Introduction

This chapter seeks to identify and review those court and tribunal decisions that are of direct relevance to the human rights of disabled people. Primarily these are judgments of the European Court of Human Rights, although reference is also made to the increasing body of case law emerging from our own domestic courts on this issue. Where relevant, reference is also made to decisions of constitutional courts in other jurisdictions, which although not binding on British courts are increasingly being considered as persuasive when a new or difficult question of law arises. Before embarking on this analysis it is important to address what is perhaps a central theme of this text: namely the reasons why there have been comparatively few complaints by disabled people to the Strasbourg Court.

The issue of access

Rights without remedies are hypothetical and illusory. For the rights embodied in instruments such as the European Convention on Human Rights, to be a concrete reality in the lives of disabled people, they must be accompanied by accessible and effective enforcement mechanisms.

In practice, however, many legal remedies are anything but accessible to disabled people. The obstacles to access take many of the traditional forms highlighted by the proponents of the social model of disability. They include physical barriers to older court buildings, the imposition of particular rules for people considered to lack mental capacity, the lack of adequate advocacy and legal aid support as well as the attitudes of lawyers and administrators. A measure of the problem is the dearth of complaints by disabled people to the Court in Strasbourg – explicable only in terms of the severe impediments disabled people face in gaining access to the civil justice process. It may indeed be that the severity of impairment bears a direct relationship with the severity of the impediment encountered.

One of the earliest Strasbourg judgments concerning access to the civil justice process concerned restrictions placed upon the access of prisoners to lawyers, Golder v UK (1975). In this case, the UK argued that although the relevant Article of the Convention, Article 6(1), guaranteed the right to a fair hearing it did not oblige the state to enable applicants to have access to lawyers/advocates in order to instigate the civil process.