Law Blogs #4 – 14 November 2011

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  • The post on Sumption hosted by the Supreme Court blog was crossposted from the Guardian Law site, for which it was commissioned and in which it was first published.

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  • We can still disagree, David, I'm glad to see, even if we're not together on Without Prejudice! I hope you'll be able to join us as a guest soon at least.
    No, I don't mean human rights law has no scope. I'm a supporter of the ECHR, the ECtHR and the Human Rights Act, which I think it one of the many positive achievements of the government that brought it in. I think anyone who is properly speaking detained should be protected by article 5.
    But I do think there's something wrong with first deciding as a general moral principle that "human rights law ought to apply to the most vulnerable", and then, in order to achieve that result, treating one or more people's intense, serious care for another as though it were detention. I think that's what people are doing when they decide on well-meaning instinct that article 5 applies in P's case (referred to in my blogpost) - and incidentally in YL v Birmingham in the House of Lords back in I think it was 2007, a case about care homes. My position is essentially the same as the majority of their Lordships in that case.
    I think what makes people see detention in P's and YL's case where they otherwise would not (Munby LJ in his judgment in P gives examples of similarly intense care given privately by parents and spouses) is purely and simply the fact that the state is involved. As so often, I think the disagreement between you and me reflects our different attitudes to the state.
    If anyone suspects I'm unsympathetic to P, or don't care about the service offered to him, at least that gives me the chance to challenge them to think about the quality of social care in this country, and about the specific regulatory, policy and management measures - and funding decisions - required to actually make a difference in the lives of those who need it.
    I know I annoy many lawyers when I say things like this, but if the coalition did by some political miracle find a few billion it could resist cutting, I think social care should be prioritised over legal aid, for instance.
    So I challenge any lawyer who thinks my view on the scope of human rights law in P's case harsh or uncaring to explain why legal aid spending should be prioritised (if and when public spending can be protected or increased) over social care.

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