Thursday, 19 September 2013

Comparative law - that's the way it is

Comparative law

Anyone remember the riots?
You know, the disturbances over a couple of nights in a few cities. A few hundred people were involved and the media was all over it. Come on, you must remember it. All night courts and massively harsh punishments delivered to make people clear that “this will not be tolerated”. Nick a bag of rice? That’ll be two years in jail. Remember it now?


Anyone remember the Mental Health Act? You know, that piece of legislation that was meant to protect rights of people in  psychiatric hospitals; a reaction against the barbarous excesses of the old asylums. The one that was amended in 2007 to ensure that people had support in understanding and making use of their rights. Oh you must remember it, the CQC report on it every year. They always say how people aren’t being given what is theirs by right. They talk about unlawful detention, of using the threat of being sectioned to keep people on the ward. They’ve reported year on year that the law is being broken in thousands of cases. God, the judges mustn’t be able to catch a break, eh? All night sittings for a few hundred offences, imagine what the work load is for dealing with these ongoing, systematic breaches of the law.
What’s that? No prosecutions? Not one? Well, surely it can’t be through lack of evidence, I mean there’s reams of the stuff in the CQC reports. And surely it can’t be through a lack of access to legal systems, I mean it’s the CQC. They must have a lawyer or two knocking around the place. Surely they’ve not been hamstrung by cuts to legal aid.

So what’s going on?

To the untrained eye it appears that depriving someone of their liberty and dignity are things best addressed by holding up a mirror and going tut. Depriving a supermarket chain of a bag of basmati will bring down the full force of the law. To my untrained eye this  is wrong.

It’s a comparative law system. Some laws are enforced, others are write only documents. What happens when a health service or one of its employees breaches the mental health act? What is the penalty when this is done again and again, year after year? Where is the motivation to change when your failings are reported on but nothing happens?

Laws or frameworks that are not enforced are mere fig leaves of protection; they tell us what should be and ignore what is happening. This has a corrosive effect on people’s understanding of the law and of their rights. As I remember the reason for punitive sentencing of rioters was that the rule of law would otherwise be undermined. The number of people who put up with injustices in the care system because “that’s just how it is” tells us that the rule of law has already been undermined here. Something needs to change.