The Human Rights Act and the NHS: How Theresa May’s proposals go beyond Abu Qatada

Dr Martin Stanton
abu qatada getty 300x225 The Human Rights Act and the NHS: How Theresa Mays proposals go beyond Abu Qatada

Muslim cleric Abu Qatada is released from prison (Getty Images)

Theresa May’s proposal to scrap the UK Human Rights Act (HRA) and withdraw from the European Convention on Human Rights (ECHR) is clearly not just motivated by government legal difficulties over the extradition of Abu Qatada. Her proposal also directly engages with a deep popular fear that current HRA and ECHR legislation would allow a huge wave of new EU immigrants into the UK. Under current HRA and ECHR regulations, such immigrants would acquire the right of free access to healthcare in the NHS. The Eastleigh election recently highlighted the huge potential cost of these health and welfare rights for EU immigrants and May’s new proposal directly provides a simple legal route towards not paying them.

At first sight, the logic of May’s proposal in this NHS context appears straightforward. If you repeal the HRA, you are no longer obliged to observe the general ‘rights to life’, or the duty to ’safeguard life’, contained in Article 2 of the ECHR. You will then also no longer be legally bound to provide any free healthcare for those who have not contributed to the system. This is a simple reflex response, which serves both to save millions of pounds and to calm potential future Tory voters (like those temporarily lost in Eastleigh), who are fundamentally reluctant to subsidize any immigrant healthcare. But what about all those other people who are currently covered by these HRA basic healthcare rights in the NHS, who may not be old enough, fortunate enough, or even able enough to contribute to the national insurance system: for example, children, the disabled, the mentally ill, the persecuted, the poor, the destitute or the elderly?

In this context, the May proposal also significantly fails to mention a further two vital HRA and ECHR safeguards concerning basic human rights to healthcare provision: first Article 3 which prohibits medical involvement or tolerance of torture and Article 14 which prohibits any kind of racist, religious or political discrimination practised or condoned in healthcare (and immigrants may now come to take up new prominence in this category). We should also note that a British Army officer Dr Derek Keilloh was accused of failing to report evidence of torture on the Iraqi detainee Baha Mousa in June 2012.

It is alarming that these basic human rights that protect a minimum of healthcare and respect for others may come to be so easily and uncritically jettisoned. But it is even more troubling that such a proposal can be based solely on the grounds of cost and austerity.

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  • greggf

    “You will then also no longer be legally bound to provide any free healthcare for those who have not contributed to the system.”

    The French invented human rights yet they don’t provide free healthcare to EU migrants.
    So how do they do it Martin?

  • Neo

    The French are bound by the same ‘right to life’ clauses as anyone else who signed up to the ECHR. There are also the clauses regarding torture and discrimination which will be discraded with scrapping the HRA and leaving the ECHR. Can you imagine popular reaction in France to a proposal that you abandon your bill of rights or leave the ECHR?!

  • Ian Warner

    Article 3 has already been violated by the WCA. All profiteer “providers” of this abomination (ATOS, G4S, Capita, Reed, Serco) as well as the DWP are guilty of conspiracy to defraud, conspiracy to genocide and treason against the people of the Comonwealth. There is only one appropriate punishment for all involved. Death.

  • Popstar2012

    Welcome to the new feudalism !

  • Kean2000

    this is just ridiculous because the immigrants in their own countries DON`T have access to health care if they didn`t pay, if they didn`t contribute for some time

    what if you go as a tourist to London and a car hits you, are you not taken to the hospital?

  • mercury51

    sounds good to me, it’s about time beings learned their place, and stayed in it.

    feudalism was a very good idea.

  • mercury51

    I never I never met a being that could define a*right*, even tough I can. humans live under the illusion that all beings understand the same word in the same way.

    take for example the word ‘world’; I defy anyone to find ten beings who all understand it in exactly the same way, because words evoke different associations in different beings. oddly enough my wife who is fr more intelligent than I am got it right in seconds, but she has two masters degrees in maths, to my one in law, even though I have defeated the British government in the ECHR, which was fun,if not lucrative.; the best bit was thrashing a labour attorney general, even if it was like taking candy of a baby. a channel of mine who is an electric wheelchair engineer told me that in his view, writes had to be understood in the context of duties, and I am hard put to disagree with him. However, I am bound to say that he did not even begin to try to define a *right*, I think he just assumed we both understood the same word in the same way, as most people do, or so it seems to me, because I have not exchanged with most people, but it strikes me that people attach emotional connotations to words like *rights*.

    Oddly enough, the English common layers, did not think to define a right when they drafted the European convention on human rights, which seems rather odd to me since the first question that a lawyer asks is what do you mean by…? Unfortunately they left it up to foreigners are not learned in the English common law to decide such matters, which was clearly a big mistake, rather like allowing the foundation of the State of Israel.

    be that as it may, it is a cardinal rule of statutory interpretation at common law that word should be given their ordinary English meaning, but try telling that to a bunch of foreigners who do not have the benefit of training in the English common law, which has informed many of the countries of the world with its wisdom built up over many centuries, and covering almost every kind of dispute, which is imaginable. Let you, dear reader, ask yourself, “can I actually defying a right?”

    It’s not as easy as you thought, Is it? – Yet you assumed that everybody understood it in the same way; big mistake.

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