently complaint with Human Rights legislation and is open to abuse.
These are some blue sky thinking for reform of the human rights act 1998 which may mean the European Court of Human Rights having less of an impact on British justice.
But it seems to me that there is a complete misunderstanding of the role and function of the judiciary. Litigation is the "public" application of the rule of law. Arbitration is the "private" application of the rule of law. Therefore, the Human Rights Act 1998 should balance the right to privacy over the right to freedom of expression, only if a case is brought as an arbitration. Simple. Litigation should fundamentally fall down on the right to freedom of expression because the judiciary are "public", not private.
However, there is a very serious problem with the Human Rights Act 1998 which has yet to be aired and that is article 6 the right to a fair hearing. Only a judge can deprive you of a right to a fair hearing and when that occurs it is either that a miscarriage of justice has occurred (which requires a judge to act inadvertently or there is a lack of evidence) OR the judge acts deliberately which is corruption. That is to say that it should be very very rare for a miscarriage of justice to occur. Where a judge deliberately abuses his / her power and an article 6 hearing occurs on appeal then the judge should be prosecuted for perverting the course of justice, which is a serious criminal offence and/or misconduct in public office. That is to say only if a judge acts inadvertently or there is a lack of evidence should an article 6 appeal be necessary. Judges should not be above the rule of law.
Another very serious human rights abuse is in mental health law. All that is needed to place someone into a mental health hospital is a justice of the peace signing a document called a warrant under the Mental Health Act as requested by a psychiatrist and mental health officer (social worker). A person loses all of their rights and must APPEAL the justice of the peace's warrant after 28 days where they can be treated with god knows what medication against their will in the interim period. The current system prima facia removes a persons human rights altogether for at least 28 days when it should be necessary for the person to be present and put arguments if they wish when the warrant is issued to send someone to a mental health hospital for treatment. No one should be treated without first having their fundamental human rights asserted in law and a right to a fair hearing should start at day 1 minute 1, not 28 days later. At 28 days an APPEAL is possible, however, there are abuses of the system whereby an appeal is not done when requested at 28 days but a "Compulsory Treatment Order" is sought for a further 6 months and an APPEAL of the CTO is done, thereby abusing a persons human rights to a fair hearing under article 6. That is to say an appeal does not occur of the 28 day detention but the 6 month detention - it should be necessary that article 6 hearings cover both periods of detention - but the system is currently lax at 28 day appeals. Mental Health law is not currently complaint with Human Rights legislation and is open to abuse.
These are some blue sky thinking for reform of the human rights act 1998 which may mean the European Court of Human Rights having less of an impact on British justice.
posted by Lesley McDade at 11:04 pm
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