Dominic Raab MP has tabled an amendment to the Crime and Courts Bill which if passed would stop foreign criminals from using Article 8 of the European Convention on Human Rights (the right respect for private and family life) to prevent their deportation. The amendment has significant support.
As regular readers of this blog will know, the deportation of foreign criminals has become something of an obsession for opponents of the Human Rights Act, most notably the Home Secretary Theresa May who has attempted, thus far unsuccessfully, to downgrade the effect of Article 8 through the Immigration Rules. The campaign to prevent foreign criminals avoiding deportation has had strong support from the right-wing press, particularly the Daily Mail as well as the Telegraph.
Since attempts to disapply foreign criminals’ human rights through secondary legislation have predictably failed, the next step is to attempt to do the same through primary legislation. As Raab has pointed out, the amendment amounts to just nine simple words:
‘In section 33(2)(a) of the UK Borders Act 2007, for “Convention rights”, substitute “rights under Articles 2 or 3 of the Convention”.
Simple they may be, but those nine words are likely to set up a highly significant clash between the courts and Parliament, leading to a potentially nuclear confrontation with Strasbourg. Let me explain how.
The effect of the Borders Act 2007 is that non-citizens who have been convicted of crimes which result in prison sentences of more than one year are automatically deported. There are a few limited exceptions listed in section 33, including, presently, if the deportation would conflict with the person’s ECHR rights, including Article 8.
The effect of Raab’s amendment would be to limit that exception only to articles 2 and 3, that is the right to life and the right not to suffer torture/inhuman/degrading treatment. Therefore, a deportation could take place even if it breached other rights, including but not limited to article 8. It would also be lawful in circumstances where the deportation would breach article 6, that is the right to a fair trail.
What would happen if the amendment succeeds? Without going into too much detail, the Human Rights Act allows courts effectively to ignore secondary or subordinate legislation which conflicts with ECHR rights. However, if primary legislation, that is an Act of Parliament, conflicts with Convention rights, a court only really has two options.
First, “read” the legislation “so far as is possible to do so” in a way which is compatible with Convention rights (section 3(1)). But that option is only available if the legislation is ambiguous; although courts have gone quite far in “interpreting” legislation, they cannot do so in a way which conflicts with the unambiguous intention of Parliament, that is contradicts the clear wording of a statute. So that option wouldn’t work here.
The second option would be to make a “declaration of incompatibility” under section 4(2). But the Human Rights Act carefully preserves Parliamentary sovereignty by not giving courts the power to strike down primary legislation (as the American Supreme Court effectively can), and so section 4(6) makes absolutely clear that a declaration of incompatibility “does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given”. Which means that in the case of primary legislation, it remains a declaration only, not a repeal of the offending provision.
So where does this leave Dominic Raab’s amendment, or if it fails to pass, the Home Secretary’s threatened primary legislation along the same lines? In short, courts would most probably have to apply the amendment over and above the Human Rights Act. I may be missing a point of principle here (please do comment if I am [update - see below re constitutional statutes and the EU Charter - both interesting arguments but still quite left-field]), but it seems that this would be the outcome in the domestic courts.
But as we know, the human rights story doesn’t stop at the doors of the Supreme Court. It ends in Strasbourg, at the European Court of Human Rights. It is extremely likely that the effect of this amendment will be the focus of an application to Strasbourg. And it seems just as likely that the application will be successful, and Strasbourg will rule that disapplying foreign criminals’ article 8 (and other) rights breaches their… article 8 and other rights.
The UK has agreed to “abide by” judgments of the European Court of Human Rights by signing up to the ECHR (see article 34). The only way to avoid this is to beach international law, or leave the Convention entirely.
And that, it seems to me, is exactly where the supporters of this amendment want. Because they will be able to say that Parliament and the UK Supreme Court has ‘supported’ this amendment and only Strasbourg stands in the way of the deportation of foreign criminals. This will present a focus and a rallying cry for those who want to leave the jurisdiction of the court altogether. And whilst the courts are figuring out the implications, more foreign criminals will be deported, providing useful statistical ballast for the day after Strasbourg tells the UK it must amend the law.
How long will this process take? Perhaps two to three years, leading us to around 2015-16, the very time which a majority Conservative Government might be considering “all options”, as the Home Secretary promised at the weekend, including leaving the European Convention itself. A trap indeed, but one which Strasbourg will have no option but to fall into.
Update 13.03.13, 11:50am: For excellent further coverage (which considers the legal position in more detail than I do above), see Dr Mark Elliott’s post here.
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