Human Rights Act 1998 ( Excerpts)
Sick claimants are being disqualified illegally !
According to the above mentioned Act, which was incorporated
into Law, by the Westmister Government in October 2000, and also incorporated
into Scots Law by the Scottish Parliament shortly after its inception in 1999.
; Claimants are being summarily disqualified from receiving benefits, without
first recourse to a fair hearing.
Claimants are disqualified first, and then have to
wait for up to six months for thier legally entitled "fair hearing".
This also leads to, inhuman and degrading treatment, in terms of the Act.
Furthermore the DSS does not even follow it's own
rules with regard to Medical opinion, and that in itself may be held to have
breached certain aspects of the HRA1998.
This is a highly complex document, by all accounts, The
full text of which can easily be see on the Government's own Public website at
:
However I have copied the introduction, and the part relating to
behaviour of Public Authorities ( in this case the DSS ).
The actual rights themselves are defined at the Goverment's site.
I also append some Notes from a further "official" site at
One Crown Office Row. I wonder if this site was meant to be
"Public Access" since there are such detailed explainations
of actual cases, and far more information on breaches of these
Laws than is usually available to "Joe Ordinary". I wonder if
this site is actually for the use of Court and Govt. officials.
Anyway there does not seem to be any restrictions on who is
allowed entrance, nor any warning notices etc.
An Act to give further effect to rights and freedoms guaranteed
under the European Convention on Human Rights; to make provision with respect
to holders of certain judicial offices who become judges of the European Court
of Human Rights; and for connected purposes.
[9th November 1998]
BE IT ENACTED by the Queen's most Excellent Majesty,
by and with the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority of the same,
as follows:-
Introduction The Convention Rights.
1. - (1) In this Act "the Convention rights" means the rights and fundamental
freedoms set out in-
(a) Articles 2 to 12 and 14 of the Convention,
(b) Articles 1 to 3 of the First Protocol, and
(c) Articles 1 and 2 of the Sixth Protocol,
as read with Articles 16 to 18 of the Convention.
(2) Those Articles are to have effect for the purposes of this Act subject to
any designated derogation or reservation (as to which see sections 14 and 15).
(3) The Articles are set out in Schedule 1.
(4) The Secretary of State may by order make such amendments to this Act as
he considers appropriate to reflect the effect, in relation to the United Kingdom,
of a protocol.
(5) In subsection (4) "protocol" means a protocol to the Convention-
(a) which the United Kingdom has ratified; or
(b) which the United Kingdom has signed with a view to ratification.
(6) No amendment may be made by an order under subsection (4) so as to come
into force before the protocol concerned is in force in relation to the United
Kingdom.
Acts of public authorities.
6. - (1) It is unlawful for a public authority to act in a way which is incompatible
with a Convention right.
(2) Subsection (1) does not apply to an act if-
(a) as the result of one or more provisions of primary legislation, the authority
could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation
which cannot be read or given effect in a way which is compatible with the Convention
rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section "public authority" includes-
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions
in connection with proceedings in Parliament.
(4) In subsection (3) "Parliament" does not include the House of Lords in its
judicial capacity.
(5) In relation to a particular act, a person is not a public authority by virtue
only of subsection (3)(b) if the nature of the act is private.
(6) "An act" includes a failure to act but does not include a failure to-
(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b) make any primary legislation or remedial order.
Proceedings. 7. - (1) A person who claims that a public authority has acted (or
proposes to act) in a way which is made unlawful by section 6(1) may-
(a) bring proceedings against the authority under this Act in the appropriate
court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
(2) In subsection (1)(a) "appropriate court or tribunal" means such court or tribunal
as may be determined in accordance with rules; and proceedings against an authority
include a counterclaim or similar proceeding.
(3) If the proceedings are brought on an application for judicial review, the
applicant is to be taken to have a sufficient interest in relation to the unlawful
act only if he is, or would be, a victim of that act.
(4) If the proceedings are made by way of a petition for judicial review in Scotland,
the applicant shall be taken to have title and interest to sue in relation to
the unlawful act only if he is, or would be, a victim of that act.
(5) Proceedings under subsection (1)(a) must be brought before the end of-
(a) the period of one year beginning with the date on which the act complained
of took place; or
(b) such longer period as the court or tribunal considers equitable having regard
to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to
the procedure in question.
(6) In subsection (1)(b) "legal proceedings" includes-
(a) proceedings brought by or at the instigation of a public authority; and
(b) an appeal against the decision of a court or tribunal.
(7) For the purposes of this section, a person is a victim of an unlawful act
only if he would be a victim for the purposes of Article 34 of the Convention
if proceedings were brought in the European Court of Human Rights in respect of
that act.
(8) Nothing in this Act creates a criminal offence.
(9) In this section "rules" means-
(a) in relation to proceedings before a court or tribunal outside Scotland, rules
made by the Lord Chancellor or the Secretary of State for the purposes of this
section or rules of court,
(b) in relation to proceedings before a court or tribunal in Scotland, rules made
by the Secretary of State for those purposes,
(c) in relation to proceedings before a tribunal in Northern Ireland-
(i) which deals with transferred matters; and
(ii) for which no rules made under paragraph (a) are in force,
rules made by a Northern Ireland department for those purposes,
and includes provision made by order under section 1 of the Courts and Legal Services
Act 1990.
(10) In making rules, regard must be had to section 9.
(11) The Minister who has power to make rules in relation to a particular tribunal
may, to the extent he considers it necessary to ensure that the tribunal can provide
an appropriate remedy in relation to an act (or proposed act) of a public authority
which is (or would be) unlawful as a result of section 6(1), by order add to-
(a) the relief or remedies which the tribunal may grant; or
(b) the grounds on which it may grant any of them.
(12) An order made under subsection (11) may contain such incidental, supplemental,
consequential or transitional provision as the Minister making it considers appropriate.
(13) "The Minister" includes the Northern Ireland department concerned.
Judicial remedies. 8. - (1) In relation to any act (or proposed act) of a public
authority which the court finds is (or would be) unlawful, it may grant such relief
or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages,
or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances
of the case, including-
(a) any other relief or remedy granted, or order made, in relation to the act
in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of
that act,
the court is satisfied that the award is necessary to afford just satisfaction
to the person in whose favour it is made.
(4) In determining-
(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles applied by the European Court
of Human Rights in relation to the award of compensation under Article 41 of the
Convention.
(5) A public authority against which damages are awarded is to be treated-
(a) in Scotland, for the purposes of section 3 of the Law Reform (Miscellaneous
Provisions) (Scotland) Act 1940 as if the award were made in an action of damages
in which the authority has been found liable in respect of loss or damage to the
person to whom the award is made;
(b) for the purposes of the Civil Liability (Contribution) Act 1978 as liable
in respect of damage suffered by the person to whom the award is made.
(6) In this section-
"court" includes a tribunal;
"damages" means damages for an unlawful act of a public authority; and
"unlawful" means unlawful under section 6(1).
Quite apart from the behaviour of the DSS in these cases, which itself is illegal
in terms of the ACT ; their behaviour can be construed to have infringed upon
certain other Articles of the Convention Itself.
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The following brief notes from "One Crown Office Row"
There are screeds of info about actual cases here.
These articles here refer only to the HRA1998 so
far as the medical aspects are concerned.
*********
Medical Law
Key Articles here are the prohibition on torture, inhuman or degrading treatment
under Article 3 ; and the right to privacy under Article 8, which implies a
right to physical integrity and a right to personal information, as well as
protection from the unauthorised disclosure of confidential medical records
.
There is also scope for claims under the right to a fair trial under Article
6 both in respect of delayed or unfair proceedings for compensation claims,
and in relation to hearings before medical tribunals on discliplinary matters.
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Article 3 of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment or
punishment."
This Article admits of no limitations or derogations. In Chahal v United Kingdom
(1997) 23 EHRR 413, a Sikh, believed by the UK government to have engaged in terrorist
activities in the United Kingdom, aimed at undermining lawful government in India,
was made subject to a deportation order. He challenged the order under Article
3 of the Convention, arguing that if he were forcibly returned to India there
was a real danger of persecution. The Strasbourg Court upheld this claim, observing
that there could be no qualification of the protection offered by Article 3, even
in the case of individuals representing a threat to public order like the applicant
in this case.
The Strasbourg authorities have imposed high threshold for treatment falling within
the scope of Article 3; it must exceed "a certain roughness of treatment" (The
Greek Case, Nos 3321 - 3/67, 11 YbK of the ECHR (1969) 501). The provision is
relevant mainly in relation to action carried out by agents of the state since
the ritualised elements and public humiliation of institutional punishment themselves
contribute to the element of severity required by the Article.
It could be held also that, for instance ; the DSS handling of Benefit Claimants
disqualification and appeals, as laid down by the Policy Document by
A.Darling MP. , actually amounted to "Degrading and Inhuman Treatment" and "Public
Humiliation" in terms of the Articles of the Convention.
***********************
Human Rights Incorporated Rights
Freedom from Torture or Inhuman and Degrading Treatment
2. Definition of Terms
"Inhuman treatment and punishment"
This covers treatment which is intended to cause suffering, so that even if the
injury is apparently slight, the vulnerable position of the victim and the attitude
of the perpetrators will themselves contribute to the severity of the treatment:
Tomasi v France (1992) 15 EHRR 1.
Cases where injuries have been received while resisting arrest do not usually
succeed under this head: Klass v Germany (1993) 8 EHRR 305. Compulsory feeding
and medical treatment of a mental patient will not amount to inhumane treatment
if it is necessary "to preserve the physical and mental health of patients who
are entirely incapable of deciding for themselves". The Court reached this judgment
despite the allegations that the applicant had been handcuffed to a bed with a
belt placed around his ankles for a month (Herczegfalvy v Austria (1992) 15 EHRR
437). This decision suggests that there are possibilities for derogation built
into the substance of Article 3, although most Strasbourg case law indicates that
no derogation is permissible under Article 3.
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If the intent and or attitude of the DSS can be held to be deliberate
and that they could reasonably be found to aware of the consequences
of thier actions ( whether by anecdotal evidence or tribuneral reports etc. )
then they could be held to be in breach of this article.
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"Degrading Treatment or punishment"
The exposure of a potential deportee to the suffering of illness leading to
death in a country where there is inadequate healthcare has been held to engage
the state's liability for inhuman and degrading treatment: D v United Kingdom
(1997) 24 EHRR 423. See here for recent cases in this area.
Article 3 also applies where there is a probability that the person being expelled
will be exposed to inhuman and degrading treatment or punishment, such as the
"death row phenomenon" in the United States: Soering v United Kingdom (1989)
11 EHRR 439
I wonder whether the DSS may be guilty of this one too,
as Claimants are
knowing subject to hardship and anguish, which might well cause sick and
disabled persons to become very much worse, and possibly even shorten
thier life expectancy.
**********************************************************
Human Rights Incorporated Rights
The Right to a Private and Family Life, Home and Correspondence
2. Respect for Private Life
Confidentiality
Private life includes office premises and therefore may be relied upon to protect
business confidentiality: Niemitz v Germany A 251 B para 29 (1992); Halford
v United Kingdom , (1998) 3 BHRC 31; Kopp v Switzerland (1998) 5 BHRC.
The right to a private life under Article 8 also includes the right not to have
private information disclosed to third parties. This includes the unnecessary
disclosure of confidential medical data in legal proceedings: Z v Finland (February
1997 No 91/1996/627/811) and the unauthorised passing on of medical information
from a hospital to authorities in the process of verifying a claim for social
insurance and disability benefit: MS v Sweden (1998) EHRLR 115. In both cases
a breach of Article 8 was found to have taken place but was in each case held
to be justified in the circumstances.
I allege that this was breached here by the DSS since Claimants
GPs were solicited for information (on a paid basis) and opinions,
on patient's medical conditions, without reference to the actual patients
themselves. GPs actually volenteered information that was not asked
for specifically ( to pad out thier replies ), and this is, in itself a "breach".
******************************************************
Access to Personal Information
The right to a private life under Article 8 also guarantees to individuals the
right to certain types of information about their personal history. Where such
information is essential for an individual's knowledge about his own past, denial
of access to this material may amount to a breach of Article 8: Gaskin v United
Kingdom (1989) 12 EHRR 36. G wanted to take proceedings against a local authority
for personal injuries he alleged he had suffered when he was in their care as
a child. Access to some of his files was denied on the basis of confidentiality.
The Court took the view that this information constituted the only coherent record
of the applicant's early childhood and formative years and that the refusal of
the local authority to grant G access, without any kind of independent scrutiny
to determine the genuineness of the confidentiality claim amounted to an infringement
of the right to a private life in Article 8.
There might well be a number of breaches here, in that the DSS failed to
produce any evidence for thier actions or decisions, and simply state that,
they have used "information from your claim pack and doctor".
*********************************************
Similarly, I fell that it could be held that the DSS have similarly
breached these articles in the further sections about ;
3. Respect for Family
4. Respect for the Home
5. Respect for Correspondence
****************************************
All the foregoing refers to the 1998 Act as Ratified recently.
Apparently the actual LAW is derived from the CASES.
That does not prevent a Suit upon the Grounds of the
Articles themselves, but it is easier to cite a Case for Precedence.
*****************************************
That is a brief grounding then on the ACT of Parliament
which bind the DSS in it's dealings with Claimants, and
as far as I see there are very many breaches / hazards for the DSS.
Check the web URLs at the top of this document for more details.
note: these are hot links just click on them, or you can save / copy / paste them
into your web browser's address bar, if you so wish.
............................Public Spy