by Sarah Walker
Theresa May has found herself, yet again, on the receiving end of criticism from human rights lawyers following her recent announcement that she wants MPs to vote on what constitutes the Article 8 right to family life. In particular, she wants them to make clear in a Commons Motion that Article 8 is not an absolute right to family life and, further still, that where there is a choice between that right and deportation, in the context of foreign prisoners, judges ought to give priority to deportation. Furthermore, if they don’t, she has threatened to introduce primary legislation to the same effect.
This is a concerning announcement for several reasons.
Firstly, it is well known that the Article 8 right to family and private life is not absolute – this can be seen from the construction of the Article in the European Human Rights Convention, incorporated into domestic law over a decade ago in the Human Rights Act 1998:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right 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.
The conditions placed on the right to family life are right there already in Article 8(2), which one assumes Ms May will have read before discussing on The Andrew Marr Show, let alone incorporating into government policy. Furthermore, the judiciary are well aware of this and do consider the right to family life in balance with the exceptions.
Secondly, the threat of introducing legislation with a similar effect is an ineffective and consequently odd threat. There is already legislation that says this—the Human Rights Act—the very act Ms. May is complaining about. Further, any legislation on this point which creates a greater restriction on the right to family life is of course, open to challenge by way of a declaration of incompatibility under Section 4 of the Human Rights Act 1998 or, even, being overturned by the European Court of Human Rights (probably to the benefit of anti-ECHR campaigners who’ll see it as overriding our ‘democratic will’).
In introducing such legislation the Coalition government will arguably be stepping into the shoes of the previous Labour government in creating, as was often uttered across the floor of the House of Commons, legislation for legislation’s sake. In addition they will be creating an invite for more human rights claims – something they are allegedly seeking to avoid. This threat isn’t just hollow; it’s a hollowed-out pathway to Strasbourg.
Thirdly, Theresa May has provided yet another case of the Government dictating to the Courts how they should judge. Yes, the Courts must interpret legislation and mostly do so in line with what they derive the intention of Parliament to have been at the time of drafting and implementing the legislation. However, the key part of that sentence is “interpret”; not be told how to interpret. In doing the latter I, and many others, argue that they go too far. The effect of this overstep is made clear in the comments of Geoffrey Robertson QC who told the Sunday Times “Parliament cannot predetermine the results of individual cases, which all depend on careful and compassionate assessment of very different facts.”It is right that Parliament can enact a general rule through legislation that alters the way in which the judges perform their balancing act and, crucially, will change the range of possible interpretations of the right in question. But, if Theresa May’s aim is to increase the number of deportations, thus further restricting the right to family life, then the question still remains whether their alteration of the law’s meaning is compatible with Strasbourg jurisprudence. If she isn’t, and is
simply wishing to make clear that the judges must weigh issues such as national security and the economy in the balance with the right to family life, then she needn’t have bothered because Article 8(2) has already done this. Any Commons Motion on this point then appears to be another part of May’s propaganda machine – the same one that told the Conservative party conference a man was allowed to stay in the country because of his cat (not minding that this wasn’t actually what the judgment said).
So, in conclusion, I ask that Theresa May: (1) Read the Human Rights Act (and possibly buy a textbook on it too; after all, Alan Johnson said he’d buy one on economics), (2) Look at how the Courts have been making decisions before telling them how to make them and (3) Having undertaken (1) and (2), focus on workable policies instead of attempting to win votes from those sipping tea and eating croissants on a damp and grey Sunday morning in front of the television.