Article 8 and a half

10 June 2012 by

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.

It is important to remember that the courts already know that certain foreign criminals are liable to automatically be deported, and the courts have hardly ignored this.

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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  1. ObiterJ says:

    Unfortunately, the original media information about this matter was very misleading. In fact, the government are revising Immigration Rules. They make these rules under executive power to control immigration. The rules are not usually voted on in Parliament. However,in this instance and as an exception, the government are seeking a vote – presumably to send out a strong message to the judiciary. The revised rules will set out the points to be considered under Article 8.

    I have done a blog post on this – with various links to officially produced materail.

  2. Michael says:

    You say:-

    But surely the Home Secretary will not be asking Parliament to declare something that already is.

    She may be doing just that.

    Whether it happens in a significant number of cases or not, the cases which become high profile media stories are those in which the courts appear to make judgments based wholly on the provisions of 8(1).

    Once it is proven that an offender has a ‘family life’ the judges should then ask whether they do pose a risk to public safety etc. Perhaps the Home Secretary intends only to remind them of their obligation to consider 8(2).

  3. In Scoppola v Italy (No3) the ECtHR appears not to have been influenced by the HoC motion on prisoners votes. By the same token I cannot see the domestic courts being influenced either.

  4. Sam Barnett-Cormack says:

    Simon Carne, IANAL or anything, but from my skimmed reading, the “in a democratic society” phrase has been interpreted as free-standing by the Strasbourg court, as one of three legs that any limitation of the right must satisfy – in accordance with law, for one of the listed purposes, and “as required in a democratic society”. In the 1999 case about homosexuals in the military, it was interpreted not as a deferral to legislature or popular opinion, but as a protection of minorities from majority opinion. It would seem that, in ECHR jurisprudence, the requirements of democracy are not that the majority rules, but that minorities are protected.

    This is consistent with several governmental theories around the idea of democracy. It’s not about majority rule, but about the protection of people – both the majority being protected from powerful minorities (which is where voting is supposed to come in), but the protection of minorities from the majority. It is, in a sense, about guarding against ochlocracy.

    1. Simon Carne says:

      (I am not a lawyer either.) You make a nice point (and introduce me to a new word, “ochlocracy” – thank you), but in one sense, it’s an obvious point, ie that human rights are often about protecting minorities, or even individuals, from the actions of the majority. So the majority shouldn’t always rule, but in principle I’d like to see them have some “input” (which is how I originally put it above).

      1. Sam Barnett-Cormack says:

        I believe that democratic input of that sort, as in via the legislature, comes through the “in accordance with law” leg of the test. Limitations of the right must be supported by national law. As long as a country has a democratic legislature, that insures the input of democratically elected representatives, presumably representing the views of the electorate (though that’s a problematic presumption in other ways). The valid reasons is a separate limit, that that legal basis for the limitation must satisfy both in general and in individual cases, and the “as required in a democratic society” is a third leg, independent of the other two.

  5. Angry Grandparent says:

    The continued dismantlement of the ECHR is running full steam ahead under the Tories.

    The government has been ignoring article 8 in other areas of the law, notably family law where children are removed for the basest of reasons and any time an article 8 citation is used to return children, the courts have traditionally ignored it.

    Britain should uphold its contractual obligations to those it deems worthy of a British citizenship, that to take taxes and contributions further reinforces the UK’s need to protect its own citizens and uphold the laws in their favour however politically inconvenient it may be is paramount.

    Justice cannot, ever be politically expedient, either we are getting justice or we are getting injustice, there is no grey area here and it seems that the scales are tilted firmly in the realms of injustice.

  6. Cyan says:

    @ r1xlx: I’m not sure what you being white, English or even a tax payer has to do with anything, surely you’re not implying that you are entitled to more/better protection because of this, are you?

    Britain ‘can’ ignore Strasbourg, and one cannot stress how much misconception is placed on this court, even our national courts are not bound by Strasbourg jurisprudence. This is exemplified in Horncastle and Al-Khawaja, furthermore, when lower courts are faced with conflicting judgements for example, Marper, Moses LJ in GC&S noted that ‘this court is bound by the decision of the House of Lords.’ It is just that Britain, and the courts do not ignore Strasbourg on a regular basis.

    Your third sentence is confusing, is it in relation to the second one? As in foreign criminals? Because if so, technically if they are sent back at the border, they have not committed a crime in the UK, unless entered here illegally or whatnot.

    And in regards to the Afghan hijackers, they could not be sent back because of Article 3 initially, but the government tried to get rid of them via a shortcut and in the case of S and others Sullivan J commented that the judgment did not concern deterring hijacking ‘but whether the executive should be required to take such action within the law as laid down by Parliament and applied by the courts.’

    Have a nice day :)

  7. r1xlx says:

    As I’m White, English and a Tax payer I don’t have any Human Rights in UK and have taken my case to Strasbourg. But I hav e to ask why Britain cannot just deport these criminals like France and Germany can do?
    Or for that matter why cannot we stop them at the border/airport and just send them back whence they came?
    Particularly those Afghans who hijacked a plane to get here?

    1. Jay Sian says:

      You have the right to seek employment in the UK, you have the right to marry anyone of your choosing (assuming they’ll have you- which is debatable in light of your comment), you have the right to remain in this country, you have the right to claim benefits should you lose your job. Shall I go on? You are far less likely to be stopped by the police for no apparent reason, you are far less likely to be discriminated against when applying for a job, you are far less likely to face racial abuse or be spat on. I think you get the point now.

      It seems that you are so use to the benefits of being white and English that you now take them for granted.

      1. James Lawson says:

        I understand where r1xix is coming from even if Jay Sian does not. The individual is possessed of absolutely no rights at all unless he has the ability to vindicate them. Who, in a minimum-waged casualised employment environment in the United Kingdom is going to place his home at risk by praying in aid of the Human Rights Act before the Higher Courts who are under no obligation to apply the Jurisprudence of the ECtHR other than being ‘guided by it’ who may or may not apply a broad or narrow interpretation of a statutory provision in deciding whether or not his rights are ‘engaged’ or make an exceedingly rare declaration of incompatibility which makes absolutely do difference at all the the law in question until Parliament may or may not decide to alter it prospectively which helps everyone except the applicant who has no right to an effective remedy under Article 13 because Parliament decided it was not going to incorporate it under section 1 HRA 1998. Like the right to remain silent, you can exercise it, but certain consequences will obtain should you be foolish enough to exercise it. With Human Rights, should the individual decide to pursue them, he will invariably face bankruptcy and homeless at the price to be paid for his foolishness!

        I think you get the point now!

  8. Deano says:

    ‘That much was made clear in the Coalition agreement ‘, because this government has never gone against what it during the last election?I beg to differ.

  9. Chris says:

    There has been more than enough disregard for the rights of UK citizens starting with the magna carta & bill of rights which appear irrelevant in today’s world without the politicians attempting to influence the Judges

  10. Rob Ward says:

    i cant help but feel this sets a bad precedent, today it’s foreign criminals tomorrow it will be all of our article 8 rights removed, it is a dangerous government that wants to erode or be rid of Human rights and i say that as a tory voter.

    any attempt to alter, erode, or remove any Human Right be it for foreign criminals or not is extremely dangerous what other Human Rights are to be eroded next after all in governments minds if they do it to one of the articles what does it matter if they erode or remove a few others that get in the way of a government abusing our Civil and Human rights.

  11. dinealdesko says:

    There are several constitutional issues here, but perhaps the most important is: does a Parliamentary vote, of itself, raise the legal status of a guidance document? It is enough to make it a legally relevant consideration? In any event, this is canny politics:

    – if the judges don’t play ball, the Home Office / UKBA can blame the judiciary. Remember, this is not beyond their way of thinking – see Lumba in the Supreme Court, where policy officials were caught out deploying precisely such a tactic

    – if the judges do play ball, then it’ll be Theresa May 1 – Rule of Law nil (recall the Evans case, about changing legal aid to stop embarrassing public interest challenges – chipping away at the rule of law is not something ministers lose sleep over)

    – if some judges do play ball and others don’t, we’ll be in for a year or two of litigation trying to clarify the situation. I expect some immigration judges will go along with it, but others won’t – depending how their understanding of constitutional law in the UK operates.

  12. Simon Carne says:

    I am intrigued by the inclusion of the words “in a democratic society” in the exception clause of Article 8. Do those words imply that some or all of the various exceptions (eg economic well-being, protection of morals, rights and freedoms of others) might be decided with some democratic input?

    1. GaryMclachlan says:

      No – the Court have made it clear (and did so in Tyrer v UK in 1976) that the requirement of democracy does not mean allowing tyranny by majority. Human Rights in Europe rest on a democratic system, but do not rely on a democratic mandate.

      1. Simon Carne says:

        Tyrer was, of course, about an appalling physical punishment and decided under Article 3 which is, thank goodness, absolute. But we are talking today about Article 8, which is qualified and specifically qualified by reference to “a democratic society”.

        If we are saying that the determination of (to take just one example) “economic well-being” is to be decided by judges and only by judges, one can see why voices are raised in concern.

        The judges could, of course, listen to expert evidence (economic evidence in the example I cite), but if they can listen to economists before reaching a decision, why shouldn’t they listen to parliament?

    2. Sam Barnett-Cormack says:

      Gah, didn’t notice the reply link… there’s a comment from me in response to this further down. Just so you know.

  13. James Lawson says:

    Perhaps her legal advice originates from the same source in the Home Office who calculated the limitation period in respect of Abu Qatada’s appeal?

    1. Jay Sian says:

      Perhaps you want to make sure you get your facts right: it was the Foreign Office who provided that advice on Qatda- not the Home Office.

      1. James Lawson says:

        On the assumption that your comment is accurate, then it reinforces the point being made rather than weakens it. If the Home Office has to rely on the Foreign Office for its legal advice then it speaks volumes about the quality of Home Office lawyers who scrutinised it and advised the Minister.

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