Tomorrow, the Home Secretary will announce to Parliament plans to give judges guidance on how to interpret Article 8 ECHR (the right to private and family life) in foreign criminal deportation cases. There has been already significant speculation as to whether the long-heralded changes will make much or even any difference.
It is not yet clear whether the Home Secretary intends to restrict the use of Article 8 in foreign deportation cases completely, as suggested here, or rather attempt to tweak the way it is applied by judges. The latter is more likely.
We will report in full when the proposals are revealed. But in the meantime, a quick comment on the slightly odd coverage of the story in the press. For example, the BBC reports:
But Mrs May said the UK was “entitled” to set out its views on the subject and to make clear its belief that all aspects of Article 8 – including when other considerations could take precedence – should be taken into account in rulings. She confirmed that the government will draft new guidelines, for approval by Parliament, emphasising that the right to a family life is not sacrosanct and can be overridden.
And in the Guardian:
The home secretary is to ask MPs to pass a motion declaring that the right to a family life – enshrined in Article 8 of the European convention on human rights – is not absolute.
But! As Article 8 aficionados are already shouting over the din, Article 8 is not absolute. It never has been. It is, famously, a ‘qualified’ right that can be overridden in a long list of potential scenarios. To quote the much maligned article, the right to private and family life cannot be overridden:
except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others
So declaring that Article 8 is “is not absolute” is a bit like declaring that the grass “is green” or the sea “is blue”. It is strange way to present the changes.
But surely the Home Secretary will not be asking Parliament to declare something that already is. Rather, the Home Secretary will be asking Parliament to declare how it thinks Article 8 should be interpreted. In other words, how the delicate balancing exercise, which judges carry out every day in tribunals and courts, is to be carried out.
Human rights lawyers have already been lining up to say it won’t work. See The Guardian (Theresa May cannot dictate to judges on human rights cases, lawyers warn) and Free Movement (Can Article 8 be ‘overridden’?).
They may have a point. It is open to Parliament to amend the Human Rights Act 1998 in order to alter how the European Convention on Human Rights is incorporated into UK law. For example, the Act itself did not incorporate the entire ECHR, and Section 12 already attempts to supercharge the right to freedom of expression in cases which relate to “journalistic, literary or artistic material“.
But it is hard to see how a Parliamentary statement will affect very much at all. It is hard to comment without seeing the proposals, but perhaps the most the Home Secretary can hope for without amending the HRA is that courts will, when attempting to pick between the recent confusing case law in relation to foreign deportations (see this versus this), pay attention to what Parliament thinks about the issue.
More likely, the courts will pay little or no attention. As has been repeatedly pointed out during the long, bitter and somewhat tiresome debate over the Human Rights Act, Parliament has expressly asked judges, through the HRA, to interpret UK laws and the decisions of public officials and to say whether they are compatible with the ECHR. That task was set through primary legislation, and that primary legislation therefore expresses the clear “intention” of Parliament in the legal sense.
The clear intention is that judges, not Parliament, are the arbiters of when rights have been breached. If you think about it, it makes sense: human rights are there to protect individuals from arbitrary interference into their lives by the state. It would be strange if the state got to be the judge in its own case.
If Parliament wants to change way judges are interpreting the ECHR, surely it needs to do so through primary legislation, particularly given this context in which the life and liberty of individuals are at stake.
It may be that in this instance all that will be achieved is that the Home Secretary will pick, and lose, a fight with the judiciary, but then use that loss as a means to justify some tougher tactics. As the press have also been reporting, the Home Secretary has said:
We expect the courts to take heed, but if they don’t we will return with new measures which include the option of primary legislation.
But primary legislation to alter the Article 8 balance – Article 8 and a half – will surely mean amending the Human Rights Act. And that won’t happen in this Coalition government if doing so means diminishing the role of the ECHR. That much was made clear in the Coalition agreement and the Bill of Rights Commission’s terms of reference; investigating the creation of a bill of rights which “incorporates and builds on all our obligations” under the ECHR.
Ultimately, the proposals may be more important politically than legally. The test of their success in courts will be whether judges pay any declaration more than lip service in the coming months and years. Another crucial test is a backwards-looking one. Simply, if the changes had been made before the most controversial cases the Home Secretary has complained about (leaving aside Maya the cat), would the outcome of those cases have been any different?
We shall see.
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