Deputy Prime Minister Nick Clegg has this weekend published an article in the Guardian vowing not to allow any watering down of human rights legislation in this country. He makes the very valid point that the human rights act is most used in this country by those who are most vulnerable and often in the care of the state in either hospitals or children’s’ homes and prisons.
It is however difficult to see how this position sits with the coalition government’s policy to dramatically reduce the availability of legal aid to those who wish to enforce their rights both to challenge decisions of the state and to deal with issues within their own family.
For example, under the new legal aid rules it is easy to foresee a situation where a father wants to see his children but is prevented from doing so by their mother for no good reason, thus breaching both the rights of the father and the children to family life under article 8 of the Human Rights Act.
This father may be relying on benefits or have a low income and may not be able to pay a solicitor to act on his behalf. He may be limited in his ability to deal with lengthy or complicated paperwork and may therefore find the idea of dealing with court proceedings without assistance extremely daunting. At the moment he would be entitled to free legal advice from a solicitor. The solicitor would firstly look at whether the matter could be resolved by agreement or via mediation to avoid the need for lengthy and costly court proceedings. However, if the mother continued to deny the father contact with his children then he would be able to make an application to court with the support of legal representation and would be able to secure a court order ensuring an ongoing relationship with his children.
If and when the new laws relating to access to legal aid come in this will not be possible. The father would not be entitled to the initial advice referred to and although he would be entitled to legal aid for the purposes of mediation he would have to contact the mediation service himself. If the mother refused to attend mediation or an agreement could not be reached then the father would either have to make his application to court himself or would have to abandon his efforts to see his children thus denying them a relationship with him as they grew up.
We at Higgins Miller agree wholeheartedly with the importance of protecting human rights. However we would ask Mr Clegg: what is the point in having human rights if they cannot be enforced?