Calm Down Dears ...!

The Political Party Conference season usually brings a mix of the serious and the trivial and some of the speeches, albeit about topics of concern, sometimes offer a degree of entertainment.  It was Home Secretary Theresa May (full speech) who claimed that a cat had prevented a deportation.  Kenneth Clarke, Lord Chancellor and Secretary of State for Justice, referred to this as making "laughable and childlike comments" - The Independent. 

Theresa May, as one of the principal Secretaries of State, normally has to be taken seriously.  She said:

We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat.

This is why I remain of the view that the Human Rights Act needs to go. The Government’s Commission is looking at a British Bill of Rights. And I can today announce that we will change the immigration rules to ensure that the misinterpretation of Article Eight of the ECHR – the right to a family life – no longer prevents the deportation of people who shouldn’t be here.

She went on
to refer to Article 8 of the European Convention on Human Rights - (Right to respect for private and family life) and then said:

The right to a family life is not an absolute right, and it must not be used to drive a coach and horses through our immigration system.

The meaning of Article Eight should no longer be perverted. So I will write it into our immigration rules that when foreign nationals are convicted of a criminal offence or breach our immigration laws: when they should be removed, they will be removed.

It is a relatively easy matter for government to amend "immigration rules."  The matter was referred to by the House of Lords in Olelola v Home Secretary [2009] UKHL 25 where Lord Hoffmann said - at para.6:

"The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as how the Crown proposes to exercises its executive power to control immigration."

The cat was not, as it turned out, of any major relevance to the decision made by the Immigration Judges.  This matter is well analysed by the UK Human Rights Blog and it is not necessary to repeat their arguments - "Cat had nothing to do with failure to deport man" (AdamWagner) - "The lessons of shaggy dogs and Catgate" (Adam Wagner) - "The Cat Paradox" (Rosalind English) and "What the first #catgate appeal judgment actually says" (Adam Wagner).

So, having put the cat back in the bag, in the spirit of Michael Winner's phrase "Calm Down Dears", there have been a number of more sensible developments which are worth noting.

1. The Ministry of Justice webpage regarding the Commission on a British Bill of Rights tells us that we have until 11th November to make any comments to the Commission regarding their Discussion Paper.   Here is an opportunity to have your say.

2. The Ministry of Justice published a very thorough analysis entitled "Responding to Human Rights Judgments."   Those who are serious about getting behind the media headlines would do well to read this paper which considers the year August 2010 to August 2011.    Significant human rights judgments involving the UK for that year are considered in some detail from pages 11 to 25.  The cases cover a considerable range of subject matter.  Since 2nd October 2000 when the Human Rights Act 1998 came into force, there have been 27 declarations of incompatibility of which 19 became final either in whole or in part.  8 were overturned on appeal.  Of the 19 declarations, 12 have been remedied by later primary legislation.  2 have been corrected by remedial orders under section 10 of the Human Rights Act 1998.  4 of the declarations related to matters already remedied and 1 matter remained under consideration.

3. The European Court of Human Rights has published - in pie chart form - an analysis of cases on a per country basis - Statistics on Judgments by State.  47 States are signatories to the Convention: the States obviously vary a great deal in terms of geographical size, population and economic wealth etc.   A key fact is that only 4% of the total applications to the Court actually get to final judgment.  (The figure for applications from the UK is 3%).  Many cases are settled before the need for judgment.  This fact adds credence to the view of the Commission for a British Bill of Rights that a better filter mechanism is required to weed out weak applications at an early stage - (Letter to Ministers on reform of the court).  Without such a mechanism, the court is likely to sink under the weight of applications.

Inevitably, many of the cases reaching final judgment at Strasbourg relate to matters of major importance and, sometimes, of intense political sensitivity.  Overall, the UK has a good record of compliance with judgments though, in some areas, there has been reluctance to amend the law.  The classic example of this is the thorny issue of prisoner voting - discussed at page 18 of the Responding to Human Rights Judgments document.  Furthermore, compliance can sometimes be minimalistic - i.e. do the least necessary to comply.   A possible example is Interception of Communications which, under the terms of the Regulation of Investigatory Powers Act 2000, can be extensive even though the procedure for interception is "prescribed by law."  The history of RIPA 2000 can be traced back to Malone v Metropolitan Police Commissioner [1979] Ch 344 and see (1985) 7 EHRR 14.

4. The following statement appears in Responding to Human Rights Judgments:

The Government remains committed to the European Convention on Human Rights, and to giving effect to the Convention in domestic law. However, the Government wants to look afresh at how human rights are protected in the United Kingdom to see if things can be done better and in a way that reflects our traditions.

and

" ... the Government is committed to the European Convention on Human Rights and to honouring its obligations under the Convention. The UK’s approach to the implementation of judgments in the majority of cases has historically been timely and effective and the action taken to address issues highlighted by the ECtHR has generally been shown to be effective. The Joint Committee has previously acknowledged good practice in this area. At the same time, the Government recognises that there will always be some particularly sensitive and difficult areas in which progress towards implementation will not be as rapid as in other cases. This is a consequence of the complexity of the issues raised in such cases."

5. Any British Bill of Rights will have to somehow embrace the European Convention on Human Rights unless the UK were to leave the Council of Europe - (often, but wrongly, confused with the European Union).  I would submit that the latter is highly unlikely given that the UK is a founding member and has a long standing commitment to the aims of the Council which are not, in any event, confined solely to "realisation of human rights and fundamental freedoms" but extend to other areas such as economic, social, cultural and scientific matters.  The right of individual petition to Strasbourg will also remain since it is part and parcel of the European Convention though domestic channels of redress have to be exhausted first.

As regards the government honouring its obligations, it will be necessary to bear in mind the impact of cuts in the scope of legal aid and, for the majority of the population, the impact of means testing of legal aid.  "Rights" will become illusory if, for whatever reason, they cannot be enforced in practice including, if necessary, before the courts.

Related Post :  Protection of Rights