A human rights reality check for the Home Secretary – Dr Mark Elliott

18 February 2013 by

teresa mayThe Home Secretary, Theresa May, is no stranger to ill-founded outbursts concerning the evils of human rights. Against that background, her recent article in the Mail on Sunday (to which Adam Wager has already drawn attention) does not disappoint. May’s ire is drawn by certain recent judicial decisions in which the deportation of foreign criminals has been ruled unlawful on the ground that it would breach their right to respect for private and family life under Article 8 of the European Convention on Human Rights. Some of these judgments, May contends, flout instructions issued to judges by Parliament about how such cases should be decided.

Those instructions consist of new provisions inserted last year into the Immigration Rules, the intended effect of which was to make it much harder for foreign criminals to resist deportation on Article 8 grounds. The Rules – made by the executive and endorsed by Parliament, but not contained in primary legislation – provide that, where certain criteria are met, “it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”. The assumption appeared to be that this would prevent judges – absent exceptional circumstances – from performing their normal function of determining whether deportation would be a disproportionate interference with the Article 8 right.

Quite properly, the Upper Tribunal has held that while the new Rules can “operate to enhance judicial understanding of the ‘public interest’ side of the [proportionality] scales”, they cannot relieve courts or tribunals of their obligation under the Human Rights Act 1998  to apply Article 8 itself. The Home Secretary has now concluded that Parliament’s wishes need to be enshrined in primary legislation, because judges have not only “ignored” the Rules, but have “got it into their heads that Article 8 … is an absolute, unqualified right”.

Of course, they have in fact done neither of these things – in the case which May appears to single out for particular criticism, the Upper Tribunal saysit is obvious” that Article 8 is a qualified right – and these overblown criticisms invite nothing less than ridicule. At one level, therefore, this episode is simply an illustration of the willingness of certain politicians and some sections of the media to collude in spectacularly ill-informed trashing of human rights law and the judges who administer it.

But however wrong-headed Theresa May’s critique might be, it forms part of a much wider public discourse about the nature and acceptability of human rights in contemporary Britain. This is so because May’s argument, shorn of its baseless analysis of the specific matter that she has in her sights, reduces to the bald propositions that the UK Parliament, not the judiciary, should and does have the ultimate say over matters pertaining to human rights. The former claim – a normative one – is contestable. The latter claim – a factual one – is demonstrably false.

Who calls the shots

Let us begin with the normative claim: that politicians must be permitted to call the shots because anything else would (as May puts it) cause “our democracy to be subverted”. Leaving to one side the fatuousness of May’s surface argument – after all, by deciding cases in accordance with the ECHR, judges are doing precisely what Parliament has instructed via the HRA – her underlying point reveals a more fundamental misconception that impoverishes public discourse about human rights.

That misconception is founded upon the simplistic assumption that any judicial decision which fails to chime with the thinking of the “moral majority” must be illegitimate and undemocratic (a related mindset underpins the Government’s perception of judicial review as an unwelcome irritant that gets in the way of effective administration.) Yet part of the point of human rights law is to operate as a brake upon the power of the majority, so as to afford protection to weaker, marginalised groups whose voices are so often drowned out in the political maelstrom. Nor does it follow that this is undemocratic, provided we are willing to remove the blinkers and acknowledge that democracy might mean something more (and more noble) than supplying the most numerous and powerful groups in society with an unqualified capacity to impose their worldview on everyone else. May’s analysis – and the background assumptions that it makes – thus reveals both an inadequate grasp of the function of human rights law and an unsubtle understanding of the nature of democracy.

Turning to her factual claim – that Parliament not only should, but does, have the last word on such matters – it transpires that May’s grasp of the law is equally dubious. That claim is clearly implicit when she says that primary legislation will be enacted specifying that foreign nationals who commit serious crimes “shall, except in extraordinary circumstances, be deported”, and that it is “inconceivable” that judges would then think themselves “entitled to decide how to balance the foreigner’s right to family life against our nation’s right to protect itself”. But what would actually happen if such legislation were enacted?

Under the HRA, courts and tribunals would remain obliged (so far as possible) to interpret the new Act consistently with Article 8. One possibility, therefore, is that the judiciary would conclude that the new Act, once interpreted in that way, did not permit deportation in breach of Article 8. If such a construction were not possible, then national courts would be unable to stand in the way of “exceptional circumstances” deportations that contravened Article 8. But, in that scenario, the new Act would very likely be the subject of a declaration of incompatibility under the HRA and, eventually, an adverse judgment in the European Court of Human Rights.

The final word

So, as a matter of law, does Parliament really have the final word? It is ultimately free to do as it pleases as a matter of national law (at least for as long as the notion of parliamentary sovereignty persists). But such an analysis, concerned exclusively with the domestic position, is unduly parochial. The legal reality is that so long as the UK remains a party to the ECHR, it is bound by the Convention rights and by the judgments of the Strasbourg Court.

There is, of course, room for disagreement about the precise meaning of those rights. As Roger Masterman has recently pointed out, domestic courts do – and need – not inevitably yield to Strasbourg’s interpretation of those rights. Equally, the margin of appreciation doctrine means that national governments and legislatures have some latitude. It would, therefore, be entirely possible for the UK Parliament to legislate in relation to Article 8 in a way that exploited the margin of appreciation. But legislation requiring judges to decide cases in a way that would exceed that margin would be another matter.

Reality check

To those for whom strong judicial protection of fundamental rights is a cause for celebration, one of the HRA’s great strengths is that it takes norms that are binding in international law and places them front-and-centre in the domestic sphere. In doing so, it puts under pressure the orthodox view that Parliament can do exactly as it pleases – including by removing or curtailing basic rights.

Of course, the Home Secretary and her colleagues are free to argue in favour of repealing the HRA and withdrawal from the ECHR, so as to conjure back into existence a golden age of true sovereignty in which the odiousness of parliamentary legislation is legally unchecked. But unless they are willing to make that argument – and pay the political and reputational price for doing so – it is time that they took a reality check and acknowledged the legal constraints that flow from Britain’s international obligations, for which the HRA is simply (but importantly) the conduit. It would be better still if such politicians were willing to recognise that human rights law, rather than being something with which we are (at least for the time being) merely stuck, is a valuable and far from undemocratic counterbalance to the majoritarian political process. Perhaps, however, that is asking too much.

Mark Elliott is Reader in Public Law at the University of Cambridge. He can be found on Twitter as @DrMarkElliott.

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  1. John D says:

    Under our uncodified UK constitution, “No Parliament can bind it’s successors”. This means – in theory, at least – that any new Parliament can amend or even abolish any or all existing legislation if it wishes to do so. The judiciary cannot stop this from happening and would have to follow the convention of parliamentary sovereignty guiding their existing and future judgements. If the government wanted to, they could repeal the HRA totally, withdraw from the ECHR and derogate from the EU Charter – if it wanted to. I suspect they would be extremely unlikely to do so as to do so could potentially be highly embarrassing for any government.
    Nevertheless, there is almost nothing to stop a political party with a majority in the House of Commons from passing any legislation they wish on any topic they wish. The judiciary derive their legitimacy from following existing constitutional conventions. If they are encouraged to ignore these conventions and actually do ignore them, they will end up by undermining their own legitimacy and their own valuable role in providing relatively impartial rules to others to follow where human rights are concerned. Leave well enough alone!

  2. […] The first is that the Home Secretary doesn’t understand how the law works. That she doesn’t know that what she seemed to be expecting is impossible. The Human Rights Act and the UK’s international obligations are going to take precedence over guidance issued by Parliament which is not embodied in statute. So, of course, when the circumstances of a particular case require it, judges are going to depart from the wishes of Parliament and follow legal precedent. […]

  3. Mark Elliott says:

    Amy, thanks for your comments on my post. I don’t think that the debate about the mirror principle, to which you refer, is strictly relevant to the point I am making. How the meaning of the Convention is to be determined is one question: and I am comfortable with the idea that interpretation of Convention rights as they apply in the UK is a co-operative endeavour shared by domestic courts and the European Court of Human Rights.

    However, Theresa May’s intervention raises a different point, in that she appears to be suggesting that Parliament can require domestic courts to place a particular interpretation upon a Convention right (or to apply it in a particular way) whether or not that coincides with the judicial interpretation. You are, of course, absolutely right that Parliament, under the HRA, is free to legislate in such a way. But I fail to see how that point is anything other than “parochial” given that the legislative sovereignty of the UK Parliament is incapable of displacing the international obligations that are binding upon the UK as a party to the Convention.

    In summary, then, I agree with the points in the final paragraph of your response: (a) domestic courts need not necessarily slavishly adhere to Strasbourg jurisprudence (as Roger Masterman’s recent excellent piece on the UK Constitutional Law Blog shows), and (b) the HRA does, as you say, leave the last word with Parliament. I do not, however, think that my argument is inconsistent with your point (a), and I am not convinced that your point (b), technically correct though it is, does justice to the complexity of the position.

  4. Amy Williams says:

    Thank you for this important piece.

    I am concerned again (following Adam’s post on Sunday – http://ukhumanrightsblog.com/2013/02/17/why-the-home-secretarys-attacks-on-human-rights-judges-is-like-a-bakewell-tart) that the mechanisms contained within the Human Rights Act (HRA), which attempt to straddle the strong judicial human rights protection vs parliamentary sovereignty debate are being overlooked.

    You dismiss the ‘parliament is free to do as it pleases as a matter of national law’ argument as “unduly parochial”. But on this analysis, the section 3/4 machinery in the HRA is rendered meaningless. You seem to be interpreting section 2 as a wholesale incorporation of the case law of the European Court along with the rights – presumably what you mean by “[the HRA] takes norms that are binding in international law and places them front-and-centre in the domestic sphere.” This interpretation has been strongly called into question by, among others, one of the Act’s principal authors Lord Irvine (see http://www.biicl.org/files/5786_lord_irvine_convention_rights.pdf)

    Whether or not it is desirable that parliament should be able to ride roughshod over Article 8 compliance deportation decisions (heavily influenced by the Strasbourg case law) is another question. But at the very least it is surely necessary to acknowledge that the HRA was a) intended to allow the courts to develop their own interpretations of the rights therein, albeit ‘taking into account’ Strasbourg jurisprudence and b) carefully designed such that the last word is in fact left with parliament. To ignore these details arguably sees advocates of the HRA unwittingly making its opponents case for them.

  5. Andarrios says:

    Mark Elliot’s comments, except for one detail, conduce to better understanding of these issues. Like others who also perceive themselves as of a minority, I particularly welcome his chief points.

    The unhappy detail, in my opinion, is his resort to the term ‘democracy.’ No opponent of tyranny, of arbitrary and violent oppression, of unchecked cruelty can look on the essence of that term ‘democracy’ with much less fear and disgust than on its near kin -autocracy, plutocracy, aristocracy…etc. We do not possess, and might never possess, a single term that engrosses the highly evolved and complex tissue of different powers and tensions between those powers, that we hold to be the sine qua non of enlightened, or even of acceptable, government. Whether or not it is needful to pretend to have a logical, exhaustive (and hierarchical) theory of sovereignty, and by extension of judicial powers, I leave to sociologists or psychotherapists, but on the ground in Britain we do not have such a system. Our reality is divided sovereignty, incompletely rationalized, incompletely justified.

    The vitality and grip of these Human Rights reports/blogs, arises, as I see it, in how they illuminate questions, responses to which must accept a duty toward competing claims. At a casual moment a former Master of the Rolls confided to me that he ‘wrote his decisions with the losing party in mind.’ Five plus decades ago, Judge Learned Hand in a farewell address at Harvard Law School, gratefully recalled his own teachers there thus: ‘they gave no quarter to absolutes and asked none.’

  6. I can’t help that every time May (or, to be fairer to her than she deserves, any Home Secretary) makes comments like this they are trying to turn public opinion against judges and use this to extend the power of the legislature over the courts. May isn’t the first government figure in recent years to launch such an outburst, I doubt she’ll be the last.

  7. Great article, thank you, Dr Elliott. I particularly liked the aside “(at least for as long as the notion of parliamentary sovereignty persists)”. I don’t think it’s appreciated enough that parliamentary sovereignty is a common law concept, and what the judges give, the judges can take away. Not that I’m looking for tyrants in black robes (to use the current US hyperbole), but I find it comforting to imagine that the ultimate guardians of human rights are far removed from the depredations and vagaries of populism and party politics. Of course, any explicit move away from the idea of parliamentary sovereignty would probably require a radical overhaul of (or at least heavy tinkering with) the constitutional settlement, but maybe that would be just as well.

    Predictably, some barminess in the comments, though.

    Philip McNeill:

    “She has the support of the majority of the population”

    Did you read the article? Part of the point of human rights is to protect the interests of marginalised minorities (such as, say, immigrants and offenders) from the tyranny of the majority.

    David Britten:

    “I’m sorry, but criminals should not be afforded human rights that deny the rights of those who do not break the law.”

    Are criminals not humans, then? Or are human rights really only for some humans? Should they properly be called “the rights of those David Britten thinks virtuous enough”?

  8. to gain the right to remain protected by article 8 of the human rights act is a blessing and does not interfere or intrude on the rights and wrongs of judgment on a crime made by the same person seeking to benefit from the basic right to remain with family ,Theresa May has gone too far back into Victorian times ,when deportation of children was a crime based punishment,God forbid that ever to return.

  9. Stu says:

    She wants her way with human rights because it what British nationals that are refused spouse visas are citing during appeals. That’s her actual agenda, destroy the family.

  10. John D says:

    Let those among us who are without blemish cast the first stone…….Anyone?

  11. David Britten says:

    I’m sorry, but criminals should not be afforded human rights that deny the rights of those who do not break the law. No foreign person who breaks the law of our land should be permitted to remain here, no matter the circumstances in their country of origin or the circumstances pertaining to their period of residence in this country. Judges need to be taught the simple difference between right and wrong. Unfortunately, we will never find the wisdom of solomon in a British court. Our judges are simply too dense.

    1. Michel Mahon says:

      Criminals are still humans, hence they are entitled to rights. If they are not allowed these rights does that mean they have also given up their rights to not suffer torture? Or their right to life? Try and think further than just criminals are bad, we already know that. Do we however have the right to violate the rights of criminals? More importantly should we? If they violate a human right and then we violate one of theirs what have we proven? Nothing.

      1. David Britten says:

        I’m tired of the Human Rights legislation that seems to preserve the rights of criminals over their victims. It is absurd to suggest that the torture of a criminal could be a potential consequence; this is, after all, a civilised society. We do need to define what constitutes a criminal, since speeding is a criminal offense and to deny human rights to such an offender would be absurd. However, there are crimes that should automatically deny certain (not all) rights, such as the right to vote for example. I will not waver on the view that foreign criminals should be deported immediately. I fail to see why the British tax payer should be saddled with the huge cost of incarcerating such people. The bottom line is this, any human rights that are appropriate should first be extended to the victims of crime before any judgement is made regarding the rights of the criminal and, as in all things, such judgements should be tempered with civilised consideration.

        1. Michel Mahon says:

          What constitutes a foreign criminal? How long do they have to live here for? Is being born here enough or not? More importantly why should we send anyone to a country where they may receive torture or death? You may not want to pay for criminals that come from over seas, I don’t want to have to pay for ANY criminals however that is what some of tax goes towards. Just because you don’t want to pay for their incarceration doesn’t mean you should look the other way as they are deported to somewhere with quite possibly a less civilised legal system that could indeed cause them harm. As for your comment that torture is not a reasonable potential consequence because of how civilised we are I would like to remind you that America is considered to be a civilised country as well.

  12. Philip McNeill says:

    I agree that May will have difficulty in changing this mess. But she has to be encouraged to try. She has the support of the majority of the population and not the cerebral liberals who have no knowledge of life and no understanding of the criminal mind. True they have been to college and read the books been to lectures and wrote the papers. But never lived the life. Some people believe it or not are on this planet just to take the piss. So I’ll not be shedding any tears for this guy, or any other ciminal who Mrs May wishes to deport and wants the right to family life because he has given some woman a few children. He is welcome to take them with him..

  13. Laila Namdarkhan says:

    Fine article. The government needs to make up its mind they cannot have HR both ways. For the greater good we must have the EHR!

  14. John D says:

    I agree with much that Mark Elliott says above but I believe he needs to apply more political, rather than juridicial, analysis to what is going on. May – and others in the Conservative Party – are engaged in a tactical (rather than strategic) approach to mollify Backwoodsmen Tories.
    On the one hand, they are trying to appeal to more liberal voters through the passage of same-sex marriage legislation, while – at the same time – appealing to the anti-European instincts of their own backbenchers and ordinary Daily Mail reading party supporters.
    May’s outbursts are widely perceived as mere “stuff and nonsense” by most informed people.
    If the Tories really want the UK to derogate from the ECHR there is nothing to stop them from presenting an appropriate Bill before the House of Commons and securing its passage through there and the House of Lords; nothing, that is except the political embarrassment of being the first and only political party in British history to initiate such a measure. Nothing, that is except the undoubted hailstorm of opposition they would face in both parliamentary houses. Nothing, that is except the rank failure of Britain ever again being able to pontificate on the human rights weaknesses and abuses carried out under other regimes.
    I am relatively sanguine about the May outbursts, even if opposition politicans sometimes join in with them. The truth is that these outbursts are simply part of the anti-European agenda of the present-day Tories. The real problem be if the Tories include a commitment to rescind the ECHR, to leave the EU (and its own Human Rights Charter) and to abolish the UK HRA.
    If they were to win an outright victory at the next general election with these pledges contained within their party election manifesto, then I would be genuinely worried.
    In the mean time, the judiciary will just have to be broad-shouldered enough to carry on under the foolish invectives of May and her ilk.
    Perhaps a “Methinks the lady doth protest too much” campaign could clip her wings?

  15. Varun Kesar says:

    Thanks for this Mark, insightful and cutting.

    But I am highly concerned at Ms May misunderstanding of the law, surely her officials would have advised her that she has fundamentally misunderstood how the HRA works?

    And, at the risk of sounding like a conspiracy theorist, to what extent do you think she is *deliberately* spreading misinformation in order to lay the (political) groundwork for the repealing of the HRA?

  16. Departmental policy cannot overrule statute/treaty obligations.

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