In a parliament known for its high percentage of lawyers (in contrast to Victoria’s), I forgot that Bob Carr is a rare exception: a journalist. So, I perhaps he can forgiven for not doing the very basic legal research required to test his rights statute anecdotes, which, it seems, he (or his UK mate) probably just gathered by googling. Here are his two UKHRA claims concerning prisoners:
In Scotland, because of a delay in placing toilets in prison cells, the Scottish Law Reporter estimates that prisoners may be entitled to awards totalling pound stg. 76 million ($158.7 million) because their cells violated the European Charter of Fundamental Rights. The Government had been caught up with another priority, expanding drug rehabilitation programs for inmates. Last year, pound stg. 750,000 was paid to 197 heroin-addicted prisoners who successfully argued that cutting short their treatment while in prison breached their human rights.
Now, he has the law right in both cases but he left out some interesting facts and made one serious misrepresentation.
One interesting fact is that the ‘Scottish Law Reporter‘ isn’t, despite its name, a professional legal journal but rather a blog (and who would trust what’s written in a blog?) In fact, this blog mostly just sets out others’ comments and the entry apparently relied on by Carr (for the claim about the conflicting government priorities) was actually an Oped written by Lord McCluskey. He happens to be a long-time critic of the HRA (and the Canadian Charter) whose strident criticism of the HRA back in 2000 (including aspersions cast on particular European nations and the claims of ‘convicted prisoners [and] men engaged in homosexual conduct in private’), delivered in a Scottish newspaper right after he rejected an appeal of Dutch nations raising their ECHR rights, saw that decision overturned and him effectively barred from all future HRA cases. No wonder he author of the blog (“Legal Beagle’) described the OpEd as ‘pontification.’ Carr’s journalism skills seem to be a little rusty!
Another curiosity is that, in contrast to his willingness to mention the relevant rights in his BC doctors anecdote, Carr (unlike McCluskey) somehow failed to mention that the main right in issue in both of the cases described by Carr was the right against ‘degrading treatment’, which, in Europe and Australia is protected in the following terms:
10 A person must not be- (a) subjected to torture; or (b) treated or punished in a cruel, inhuman or degrading way…
Fancy giving the courts a say (when it comes to statutory interpretation and executive discretion) on issues like this? (The toileting case also relied on the right to privacy, but only as an alternative if the degrading treatment argument was incorrect.)
Also, neither of the payouts he mentions was ordered by a court, but was rather the product of a a legal settlement between the various crowns involved and the prisoners, in each case with the crown insisting that it careful chose between meritorious and unmeritorious claims. But there were earlier court decisions in each case. The Scottish case involved a remandee who had suffered from extreme eczema from the age of 2 months who, despite suffering an infected outbreak, was placed in a cell block that used the toileting practice of ‘slopping out’ – basically, you and your cellmate shit in a bucket that you and other prisoners poured into a communal trough up to four times a day, a practice long abolished elsewhere in the UK and slated for abolition years earlier in Scotland before funding was diverted – and not moved despite having one of the worst outbreaks a prison doctor had ever seen. The heroin case was a ECtHR ruling involving a heroin-addict who died three weeks after being imprisoned, having spent most of the time of vomiting. The ruling was based on poor medical response to her dehydration, but the English authorities were probably a little chilled by the Court’s endorsement of her treatment with heroin withdrawal medication, as they had recently switched to a ‘cold turkey’ approach to heroin addicts. In short, both cases – and the resulting settlements – concerned the duty of the state with respect to prisoners’ health, hardly a matter that is typically regarded as the proper realm of parliamentary politics.
And what of Carr’s delicious claim that the Scottish toileting problem was the result of diversion of funding to drug rehabilitation, which presumably would have been handy to those heroin-addict prisoners (or at least any Scottish ones?) Well, I don’t think rehabilitation is quite the right word (and it wasn’t used in the McCluskey rant Carr apparently relied upon.) The Scottish authorities did indeed decide to delay installing proper toilets, instead choosing to spend available funds elsewhere:
That £13m has been spent on other priorities in the Justice Department, such as a drug enforcement agency, tackling domestic violence, and establishing a witness support scheme for all of Scotland’s sheriff courts. Those are proper priorities. Government is about making choices; those are the choices that we have made.
Now, checking out the Scottish Drug Enforcement Agency’s website, it doesn’t really look like drug rehabilitation features on its list of functions, which instead seem mostly about putting more drug criminals in prison. There is talk in the judgment of a run-down in available prison funding due to an increase of drug-addicted prisoners (hmmm, I wonder what agency caused that to happen?), not to mention prison suicide and riots, but re-branding that rush of inmates as a government ‘priority’ of ‘expanding drug rehabilitation programmes’ seems a bit rich. The decision of the Scottish prisons not to fix their plumbing problem is now pilloried there by some as a classic false economy, given the damages claims the prisons became exposed to.
Also, need I mention – Carr sure doesn’t – that damages aren’t available under the Charter?