Book review: Detention and its Alternatives under International Law

Detention and its Alternatives under International Law (Lorna McGregor, Oxford University Press, 2023, 288 pages, hardback and ebook, £90)

It might be thought that there was little new to say about detention / deprivation of liberty from a legal perspective.  There may be a great deal to say about how it is over-used in different contexts, people may well have very different views about whether or not it is ever justified, and there will remain a rich vein of arguments about policy responses, but from a purely legal perspective, the horse might appear thoroughly flogged.  Lorna McGregor, Professor of International Human Rights Law at the University of Essex, clearly shows that this is incorrect, by examining the concept across the spectrum of international law, as opposed to the usual approach of diving deep into it in one context.  To so do, she examines the concept of deprivation of liberty in international law (in both UN and regional human rights treaties), the overall framework on the prohibition of arbitrary detention in international law, and then turns her attention to five areas where deprivation of liberty arises most frequently: (1) criminal justice; (2) security; (3) migrants; (4) mental health and social care; and (5) public health.  In a concluding chapter, she draws the threads together to develop her thesis that there has been too much attention on procedural questions relating to detention, and insufficient attention to the substantive question of when (if at all) detention is justified – and hence, insufficient attention to the development of true alternatives to detention.

McGregor’s book is crisp and stimulating, and the footnotes and references provide a very useful lead into the literature to those wanting to explore further in relation to the areas she covers.  It is also extremely useful for those very (perhaps even grimly) familiar with the application of the concept in one area to see how it is understood in others, not least to be able to ask as to the assumptions being made.  And her insights are illuminating even for those familiar with a specific area.  For instance, it is refreshing – and important – to see McGregor treating mental health detention and social care detention as separate phenomena (drawing in this on the work of Lucy Series: in particular, Deprivation of Liberty in the Shadows of the Institution (Bristol University Press, 2022).  Too often, these are treated as the same thing, when it is not obvious that ‘hard cases’ in the two contexts are actually the same, or demand the same response.

Appreciating that there are always choices that need to be made in selecting what falls within and without the scope of a book, there were two apparent choices that were made that I regret.

The first is the absence of an interrogation what, precisely, is the ‘liberty’ that international law seeks to protect.  Both at international and at (at least European regional) level, it is perhaps a narrower concept than might be expected.  It is not, for instance, ‘liberty’ in the US Constitutional sense of ‘life, liberty and the pursuit of happiness.’  Rather, the UN Human Rights Committee has made clear that “[l]iberty of person concerns freedom from confinement of the body, not a general freedom of action” (Human Rights Committee, General Comment No 35 on Article 9 ICCPR).  And in relation to the ECHR, MacDonald J identified in Manchester City Council v CP & Ors [2023] EWHC 133 (Fam) that in the mental health / social care detention “context, and historically, the concept of liberty under Art 5(1) of the ECHR contemplates individual liberty in its classic sense, that is to say the physical liberty of the person” (paragraph 26).

The distinction and the relationship between liberty – Article 5 in ECHR terms – and autonomy – Article 8 in ECHR terms – is a tangled and difficult one.  McGregor alludes to this in places, and the European Court of Human Rights commented on it in Munjaz v United Kingdom [2012] ECHR 1704, in relation to a person detained in a high security hospital under the Mental Health Act 1983, noting (at paragraph 80) that:

the importance of the notion of personal autonomy to Article 8 and the need for a practical and effective interpretation of private life demand that, when a person’s personal autonomy is already restricted, greater scrutiny be given to measures which remove the little personal autonomy that is left.

More broadly, I would have welcomed McGregor’s thoughts about the precise meaning of the concept of liberty, and (for instance) about the extent to which arguments about liberty – especially in the social care detention context – are really proxies for arguments about autonomy.  One way of putting this, for instance, is to ask whether Cheshire West really less a case about deprivation of liberty of those with cognitive impairments, and more a case about concerns relating to decisions being made which do not properly take into account their broader autonomy rights?

My second regret is that more attention was not paid to the links between the ‘abolitionist’ movements in the criminal justice and the mental health / social care detention zones.[1]  It would, for instance, have been very interesting to see McGregor’s perspective on the implications of the ‘hardline’ interpretation of Article 12 CRPD for criminal justice detention.  In other words, does the CRPD (perhaps ironically) push towards the greater use of criminal detention as the only non-discriminatory approach to a concept of legal capacity.  Is equal recognition of criminal responsibility for actions on the part of those with cognitive impairments the other side of the coin for the equal recognition of their right to make decisions irrespective of any asserted mental incapacity to do so?  And, if so, how does this sit with the abolitionist view of detention in the criminal justice context?

These two regrets do not alter my very clear view that this is an excellent book, both in its approach and its execution, and one that merits a place on the bookshelf of anyone who wants to think seriously about deprivation of liberty and how its use can be reduced or even abolished.

[Full disclosure, I was provided with a review copy of this book by the publishers.  I am always happy to review books in the field of mental capacity and mental health law (broadly defined).]


[1] Indeed, the abolitionist movement in the criminal justice setting gets perhaps surprisingly little attention given its dramatic implications: see, for instance, Isobel Renzulli, ‘Prison Abolition: International Human Rights Law Perspectives’ 26 International Journal of Human Rights 100 (2022).

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