In an editorial yesterday, the Telegraph argued that the Human Rights Act has become “a means of undermining public safety, not of helping to protect it.” The newspaper claims that last year 200 foreign convicts avoided deportation by citing the right to family life”, which is “an absurd state of affairs”.
It is not clear where the figure of 200 arises from, as failed deportations are not listed in the official Home Office statistics. Nonetheless, failed deportation cases involving the right to family life do regularly arise, and the Telegraph has enlisted some fairly powerful “campaigners for change”, including former shadow home secretary David Davis and former home secretary Jacqui Smith who says “Recent judgments have been completely on the wrong side of common sense and public opinion“.
Unfortunately, this difficult but emotive debate is often poorly reported. We have highlighted two such cases, relating to Learco Chindamo, in which the Telegraph wrongly attributed his failed deportation to human rights, and Aso Mohammed Ibrahim, who killed a 12-year-old girl in a hit and run incident. The court of appeal has recently refused to reconsider Ibrahim’s case.
The Telegraph argues, in a similar vein to the current controversy over privacy injunctions, that judges are responsible for getting the balance wrong:
Unfortunately, the European Court of Human Rights in Strasbourg has turned it into something that must be respected, regardless of whether doing so will damage national security or endanger the law-abiding. And our own judges have not only followed this interpretation, but expanded it still further.
For a summary of the current law on balancing family rights with public safety, see Suzanne Lambert’s post on the Aso Mohammed Ibrahim case, as well as the more recent case of ZH (Tanzania) which emphasised the rights of children in such cases.
The campaign will have significant support amongst the general public and politicians. David Cameron expressed “great anger” in relation to the Ibrahim case; another example of his often visceral responses to human rights decisions. It may be that the actual effect of article 8 has been overblown. But a key question for the Bill of Rights commission is how much leeway (in human rights language, “margin of appreciation”) they will have to alter the balance.
For example, would it be possible to insert an equivalent to the current section 12 of the Human Rights Act, which mandates courts to pay “special regard” to freedom of expression in public interest journalistic or artistic censorship cases? Perhaps this could read: “Special regard should be paid to considerations of national security and public safety when considering the deportation of a convicted criminal whose article 8 rights will potentially be breached by that deportation“.
But is the Strasbourg case law simply too clear to alter the balance to the significant extent that the campaigners would like? It is of note that many of the deportation cases involve children, and our own supreme court has made very clear that their rights are primary in deportation cases. Would courts be willing to erode those rights in the name of public safety? The Telegraph says we should not be too concerned by the European reaction:
[change could be achieved] by passing primary legislation in Parliament. Strasbourg might disagree, but in practice, it has no power to enforce its will. True, Britain could, in theory, be expelled from the Council of Europe – but this is not a threat that needs to worry anyone.
Perhaps. We will consider the legal position in more detail soon. But in the meantime, a good starting point in this debate is academic Mark Elliott’s excellent post on the new UK Constitutional Law Group blog. His view is essentially (as I have also argued) that the commission will have very little wriggle room since it cannot consider withdrawal from the European Convention. He concludes:
The bottom line is very simple. For as long as the United Kingdom is a party to the ECHR, its freedom as a matter of (international) law is constrained by that instrument and by the way in which the Strasbourg Court interprets it. None of this is to suggest that either the Strasbourg Court or the Human Rights Act is perfect.. . However, the suggestion which is (at least implicitly) made by those HRA-sceptics who advocate a British Bill of Rights—that the adoption of such an instrument would open up an opportunity for rebalancing rights and ‘responsibilities’, or for greater trading off of individuals’ rights against those of the ‘law-abiding majority’—is inaccurate. Significant latitude could be created only by withdrawing from the ECHR
It may be that no reform will satisfy those who wish that all foreign criminals could be deported without a second thought. But given the public support which will no doubt attach to the Telegraph campaign, it will be interesting to see whether, practically speaking, much can be done to shift the balance.
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