Public finances and personal freedoms

Public authorities must respect human rights irrespective of the state of their balance sheets, writes John Wooding
John Wooding
26 January 2010

While human rights advocates have called for a “full-spectrum” doctrine of fundamental freedoms encompassing economic and social liberties, pressure on public finances is beginning to threaten more basic civil and political rights already enshrined in law. As public authorities endeavour to reduce their expenditure, the principle that “human rights must not become a political football” is more frequently put to the test.

Decisions by government bodies to “cut” human rights are not always easy to identify because there is no “human rights budget” per se. Advocates of human rights should look out for new policies that clearly affect fundamental rights and freedoms, which are explained by public authorities purely in terms of “cost savings” or “administrative efficiencies”. Choosing to use the financial idiom presupposes that human rights can be evaluated in monetary terms, an assumption which is both dangerous and wrong.

Human rights should fall outside the scope of any budgeting exercise. The freedoms in the Human Rights Act (“HRA”) are after all minimum standards for governments, not policy objectives for them to balance with other priorities. It costs governments less to observe human rights than to ignore them, in the long run, but that is not the point. As Geoffrey Bindman observed, it makes no sense to ask whether we can afford human rights; the question is predicated on what Gilbert Ryle called a “category error”.

Human rights regulate the way in which public authorities formulate policy. The HRA was intended principally to ensure that human rights principles permeate every aspect of decision-making in the public sector. Yet government bodies increasingly treat the protection of human rights more as a goal to be evaluated on a cost-benefit basis than as a guide to forming policy that is unaffected by financial considerations.

This tendency was particularly visible in a series of recent policy announcements relating to stop and search, virtual courts and legal aid.

Stop and search

In September 2009 the Home Office announced plans to cut paperwork by requiring police officers to ask fewer questions when they stop and search individuals. While some of the questions on the stop and search form may indeed have been unnecessary, there are also certain questions that would have been worth adding to make it easier for police authorities to monitor how the power is used.

Data is currently not collected in respect of religion, for example, which complicates the task of assessing whether the police stop a disproportionate number of Muslims. By focusing exclusively on improving administrative efficiency, the authorities missed an opportunity to address concerns over how the power of stop and search is scrutinised.

Virtual courts

In December 2009 the right of criminal defendants to refuse to have their first hearing in a video-linked “virtual court” was removed by the Ministry of Justice, after Parliament approved this step in the Coroners and Justice Act 2009 the previous month.

Serious consideration of virtual courts first began after the publication in 2008 of the Flanagan Report, which recommended them to reduce the administrative burden on the criminal justice system. A controversial pilot was introduced in May 2009 which enjoyed, at best, limited success. The Ministry of Justice states that the benefits of virtual courts include freeing up police time, reducing delays caused by “no shows”, and saving £10 million per year in respect of transport costs.

The new policy on virtual courts has been justified exclusively in financial and administrative terms, without any reference to its implications for human rights. But these may be substantial. When virtual courts were optional, only 263 defendants elected to use them, far short of the anticipated figure of 15,000. Opponents of virtual courts argue that they:

  • prevent magistrates from monitoring the manner in which detained defendants are treated (as JUSTICE has noted, being physically presented to a magistrate is a crucial safeguard for a number of human rights protected by the European Convention on Human Rights (ECHR), including the rights to life, protection from torture, liberty, and a fair trial);
  • prevent defence solicitors from taking full instructions, giving proper advice and deterring prisoner abuse by being physically present at the police station; and

Correspondingly, Article 14 of the International Covenant on Civil and Political Rights provides that the accused shall be tried in his presence, and the UN Secretary General’s Report on the establishment of the International Criminal Tribunal for the former Yugoslavia interprets this to mean physical presence. There should be at least a general presumption against the use of video-link facilities in pre-trial and sentencing hearings, and a presumption in the opposite direction will almost certainly breach the defendant’s human rights.

But this does not mean that the defendant must necessarily consent to the use of video-link facilities. In Marcello Viola v Italy, the European Court of Human Rights decided that conducting an appeal hearing remotely without the appellant’s consent did not breach his right to a fair trial, because the video-link was used in response to the special circumstances of the case and not as part of a “blanket” policy. The ECHR (and therefore the HRA) requires the police to consider the defendant’s particular circumstances when choosing whether to use a virtual court; but the defendant need not consent to what they decide.

So removing the option for defendants to refuse a video-link does not, by itself, constitute a breach of the HRA, as long as the authorities exercise their discretion responsibly. The real worry is the degree of emphasis placed by the Ministry of Justice on the savings to be generated by the new technology, because this implies that a potentially unlawful presumption in favour of using virtual courts is envisaged. The only justification for using video-link technology can be that it suits particular defendants in particular circumstances; whether virtual courts save money is irrelevant.

Provision of legal aid

Cuts to legal aid are arguably the most worrying instance in which financial constraints have been used by a government body to justify measures that curtail human rights. In December 2009, the Law Society said that it would seek a judicial review of a decision by the Ministry of Justice to reduce the amount of costs recoverable by defendants following their acquittal. Later that month, the Ministry of Justice announced plans to cut legal aid fees by £23 million in anticipation of what Lord Bach called “tough times ahead”.

Principle 3 of the United Nations’ Basic Principles on the Role of Lawyers states that governments are required to make available sufficient funding to provide legal counsel for the poor, and this is reflected in Article 6(3)(c) of the ECHR. Although the United Kingdom spends more per capita on legal aid than any other country, the decision to reduce funding for legal aid in the middle of a recession creates a serious risk of causing miscarriages of justice in circumstances where defendants are unable to afford legal advice. Even before the cuts were announced, more than a quarter of solicitors providing legal aid services told the National Audit Office that they did not expect to be able to afford to do so in five years’ time.

The wider implications of this loss cannot be expressed in financial terms. Even from a narrow budgeting perspective, any savings made from cutting legal aid would probably pale in comparison to the cost of appeals by prisoners who did not receive proper legal advice before being convicted.

Human rights are a policy guide, not a policy goal

Policies which protect civil liberties are already being curtailed due to pressure on public finances. With budgeting constraints certain to intensify in 2010, the HRA itself could be called into question on financial grounds. But the HRA’s implications cannot be evaluated in monetary terms; it is impossible to quantify the value of human rights in this way. Human rights are non-negotiable minimum standards for public bodies, not idealistic policy objectives that can be set aside when budgets tighten.

In his last lecture as Director of the LSE’s Centre for the Study of Human Rights, Conor Gearty described the notion of human rights as an “ex post facto rationalisation of a propensity to care that precedes [it].” One simply cannot put a price on a quality like this. While it is appropriate to debate how certain rights should be applied in particular circumstances, it is an affront to the very idea of human rights to assume that their observance depends on the availability of sufficient public funds to do so.

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