In today’s Daily Express, Stephen Pollard has written an article entitled We must regain right to kick out foreign criminals. There is a lot wrong with the article, not least the misrepresentation – not for the first time, either – of a 2007 case involving the failed deportation of headmaster Philip Lawrence’s killer.
Pollard is responding to the European Court of Human Rights ruling in Sufi and Elmi v UK, in which the court ruled that the situation in Somalia was so dire that except in very limited scenarios it will not be possible to deport people back to the country. Rosalind English has already examined the case in more detail.
As I say, there are many problems with the article, which follows the standard anti-human rights act playbook. It is worth addressing them as they are likely to be repeated elsewhere. Here are just a few.
First, that we are now “simply a vassal of unelected foreign judges“. In fact, judges of the European Court of Human Rights are elected. The United Kingdom nominates its own candidate and has 18 seats on the Parliamentary Assembly which decides who is chosen. For the record, this is far more democratic accountability than we have in relation to our own judges.
We are also not a “vassal”. Parliament still reigns supreme in our political system and we can choose to ignore European Court of Human Rights rulings if we wish. The government is currently doing so in relation to prisoner votes, and the sky has not yet fallen in.
Secondly, the Somalis’ “human rights… would be infringed if they were sent back to Somalia because it is a dangerous place and there is a possibility they might face “inhuman or degrading treatment”. This wholly misrepresents the decision. Mogadishu - and not the whole of Somalia – is not just “dangerous“. Rather, as the court put it, “since the beginning of 2010 the ongoing fighting… has resulted in thousands of civilian casualties and the displacement of hundreds of thousands of people”.
And it is not just a “possibility” of inhuman or degrading treatment that the court was concerned with (arguably, there is a similar possibility for everyone everywhere) but a “real risk“, which is the correct test for deportation cases.
Thirdly, “Anyone – a serial killer, a paedophile, a drug baron or any other dangerous criminal – has the right to remain in the UK, free of any possible threat of deportation if their country of origin is in any way held to be unsafe”. This is plainly wrong. In order to avoid deportation, a person must themselves be at a real risk of inhuman or degrading treatment if they are deported.
Fourthly, the fact that we cannot deport people if they are at a real risk of torture is apparently “All because we are signatories to the European Convention on Human Rights“. In fact, UK authorities are unable to deport people at such risk for other reasons; namely, the 1689 English bill of rights which outlaws “cruell and unusual punishments“ and article 3 of the 1984 United Nations Convention against Torture , which provides that “No State Party shall expel, returnor extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
So, pulling out of the European Convention on Human Rights would not free us of our obligations to prevent people being tortured. It is interesting that Pollard mentions in passing that the decision will also prevent the deportation of many asylum seekers. The implication is that we should be sending everyone back to failed states, regardless of the facts of their individual cases. This would put us at odds with every other civilised state. Is this really what the general public wants?
Finally, Learco Chindamo. Pollard writes:
We have been here before. In 2007 an attempt was made to deport Learco Chindamo, the murderer of headmaster Philip Lawrence. But under Article 8 of the Human Rights Act – which enshrines the Convention in British law – Chindamo has the right to a family life. His family live in London and he left Italy aged five, so the Asylum and Immigration Tribunal ruled that deporting him to Italy would be a breach of his human rights.
As I have written before, Chindamo’s arguments (you can read the judgment here) under the Human Rights Act played second fiddle to the main thrust of his case, which was centred on of EU freedom of movement law; namely, the Citizens’ Directive 2004. Although human rights were considered in Chindamo’s case, and he succeeded in his arguments, even if he had lost on human rights grounds the UK would still have been prevented from deporting him because of EU freedom of movement law.
And if you don’t believe me, Lord Neuberger, the Master of the Rolls, made the same point at paragraph 39 of a recent speech:
the reason why [Chindamo] could not be deported had however nothing whatsoever to do with Article 8…(So I suppose it was the fault of Brussels or Luxemburg, but not Strasbourg.)
Lord Neuberger also said
It is a sign of a healthy democracy that there are different views within society and that the outcome of individual cases, and the balance struck between individual rights, can be vigorously debated. But such debates must be based on fact not misconception, deliberate or otherwise. Persuasion should be based on truth rather than propaganda.
Absolutely right. There are plenty of legitimate ways to criticise the human rights act, Strasbourg’s perceived excesses and our powerlessness to deport criminals. But misrepresenting the law will lead to an ill-informed debate. This will only serve to do the “cause of justice“, as Pollard appeals to, immeasurable harm.
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