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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Theresa May needs to either put up or shut up, she threatens, she promises legislation after 2015 to pull out of the convention / abolish the HRA / whichever pet peev she has of the day that she can blame on Human Rights, she spreads lies about domestic pets, she lies about which court makes a ruling (i.e. in her world Immigration tribunals suddenly morph into Strasbourg or government regulations morph into the HRA or ECHR whenever it suits her nihilistic agenda), she drip feeds venom, hearsay and misinformation into the tabloids… and she does NOTHING. She should either do as she says she will NOW and allow us all to deal with it or she should just really just clear off, she has long past the point of becoming boring.
This recent call to ‘reinterpret’ obligations to translate documents at a local council level will impact greatly on the ability to obtain legal representation …http://www.telegraph.co.uk/news/politics/9924577/Stop-wasting-millions-translating-leaflets-into-foreign-languages-Eric-Pickles-tells-councils.html
I’m probably hopelessly wrong, but I’ll suggest two other possible (but highly unlikely) options at the domestic level:
1) The Supreme Court endorses and adopts LJ Laws’ doctrine of constitutional statues and holds that the Human Rights Act cannot be the subject of implied repeal. Let’s call this option the Revenge of the Metric Martyrs.
2) The Supreme Court breaks the glass on its s.40(5) “Do Not Break Glass Except In An Emergency” powers. I seem to recall that back in 2009, the then Master of the Rolls positing a question of what might happen if the new Supreme Court, newly detached from Parliament, was asked to review an Act of Parliament that infringed upon a fundamental, constitutional right? Might the Supreme Court find itself needing to go beyond the HRA’s remedies and have its own Marbury v. Madison moment? Who was this wise sage of the future and where is he now? I think we should be told (http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-supreme-court-lecture-dec-2009.pdf).
The strongest point against the actions of Raab (who seems to have decided that because he did corporate law at Linklaters, he has an innate understanding of all other areas of law) and May is that they are actively undermining the constitution. The constitution is predicted upon both Parliament and the Courts respecting the other’s actions within their lawful spheres, but their repeated actions are deliberately designed to undermine the Courts and bring the legislature and executive into direct conflict with the judiciary. Even in the event that the trap is sprung successfully and the UK drops out of the ECHR, do they imagine that there will be no constitutional consequences as a result?
If a person comits a criminal offence and is lightly to be deported after release but may rely on article 8 to remain in England then the time in prison should be used to bargen an agreement for that person should be given a chance to sign a legal document to leave the country with a term cut off sentence ?
I think there is a third outcome. It seems that much of the complaint is that the domestic courts are doing rather too much interpretation of Article 8, by forcing this to the European Court of Human Rights it may be that they hope that the court will decide that deporting foreign criminals in all but the most exceptional circumstances is within the UK’s margin of appreciation. It might be unlikely, but it is possible…
I think this is one of the faults of the HRA is that it’s rather given carte blanche to the domestic courts, civil servants and local officials to read ECHR issues into everything without seeming to give much (if any) consideration of the margin of appreciation (and in the case of local councils to completely go crazy as they did with DPA, RIPA etc). Perhaps there is a hope that in forcing a small number of claims to the European Court, with the express aim of testing those margins and with the political noises the government have made, this might achieve an acceptable balance.
In cases where EU law is relevant, can the effect of the amendment (if enacted) not be bypassed by reliance on the EU Charter or, possibly, other instrument of EU law?
Adam,
As well as removing the right to claim family as a ground to remain, it would allow – require – in fact the HS to deport even where there will be breaches of fair trial, art 6, in the receiving country – including admission of evidence arguably or real risk of being obtained by torture i.e. Othman/Abu Qatada type cases
If this change would only apply to foreign criminals convicted of offences carrying at least a year, then it is not indiscriminate and so could conceivably be found to be proportionate. I wonder whether it would fall within the margin of appreciation.
But proportionality requires more than that – it needs to be sensitive to all the facts/circs (how young is the proposed deportees child? how long have they all been living here/what connections to the UK have they made etc) so although a one-year minimum meets one element of proportionality – that it is not an absolute bar (e.g. diff scenario in Hirst, prisoner voting) I’d be surprised if it allowed for sufficient tailoring to meet the Strasbourg test
Yeah, thinking about it now it would fail to be proportionate because of the Article 8 rights of family members, which is quite apart from the status of the deportee.
The person committing the crime put his famley second or connived with the famley the get here thinking they can comit crime Easley as the do in there own country so I say they are not aloud to rely on article 8
What about the rights of the British citizen victims of these foreign criminals compared to the rights of the foreign criminals British citizen families. If the foreign criminals go on to commit crimes against other British citizens what about their rights? There is a fundamental unfairness about human rights being between the state and the individual, as the state is responsible for protecting everyone not just one person.
There have been cases of judges allowing a foreign criminal to stay on article 8 grounds when they have no contact with their British family. Theresa May’s parliamentary motion proposals suggested that it would have to be proved they were a good parent and dedicated to their family.
That might (at a stretch) be an argument for Article 8, but what about Article 6?
is it not the case that all legislation must be read compatibly with HRA. otherwise a conflict may occur?
Is it not the case that all legislation must be read compatibly with HRA as otherwise a conflict may occur? If so, this effectively bars the attempted opt outs as the Courts may simply treat the whole of the Act as implied.
I agree with your conclusions Adam. I think the amendment is rather clever.
A couple of people have asked whether the HRA could either be impliedly repealed by the amended UK Borders Act, or (conversely) whether the HRA could prevail over the (amended) UK Borders Act. The answer to both questions is “no”. The HRA anticipates the possibility that legislation – including subsequent legislation – may be incompatible with the Convention rights. And it provides for such a conflict to be resolved by means of interpretation, failing which a declaration of incompatibility may be issued. No possibility therefore arises either of the HRA being implied repealed by an ECHR-inconsistent subsequent statute, or of the subsequent statute being rendered invalid by the HRA. As such, I don’t think it matters (for this purpose) that the HRA may (as another commenter has suggested) be a “constitutional statute” in the Thoburn sense.
Perhaps I am missing something here. Section 32(5) tells the Home Secretary that she must make an order with respect to a qualifying foreign criminal. She has no choice unless the exceptions in section 33 apply. Raab would remove her discretion on Convention grounds save in the case of Articles 2 & 3. But presumably the deportation order itself could be challenged on Convention grounds? If so the courts/tribunals would carry on as before but with more convention challenges because the Home Secretary is precluded from considering anything other than Articles 2 & 3 to be exceptional.
But what scope would there be for challenging the deportation order on “Convention grounds” if the Secretary of State is obliged by primary legislation to make a deportation order irrespective of whether non-Art 2/3 rights are implicated? Wouldn’t the possibility of such a challenge be removed by s 6(2) of the HRA?
But wouldn’t that just be an argument of the SSHD having to follow through with primary legislation? As in, SSHD has to follow amendments, so satisfies s.6(2), but then it would be for the court to determine after the fact?
As the Court’s have their own obligations under s.6 too…
Wow. Then it’s completely useless. She seems to ignore valid exceptions now. There will only arguably be more failed cases. Brilliant. Raab is my MP. I’m going to let him have it.
Seems to be the case, see MK (deportation foreign criminal public interest) Gambia [2010] UKUT 281 (IAC) http://www.bailii.org/uk/cases/UKUT/IAC/2010/00281_ukut_iac_2010_mk_gambia.html at paras 22-23: ‘The consequences are set out in s.32(4) and (5) which provide as follows:
“4. For the purpose of s.3(5)(a) of the Immigration Act 1971 (c.77) the deportation of a foreign criminal is conducive to the public good.
5. The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).”
Parliament has therefore provided that if the relevant conditions in s.32(1)-(3) are met, the respondent has no discretion but must, subject to s.33, make a deportation order and that the deportation of the foreign criminal is conducive to the public good. Thus, as it seems to us, legislative policy has occupied what was formerly the field of executive policy.’
All it would seem to do is actually restrict the SSHD’s discretion even further by removing it from consideration.
Not having a Human Rights Act wasn’t incompatible with the Convention before the Act was passed, so it is difficult to see how disapplying some of the rights would be incompatible. Although there might be an argument about discriminating between rights, I guess. Litigants will have to go straight to Strasbourg instead of relying on non existent domestic remedies. All this is fine as far as Raab is concerned, presumably, because from his perspective it enhances the case for leaving the Convention entirely.
I think the effect of the amendment would (in some circumstances) be to require the Home Secretary to deport people in breach of their Convention rights. That seems incompatible to me – i.e. it goes further than not protecting Convention rights; it requires administrative action that is in breach of Convention rights.
But a deportation order can still be challenged to the IAC. Nothing in this amendment would change that. Just because the Home Sec could not have acted differently, does not relieve the courts of their obligations under the Convention. One might say that the Home Secretary has effectively ignored Article 8 triggers for s33 anyway. Doesn’t this just mean there will be more failed cases before the tribunal because she and her successors will not be able to consider those exceptions?
Flayman, if I’ve understood your argument correctly, you’re saying that the deportation order itself may be unlawful (on, e.g., Art 8 grounds) even though the Home Secretary was legally required by the (amended) UK Borders Act to make the order. I agree that a distinction can be drawn between the decision to make the order and the order itself. However, if in these circumstances an order could be found to be unlawful on (e.g.) Art 8 grounds, wouldn’t that presuppose that the (amended) UK Borders Act was requiring the Home Secretary to make an unlawful deportation order? That seems to be such a perverse construction of the Act as not to be “possible”. Surely a court called upon to interpret these provisions would have to conclude that the (amended) UK Borders Act did not merely require but also authorised the Home Secretary to make a (valid) deportation order even if in breach of Convention rights?
Well you would have to consider that the judgement of the Home Office on matters that would qualify as exceptions to deportation will not always accord with the judgement of the tribunals, otherwise an appeal would never succeed. I don’t know whether the issuing of the order (or the order itself) would be regarded as unlawful. If that were true then wouldn’t the Home Office be held to account for the many unsuccessful orders that have been issued to date? Are the tribunals ruling that the deportation orders are unlawful or just that the deportation would be? I think it’s the latter.
You’re correct, the Court’s are not going to change the meaning of the amendment (well if they did….lol), it is not possible to do so, but I do not think that precludes them from declaring it incompatible, that way both SSHD and the Court discharge their duty under s.6?
Has every deportation ordered thus far where the Home Secretary has failed to consider Article 8 exceptions been unlawful, or is it simply that it becomes unlawful when the Home Secretary does not have the discretion to consider the entire Convention?
Section 1 of the convention seems quite sensibly written, the problem is section 2 and the court. Could we not revert back to the setup we had in the 1950′s? Plus isn’t the HRA no different to the dangerous dogs act in its status as an act of parliament?
There seems little point in having a convention and legislation on Human Rights if, as the emerging consensus on this site seems to think, they can be dis-applied at the whim of a government,
Potential dictators and tyrants must be gleefully rubbing their hands.
I’m not sure I agree with the hyperbole here, this isn’t removing the convention rights, it’s saying that if you wish to rely on specific convention rights in specific cases you’ll need to take your case to Strasbourg.
The view of the Government (shared by a lot of the public) is that the balancing act being performed in considering Art 8 (and Art 6) is being misapplied by judges. The House of Commons gave the judges an extremely strong steer in the new Immigration Rules which the courts have (rightly or wrongly) ignored. Therefore it should come as no surprise that parliamentarians have decided to give the judges a steer that they can’t ignore.
The government should be free to test its margin of appreciation and the domestic courts have (thus far) refused to allow them to do this.
It does remove Convention Rights, for the purposes of the Human Rights Act 1998 (HRA) anyway. But do you not see the gambit here though, with allowing individuals to go directly to Strasbourg? The Government may be in violation of Articles 1, 6, 8 and 13. The obvious reaction would be that Strasbourg is interfering again….
The balancing act comes directly from Strasbourg, so it is not really an argument that our domestic courts are missapplying the principle of proportionality, because more often than not, the SSHD wins. So from the outset, that argument turns on its head. Effectively, what some are seeking is (and this amendment makes it obvious) that Article 8 shouldn’t be applied at all, the balancing act which you assert judges are misapplying ceases to exist completely. The judges did not ‘ignore’ the New Rules, they just followed precedent and what Parliament requires them to do under the HRA, Acts trump Rules, and the SSHD knows this. And as for Article 6….because of one man the Government are willing to disapply that too?
Of course the Government has a certain margin of appreciation, but it cannot really argue when Strasbourg do not rule in their favour.
@ flyman, for some reason I can’t reply to your last post. The difference here is that primary legislation requires the SSHD to ignore other Convention Rights, and that is how the Courts will interpret it. I doubt they would or could interpret the amendments as to saying the SSHD should have had regard to other Convention Rights. As Dr Elliot pointed out s.6(2) allows the SSHD to do this. All the Court could do is discharge their own duty under s.6 by issuing a declaration of incompatability, but as most of these cases involve the Immigration Tribunal, a s.4 declaration is not possible, and therefore could go straight to Strasbourg.
Oh, I see. That’s quite an interesting technicality. Thanks for the clarification. This really is a very bad amendment as any Home Secretary would be forced to issue a deportation order without giving due regard to family circumstances. I can imagine there might be cases where the Home Secretary would not want to do that and the only way around it I suppose would be to grant citizenship.
Not a problem, I hope I’m right (open to anyone for corrections of course :)). Yeah it is a very dumb and dangerous move if this were to be implemented, but hey I suppose this may have been a reason why Article 1 and 13 were not incorporated. ;) Yeah it does indeed restrict the HS’s discretion considerably, but I suppose she can always revoke citizenship too at a later date.
So what can we, the public do about this, how can we object? Surely there MUST be something we can do if this inhumane and flagrant denial of Human Rights is NOT to be enacted? jacx
yes, don’t vote tory
Write to your MP, though I expect you’re on the wrong side of public opinion on this topic. Unfortunately the various courts have by application of Article 8 created quasi-citizenship for non-EU migrants with EU family members by significantly reducing the ability for UKBA to deport them. This undermines the ability for the UK to have effective immigration control and many people are rightly upset about this.
If an individual is deported from UK, that is surely it and all about it. If some other country abuses his rights there or puts him on trial in a way that conflicts with his human rights, that is there offence, not ours.
If family life is so important, then surely the British citizen and her children should follow the foreign criminal father aboard. Perhaps they would be going to a country that is not so nice to live in as the UK, but I thought family life was the most important issue here, not where they reside.
Clearly the ECrtHR would rule that any such provision which directly removes the rights afforded under the convention would not be in compliance with the convention. Even if a Court was to follow said primary Act before the HRA, an urgent application to ECrtHR would, I presume, prevent a deportation. Even if one person gets through the hoop in time, the provision would have to be removed. We simply cannot say that we are a country whom is proud of our human rights record and which abides by it’s signature to the convention if at the same time we try to circumvent it with primary law. It’s either leave it, or leave it alone. I’d suggest the latter.
To add to that, there is no saying that Article 2 could not be strengthened to include what Article 8 included when it comes to assessing whether deportation would amount to inhuman or degrading treatment.
Surley there is an element of degrading treatment which would have been engaged had it not been for the Article 8 protection.
(my layman view)
I see what you are thinking here, but the threshold for an Article 3 violation is higher and therefore unlikely to succeed, you only have to look at N v United Kingdom. Having HIV/AIDs and being deported to a country which did not have adequate healthcare does not violate Article 3.
Interesting case, thank you for that. It appears though that this administration is set on a war with strasbourg, it is perhaps that if it was to table such an ammendment, the judgment you refer to was in 2008, maybe it will see a different light. What I presume that case involved was one invdividual going to another place and of course, we are in no position to make an ammendment to that countries health service. However, family life does not just involve one individual it involves others aswell. Maybe if the above did happen, starsbourg would change the threshold.
Even with that, I suppose the view would not change that any primary Act would fall foul of
the convention anyway, perhaps this is why when they talk about removing the HRA, what I say and I am sure anyone who really believes in human rights agrees, the HRA needs to be strengthened not weakened.
You’re welcomed. :) With the threats of leaving the Court/Convention and repealing the HRA, it seems so. Well even though it was a 2008 judgment, its a Grand Chamber one, and yes theoretically Strasbourg’s stance might change, but I doubt it for now at least. I understand your point about not being able to change a health care system, but the thing about that is, whilst someone is under the UK’s jurisdiction (whereever in the world it would now seem) the UK has to safeguard their Convention Rights, like Othman for instance, the UK has no control over the Jordanian judicial system, but we can still fall short of our own international obligations by still removing him. And yes, I do get your point about family life, it is usually the family life of the deportee’s family that is crucial especially in light of Lady Hale in Beoku-Betts.
Yes I agree about the strengthening, and thats one of the problems with the current situation, issues with human rights etc get overshadowed by a lot of rhetoric
Am I right in thinking that if the HRA did not exist, the human rights convention is not part of British law, even if signed by the executive and ratified by parliament? So the Home Secretary would not be breaking British law by deporting someone where they might be tortured even if the ECtHR had forbidden it. She would simply be not complying with a treaty signed by the UK government.
I dislike this Dominic Raab move intensely. There is certainly an extremely autocratic ‘denial of rights’ taking place in British politics today.
I suspect that your article hits the nail on the head in saying that a trap has been set. My more detailed consideration of this is on my blog at:
http://obiterj.blogspot.co.uk/2013/03/getting-rid-of-foreign-criminals.html
I’m just a law student, but is it me or could not this amendment potentially harm victims of human trafficking, who often get incorrectly caught up in the criminal justice system, by only allowing Articles 2 or 3 to be used but not Article 4?
Of course, this only really matters if it were to actually become law in the first place …
Interesting point, Article 4 and 8 may be applicable there, but i could also see arguments of Article 3 and 2 popping up, but that in no way condones these amendments.
Makes you think about the intentions of having our own bill of rights / constitution, what really was the aim then if May and co are so keen to remove us completely from the same protections that a bill of rights would bring. After seeing the recommendations, they soon backed off that one didn’t they.
I think our own constitution with human rights protections would be great, but, the ball then stops with the UK Courts.
There are too many political influences stopping the UK courts (now even more so) from enforcing the convention via the HRA already, let alone anything else. I personally see strasbourg as an independent adjudicator free to make proper decisions without any
interference. I am not saying our Judges and Courts cannot be trusted to do the job, but, they are closer to home.
‘In section 33(2)(a) of the UK Borders Act 2007, for “Convention rights”, substitute “rights under Articles 2 or 3 of the Convention”.
Whereas Thoburn disapplies the doctrine of implied repeal to ‘Constitutional Documents’ such as the HRA, s6 of which makes it unlawful for inter alia, the courts to act inconsistently with convention rights. The above amendment is to be amended as follows:
‘In section 33(2)(a) of the UK Borders Act 2007, for “Convention rights”, substitute “rights under Articles 2 or 3 of the Convention”, without prejudice to other convention rights set out at section 1 and Schedule 1 tHuman Rights Act 1998.
Solved