Monday, 22 March 2010

A Human Right to cigarettes?

Yesterday, BBC Surrey reported that a prisoner at HMP High Down is suing the Prison Service, claiming a human right to cigarettes. The prisoner in question was denied tobacco as part of the sanctions applied for disciplinary breaches. In my view, this kind of claim is an abuse of process, a corruption of the very idea of what 'human rights' are meant to stand for and a ludicrous waste of taxpayers' money.

According to the BBC, the claimant is arguing that the cravings he feels amount to 'cruel and unusual punishment' under the Human Rights Act. This is nonsense. Article 3 of the European Convention banned torture, inhuman or degrading treatment. It was inspired by Nazi horrors during the second world war - and never intended to cover perks in prison. Whilst the interpretation of Article 3 has expanded too far through judicial legislation at the European Court of Human Rights in Strasbourg, this case shows how the Human Rights Act has made the situation worse for Britain.

First, we had the expansion of 'inhuman and degrading treatment' to allow prisoners to sue the Prison Service for getting them off methadone, a commendable effort by prison authorities to get addicts to go clean of all drugs. The government paid millions of taxpayers money to settle - rather than fight - these trumped up claims. As I warned in my book, The Assault on Liberty, settling out of court would only encourage even more spurious claims - most funded on legal aid. Sure enough, prisoners are now claiming a human right to cigarettes, a ridiculous idea in itself, but also a deliberate attempt to frustrate the disciplinary regime in our prisons.

The case may get thrown out of court. But, regardless, it shows a rights culture that is out of control, and common sense turned on its head. Let's face it, we are a far cry from the epic struggles for freedom that inspired Nelson Mandela, Martin Luther King or - in Britain - Emmeline Pankhurst. And, we cannot blame this on Strasbourg - I'm not aware of any cases there upholding such daft claims. This is a result of the way we implement the European Convention via UK law under the Human Rights Act - yet one more reason to replace it with a British Bill of Rights.


Roger Smith said...

I see from the Daily Telegraph coverage of this case that Mr Foster, the prisoner in question, is basing his case on alleged breach of the Bill of Rights 1689 as well as the Human Rights Act. It is not, therefore, apparent that amendment of the latter would entirely deter this type of litigation.

Dom Raab said...


A very warm welcome to the blog, and delighted that the esteemed Director of Justice reads the Daily Telegraph. Of course, you may be right. However, it does occur to me that we didn't have a case of someone suing - on the basis of a human right to cigarettes - make it to court in over 300 years since the 1689 Bill of Rights. So, I am going to wager that it is the Human Rights Act that is responsible. Still, I admire your tenacious defence of the HRA at all costs!

Best, Dominic

Roger Smith said...

You might be right but the phrase 'cruel and inhuman punishment' is a quote from the Bill of Rights not the European Convention on Human Rights. The convention uses different wording. And, it seems entirely plausible that it might take lawyers three hundred years to come up with such an ingenious argument.

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