Wednesday 13 March 2013

Getting rid of foreign criminals ~ an attempt to amend the law and deny (most) human rights

The Crime and Courts Bill is important.  It started its progress through Parliament in the Lords and is now approaching the end of its consideration by the Commons.

Recently, Theresa May (Home Secretary) expressed her exasperation at the European Convention on Human Rights preventing her deporting 'foreign criminals' - that is non-British nationals who have been sentenced to at least 1 year of imprisonment.  She was clearly angered by the decision in Izuaza - discussed in my earlier post of 20th February.   Here, the judges made it clear that the revised Immigration Rules, albeit debated in the Commons, were not legislation.  The Rules could not in any way override the requirement, under the Human Rights Act 1998, for the judges to apply convention rights including rights such as Article 8 (Right to respect for private and family life).

An amendment to the Crime and Courts Bill has been 'tabled' by Dominic Raab MP (pictured).  The amendment appears to have some considerable support in the Commons.

What the amendment
will do is amend section 33(2)(a) of the UK Borders Act 2007 which, at present states:

(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach - (a) a person's Convention rights, or (b) the United Kingdom's obligations under the Refugee Convention.

As amended (if it is amended) it would read:

(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach - (a) a person's Convention rights rights under Articles 2 or 3 of the Convention, or (b) the United Kingdom's obligations under the Refugee Convention.

Thus, according to the amendment, the individual's family circumstances could not prevent deportation.  Only if deportation would affect either the individual's right to life (art 2) or involve a risk of torture (or cruel or inhuman treatment) (art 3) would deportation be prevented.  Any other Convention rights would not be relevant.

Thoughts and discussion:

1.  At the outset it is useful to look at the European Convention Article 1 -The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

There is nothing there about excluding from consideration rights such as Article 8.   Thus, it follows that, by denial of rights, the UK must be in breach of the Convention.

2.  Under the traditional (or Diceyean) constitutional arrangements of the UK, the Queen in Parliament is supreme and may make or unmake any law whatsoever.  Under this doctrine, Parliament may legislate contrary to any of the UK's international obligations including the European Convention.  Any legal consequences of doing this arise only from international law in that a treaty obligation has been breached.  As the prisoner voting case shows, enforcement of the European Convention is problematic - 'the Achilles heel' of the Convention as discussed here.  The untramelled supremacy doctrine gives absolute power to Parliament - (which is, in modern times, dominated by the executive) - and offers the people little to nothing by way of rights.

Interestingly, there are some eminent judicial dicta (comments) that the traditional doctrine may not be quite without restriction.  In  Jackson v Attorney-General [2005] UKHL 56  Lord Steyn stated at paragraphs 101 and 102:-

We do not in the United Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts. In the European context the second Factortame decision made that clear: [1991] 1 AC 603. The settlement contained in the Scotland Act 1998 also point to a divided sovereignty.   Moreover, the European Convention on Human Rights as incorporated into our law by the Human Rights Act, 1998, created a new legal order.   One must not assimilate the ECHR with multilateral treaties of the traditional type.   Instead it is a legal order in which the United Kingdom assumes obligations to protect fundamental rights, not in relation to other states, but towards all individuals within its jurisdiction.   The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom.   Nevertheless, the supremacy of Parliament is still the general principle of our constitution.   It is a construct of the common law.   The judges created this principle.   If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism.   In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.   It is not necessary to explore the ramifications of this question in this opinion.   No such issues arise on the present appeal.”

Lord Hope immediately took up the baton and stated at paragraph 104:

“I start where my learned friend Lord Steyn has just ended. Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.”

Those who dislike parliamentary supremacy should not get too excited about Lord Steyn's comments since he limits it to exceptional circumstances and offers a couple of examples.  His comments were obiter dicta and it is unclear just what might amount to exceptional circumstances.

3.  One of the important features of modern human rights development since the late 1940s is that there are certain fundamental rights which, in a truly democratic nation, should not be denied to individuals.  The rights in the European Convention must surely be among such rights.  Respect for private and family life is a fundamental of the human condition though the Convention recognises that, in specified instances, the right may be restricted.  However, there is nowhere in the Convention any statement permitting exclusion of the right altogether.  (Under Article 15 - Derogation is possible but not in the circumstances envisaged here).

4.  In English law, it is now beyond doubt that any exclusion of convention rights (or perhaps restriction of rights) requires the clearest of words from Parliament - see ex parte Simms where Lord Hoffmann said:

'Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.'

5.  Looking at the amendment to UK Borders Act 2007, the wording appears to clearly limit consideration to Articles 2 and 3 only.  For my part, I am not sure that this goes far enough.  Is it not arguable that human rights have created a 'new legal order' (per Lord Steyn)?   If so, is this a legal order in which denial of fundamental rights is simply not permitted?

Such an argument would be extremely bold and perhaps unlikely to succeed but it appears to have the support of the dicta in the Jackson case.

6.  However, let us assume that the bold argument is not accepted.  We then have two Acts of Parliament pointing in different directions.  The Human Rights Act 1998 requires the application of convention rights but the UK Borders Act 2007 denies them. 

Whilst there is a doctrine of 'implied repeal' (see the Thoburn case 2002), I do not think this is a case of implied repeal in any sense because the whole construction of the Human Rights Act is such that the possibility of Parliament legislating contrary to convention rights is recognised.  The Act permits the courts to make a declaration of incompatibility only.  It is then up to Parliament whether to make changes.  If Parliament does not do so then the road to Strasbourg opens.

7.  Is the amendment clear enough to exclude rights other than Arts 2 and 3?  It may just be that they are not sufficient in themselves in the absence of a crystal clear and unambiguous statement of intent to legislate contrary to the convention.  This argument (based on ex parte Simms) might find some favour but I confess to serious doubts.

At the very least, the UK Borders Act will have to contain a Ministerial statement that section 33 is not compatible with the convention but that Parliament wishes the enactment to proceed - Human Rights Act 1998 s.19(1)(b)   A section 19(1)(b) statement is of course an acknowledgment by government that a provision is not compatible with the convention but such a statement does not, in itself, prevent application to the European Court of Human Rights.

8.  The UK Borders Act 2007 s33 also requires attention to be paid to the 1951 Refugee Convention and its protocol.  This is not considered further here.

9.  A further consideration is the European Union's Charter of Fundamental rights.  This is not discussed further here except to note that there is a protocol to the charter intended to regulate the effects of the Charter within the domestic legal order. - for discussion see UK Constitutional Law blog

Most likely scenario:

Although a few other possibilities have been touched upon, the more likely outcome of the Dominic Raab amendment will be a declaration of incompatibility with Ministers then insisting that the amendment is to remain in place.  The long and massively costly journey to Strasbourg will, yet again, be taken and Strasbourg will decide that convention rights (all of them) apply to those under consideration for deportation but the court, if it is wise, will emphasize that rights such as Article 8 do not necessarily prevent deportation.  They are rights that must be applied in all cases though their actual application will depend on the specific facts of each case.

Unfortunately, as Adam Wagner pointed out on UK Human Rights blog - grist will be given to the mills of those who wish to take the UK 'out of the Convention' / Council of Europe.

The daily reality of deportation cases is that rights such as Article 8 are weighed in the balance by the judges and it is not in every case that family life wins.  This point is illustrated all too well by the very case that upset Theresa May - Izuazu.  The sensible thing would be to leave the law alone and leave the judges to do their work but appeasement of the right-wing media seems to be the political order of the day.  As amended, section 33 may produce some very disproportionate results.

The tabling of this amendment, at a late stage of a Bill's parliamentary progress, seems designed to minimise debate on this important issue.   It is to be hoped that wiser heads in Parliament prevail and prevent the amendment becoming law.

Another earlier post - Beneath the bluster


  1. Thanks as ever, OJ. A perspicacious analysis, well-leavened with law and political awareness, and referenced as always. I believe the interaction with the Charter of Fundamental Rights (especially where EU nationals are concerned) will progressively kick in and, in the process, add further grist to certain people's mills. The Communitarisation (or should we now say 'Unionisation'?) of such matters will increase tensions vis-à-vis Brussels. But it may in the end make matters clearer, so that Parliament realises the stark choice it has between xenophobia & alienation on the one hand and engagement & development on the other.

  2. Thanks ObiterJ. One quick correction: Dominic Raab has never been a justice minister. He was a government lawyer in the civil service for a while in the early noughties, and served as chief of staff to Dominic Grieve as shadow justice secretary, but he himself has never held ministerial office, in MoJ or anywhere else.

  3. Thanks to Anonymous - who is correct. The post has been amended

    Dominic Raaba

  4. Thank you OJ once again for a finely honed analysis of the position. I share your reasoning and concerns but reach a significantly different conclusion.

    Back in 1998 and subsequently, whilst I very occasionally found the Convention useful for achieving justice that could not be achieved by traditional methods, I have always had serious misgivings on its rationale. It does damage to the principle of Parliamentary Sovereignty for the reasons you give (from a different perspective) above. It also does damage to the principle of the literal approach to statutory interpetation for it requires the judiciary to give legislation a skewed interpretation against the paradigm 'individual freedom good : state interference bad', which was obviously integral to its original purpose, preventing a return to 1930s facism on the continent after the War, but is by no means a universal truth. So in my analydis the ECHR undermines democracy and it undemines the rule of law. It requires judges to exercise political judgements rather than acting as honest brokers, raising all manner of other awkward questions concerning their legitimacy. Many people back in 1998 commented that the courts would over time be dragged into making increasingly political decisions some of which would frustrate the will of democratically elected governments, on the basis of a set of value judgements made many decades earlier. So it should come as a surprise to no one that after a decade or so this friction has come about.

    We now have the shocking sight of a home secretary announcing to judges in individual cases through the media what she expects them to do and lampooning an individual judicial decsion before a cheering audience party conference when it goes against her.

    In my judgement, the worst case scenario is not that we lose the Human Rights Act. The worst case scenario is that a determined government will seek and eventually find ways, openly or covertly, by fair means or foul, of exercising influence and control over on the judiciary. It increasingly runs the magistrates courts as though they were branches of the Jobcentre. I fear we live in very dangerous times.