Alex has expressed his support for the decision of the majority in posts upon his website. He, Tor and Anna would associate themselves with the following comment that has been provided by Fenella Morris QC and Ben Tankel, both of whom appeared on behalf of P and Q (MIG and MEG).
All seven judges of the Supreme Court subscribed to the fundamental premise that the human rights of disabled people should be protected to the same degree as the human rights as everybody else. The decision of the majority is the only logical conclusion that can follow from this universally accepted premise: if to be subjected to total and effective control and shorn of my freedom of leave would be a deprivation of liberty for me, then why should it not be a deprivation of liberty for someone who lacks capacity?
This unavoidable logical conclusion at long last properly fills the Bournewood gap which, despite HL and the subsequent introduction of the DOLS regime, had continued to swallow many thousands of individuals who were deprived of their liberty in places other than psychiatric words
or care homes. In such cases, the State is interfering to the greatest extent imaginable in the lives of the most vulnerable. That large imbalance of power demands a level of procedural protection. Even if in our civil society the State usually exercises this power benignly, the majority judgment guarantees this is so by requiring the State to demonstrate in each case that the arrangements it makes are justified. The dangers of a lack of this type of protection have sadly been all too plain to see in recent years – see, for example, the Winterbourne View scandal.
The neat logic of the majority approach is reflected in many aspects of the various judgments: (1) It guarantees equality of rights for all; (2) It brings the law up to date by recognising the reality that more and more of those lacking capacity were falling into the Bournewood gap by – in line with current policy - being accommodated in foster placements, supported living arrangements, and other settings that provide them with as normal a life as possible; (3) It does away with the well- intentioned but conceptually problematic comparator approach advocated by the Court of Appeal, while retaining the aim of articulating a simple, workable, and authoritative test; (4) It supplants the notoriously slippery amorphous, multi-factorial approach that decision-makers had been required to adopt to date; (5) On an analytical level, it properly separates issues of justification from the definitional question of the objective components of a deprivation of liberty; And (6) it confronts, head-on, the “bewildering complexity” of the DOLS regime and places reform of an inadequate system firmly on the government’s agenda.
Still, one cannot but sympathise with the criticisms that are now being levelled against the majority judgment. That they are not to be dismissed lightly is attested by the fact that even now they have attracted three justices of the Supreme Court. But the criticisms take as their starting point the practical problems that the majority approach might cause, and work backwards from there. In doing so, they are required to depart from the simple logic of the majority approach. As such, they simply do not stand up to the same analytical scrutiny as the majority view. Witness Lord Neuberger’s comprehensive dismantling of the joint dissenting judgment of Lords Carnwarth and Hodge, which he achieves within the space of a handful of paragraphs.
The major criticisms fall into three area. First, it is said that the extension of the DOLS system will be put under strain. But where the State is interfering so heavily in the life of an individual, this seems a small price to pay for guaranteeing the protection of their human rights. Adults with capacity would accept no lesser level of protection, as demonstrated for example by our very well- developed (and no doubt very burdensome) criminal justice system. If this means that DOLS requires reform (and the recent report of the House of Lords Select Committee suggests it does), then it is quite right for the Supreme Court to point this out to the lawmakers across Parliament Square.
The second area of criticism is that it is difficult to digest that those placed in a loving and relatively normal environment should be described as being deprived of their liberty. The simple answer to this is that, as Lady Hale put it, “a gilded cage is still a cage”. After over five decades of living with the ECHR we should be well used by now to human rights terms – such as “deprivation of liberty” having autonomous meanings that do not correlate exactly with their ordinary usage. Moreover, on an analytical level, this criticism confuses questions of justification with the definition of deprivation of liberty: relative normality might help justify a deprivation of liberty, but it does not impact whether the deprivation of liberty has arisen in the first place. The third main area of criticism is that the majority judgment begs the question of what is meant by “control” and “freedom to leave”. No doubt lawyers and judges will attempt to refine the definition of these terms over time. In the meantime, they provide a much more straightforward test than the previous multi- factorial approach. They also give decision-makers on the ground some necessary flexibility – those examining the facts of individual cases are far better placed than the Supreme Court to assess whether, applying the Supreme Court’s “acid test”, a particular set of facts amounts to a deprivation of liberty. It is also worth noting that part of the reason the Official Solicitor brought these three particular cases forward was because they provide a good range of facts, at or around the borderline, for testing the point of principle. The way in which the Supreme Court applied its test to the facts of the cases before it should therefore serve as a model for future decision- making, without much need for further elaboration of the test.