The phoney war between the UK political establishment (or at least significant sections of it) and the European Court of Human Rights in Strasbourg has been going on for at least as long as the Human Rights Act 1998 has been in force. But, at least until very recently, that “war” could fairly be characterised as phoney because ultimately everyone accepted that the bottom line was set by the UK’s international obligations under the European Convention on Human Rights. In the final analysis, UK judges were simply enforcing requirements deriving from international law (in the form of the Convention), and of course the UK’s status as a party to the Convention was a given. However, as noted in my recent posts (here and here) concerning the position being staked by the Home Secretary—to the delight of the right-wing press and sections of the Conservative Party—the UK’s relationship with, and even participation in, the ECHR is now up for discussion in a way that has so far been unthinkable.
Dominic Raab MP’s amendment to the Crime and Courts Bill
Against that background, it worth noting an amendment to the Crime and Courts Bill that has been tabled by Dominic Raab MP and supported by MPs from other parties such as former Home Secretary David Blunkett. What, then, would be the effect of Raab’s amendment? It would bite upon the UK Borders Act 2007. As presently drafted, section 32 of that Act provides that the Secretary of State must make deportation orders in respect of certain foreign nationals convicted of criminal offences in the UK, and that she may not revoke such an order except in limited circumstances. One of those circumstances is prescribed by section 33(2). Its effect is to allow the Home Secretary to revoke a deportation order
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.
However, Dominic Raab’s amendment proposes inserting into the Crime and Courts Bill the following clause:
In section 33(2)(a) of the UK Borders Act 2007, for “Convention rights”, substitute “rights under Articles 2 or 3 of the Convention”.
The effect of this would be reduce the Home Secretary’s authority under section 32 to revoke a deportation order: such an order would have to remain in place even if deportation would lead to a breach of Convention rights other than those contained in Articles 2 (right to life) and 3 (torture, inhuman and degrading treatment). The obvious aim is to make it impossible—as a matter of UK law—to resist deportation on grounds such as Article 8 (which has formed the focus of the Home Secretary’s recent criticisms of the judiciary) and Article 6 (which is involved in the cause célèbre of Abu Qatada).
What about the Human Rights Act?
But what about the HRA? Would it not prevent such a naked attempt at circumventing the ECHR? The short answer is “no”; here is the longer version.
The present regime for automatic deportation of “foreign criminals”, sketched above, interacts with the HRA in the following way. Section 32(6) (implicitly) confers a discretion on the Home Secretary to revoke a deportation order that has been automatically imposed under section 32(5). That discretion arises where deportation would cause a breach of Convention rights. Crucially, however, the effect of section 6 of the HRA is to convert the discretion conferred by section 32(6) of the UK Borders Act into a duty—because the Home Secretary, as a public authority under the HRA, is legally required to act in accordance with Convention rights.
However, the duty (to abide by the Convention) imposed by section 6(1) of the HRA yields where the effect of primary legislation is to require a public authority to do something that would breach the Convention. The question then becomes whether the UK Borders Act, as amended, would constitute primary legislation of that nature. And that question, in turn, depends on whether—under section 3 of the HRA—it would be “possible” to interpret the revised UK Borders Act provisions in a way that did not require Convention-incompatible administrative action.
In all likelihood, it would not be “possible” to construe those provisions in such way. Although, as cases like Ghaidan v Godin-Mendoza show, the courts are willing to discharge their interpretative duty under section 3 of the HRA in an expansive manner, it is hard to see how the revised UK Borders Act could be interpreted consistently with the Convention. It would unambiguously require the imposition—and forbid the revocation—of a deportation order whether or not Convention rights stood to be infringed, unless those rights fell under Articles 2 or 3. The most the courts would be able to do, therefore, would be to make a declaration of incompatibility under section 4 of the HRA.
It is worth adding that none of this would risk repealing the HRA (impliedly or otherwise). The HRA is drafted in a such a way as to cater for the possibility of primary legislation that is incompatible with the ECHR: the effect of such legislation is not to repeal the HRA, but to trigger those aspects of the Act that provide for such an eventuality. Nor does any possibility arise of the HRA prevailing over the later (amended) UK Borders Act: the HRA anticipates the possibility of inconsistency between the rights it enshrines and other (including subsequent) legislation, providing for such a conflict to be resolved other than by reference to the simple rule of priority that applies when two Acts of Parliament are actually inconsistent with one another. For this reason, the possibility that the HRA might be immune from implied repeal as a “constitutional statute” (as conceived by Laws LJ in Thoburn v Sunderland City Council) is neither here nor there.
It seems likely, therefore, that part of the point of the amendment (as Adam Wagner has noted) would be to provoke the showdown with Strasbourg that would follow as inevitably as night follows day. And to those intent upon disengaging the UK from the ECHR regime, such a showdown would likely serve a useful purpose by acting as a focal point for the advocacy of withdrawal from the ECHR. The headlines—“Strasbourg judges block deportation of dangerous foreign criminals”—are doubtless already being written, along with editorials in favour of getting rid, once and for all, of the pernicious influence of a foreign court upon the British legal system. The strategy (if this is what it amounts to) is a cynical one—but it is a clever one too. It is to be hoped that common sense will prevail. However, given the fog of mythology surrounding the HRA and the ECHR, there is no guarantee that it will.
Public Law for Everyone 
It’s funny, I can see the sort of balancing case which could in principle be made in Strasbourg (if we artificially exclude the Article 8 rights of the family members of the would-be deportee), were some some sort of argument from retribution and deterrence to have weight in such a balancing. BUT. What affronts me and I suspect a lot of others about all of this anti-Strasbourg nonsense, is the antipathy of a certain British party to the rule of law as such, to constitutional fetters on an already overweening and much-misused majoritarian political setup. It speaks to me more than anything about the type of individual and instinct said party wishes to appeal to. Nasty instincts overall.
The difficulty is that through the UK courts and both the European Courts of Justice and Human Rights, judges have construed various rights (particularly Article 8 and the Charter of Fundamental Rights) in such a manner that non-EU citizens with an EU family have for all intents and purposes EU citizenship. Many people (myself included) think that this rather makes a mockery of the immigration system, especially when those non-EU nationals began relationships when they were already in breach of immigration law. Yes it is a real shame that some families will be forced to chose between leaving the EU or being separated but if that is necessary to uphold the wider integrity of the system I don’t think it is disproportionate.
I actually think that the best outcome here would be a showdown with Strasbourg (and probably in time Luxembourg) where the judges upheld the margin of appreciation that the UK should (in my opinion) have in deporting non-EU citizens who have broken the law. This would in part demonstrate that the ECHR is not overly limiting on Britain’s maintenance of a functioning immigration system.
Speaking as someone on the left of centre, I think it is unfair and a tad hyperbolic to suggest that those who feel that the use of Article 8 is over broad are generally in favour of the removal of all human rights and the return of hanging, flogging and baby eating.
I think you will find that that is not so much a matter of interpretation, as of black letter law. Here’s art. 3(2) of Directive 2004/38, the general free movement directive. Note that it says “irrespective of nationality”, which is about as unambiguous as it gets:
2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.
Alex, Martin,
Thank you for your comments – I thought exactly as you did Alex, and agreed with every word you wrote. I was then equally grateful to Martin for correctly me, and highlighting Directive 2004/38.
Our politicians need to make their mind up: either –
a) Admit that (as I believe) the benefits of being in the EU, and the ECHR, outweigh the minmimal disadvantages/constraints, and thereafter keep quiet and stop trying to score cheap political points, or:
b) Withdraw from the EU and ECHR, and deal with the financial and political fall out from doing so.
This constant, vituperative proxy war being waged through the pages of the Telegraph, Mail, Express and Sun, is deeply damaging to the fundamental basis on which the rule of law ultimately derives its legitimacy: the consent of the governed.
This debate always seems to miss the point.
Before the HRA English Judges did not ignore Human Rights. They may not have over-cited off-piste comments uttered in Strasbourg but they applied the fundamental principles of Human Rights we all take for granted. Human Rights did not appear in 1950 or 1966 but have been part and parcel of English Law for generations. One might even fairly conclude that English Law has been way ahead of Continental Law in terms of giving effect to our liberties.
In reality the debate about Prisoner Voting Rights or Immigration Rights for Terrorist Suspects is not a legal one but a political one. In any debate about who governs democracy must always be the trump card or the social contract collapses.
While leaving the Convention may be undesirable from a diplomatic perspective it will not, on it’s own, transform the UK into a tyranny. The power to do so is, ultimately, in the hands of the people and not Judges sitting either off Parliament Square or in Strasbourg. One only worries whether the flagrant disregard of the will of the vast majority to, for instance, return foreign terrorist suspects back to face the kind of justice (it is said) they would want to impose on us, is heading the public towards the path towards dictatorship rather than democracy.