The Conservative Party have a bee in their bonnet about the European Convention on Human Rights; possibly this is because it has the word “European” in the title.
No doubt to gain plaudits, Theresa May, Home Secretary, at the Conservative Party conference said the following:
“We all know the stories about the Human Rights Act. ....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".
"I expect not many people have actually read Article Eight, so let me tell you what it says:
Article 8.1. Everyone has the right to respect for his private and family life, his home and his correspondence.” You can imagine, in post-war Europe, what the draftsmen intended. But now our courts – and the problem lies mainly in British courts – interpret the right to a family life as an almost absolute right.”
All I would say in answer to this tirade is the following: if there is no right to a family life, what then protects family life? Get rid of this provision, what protects the family from press intrusion, from intrusion from the state, or from intrusion by any future Home Secretary (one perhaps who is has an authoritarian streak)?.
The statement also raises a very serious question as the Home Secretary’s current responsibilities. For example, Mrs May signs warrants that allow the Security Services to intrude into private life. As required by laws that take Article 8 into account, there is a balance between the needs of the authorities to intrude into private and family life with the need to protect family life. The Article starts from the position that family life has to be protected unless there is an overriding interest specified in Article 8(2).
However, if the person signing these warrants starts from the position that this balance is a load of rubbish, then where is the guarantee that these national security agencies restrict themselves to their allotted functions?
Of course Mrs May would most likely reposte “It’s only about immigration”. But I would also argue that the second part of Article Eight allows for Mrs May to deport in certain circumstances:
“Article 8.2. 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.”
So the right to a family life is not an absolute right; it can be set aside (i.e. there can be deportation) if there is a valid national security, public safety, crime prevention, health or other protection reason. It follows that Mrs May wants is the ability to deport immigrant who claims a family life when there is NO national security reason, NO public safety reason, NO crime prevention reason, NO health reason or NO other protection reason for that deportation. Mrs May has not stated what this reason is – and I can’t think of it!
Note that if the criminal immigrant has no family life to protect then the Article 8 protection is void. The Home Secretary can deport if she has the powers.
On a subsequent TV interview, Mrs May said that she would introduce new immigration rules by Statutory Instrument that would make the deportation justified, in Human Rights terms, “for the protection of the rights and freedoms of others” (tucked at the end of Article 8(2)).
This reminded me of a high powered conference held to discuss the Data Protection Bill in 1983 (this Bill fell in when Mrs Thatcher called the 1984 General Election and a reintroduced Bill became the Data Protection Act 1984). There was one major difference between the 1983 Bill and the 1984 Act; the 1983 Bill had a special provision to do with immigration.
Since readers are familiar with the 1998 Act, the difference can be explained as follows: just imagine that “the control of immigration” appeared as another category in section 29(1) of the Act. This means that there would be a subject access exemption if a subject access request would prejudice “the control of immigration” and the exemption from the non-disclosure provisions would also apply to disclosures that would prejudice the “control of immigration”. In other words, “control of immigration” is equated with “prevention of detection of crime”.
At that conference, Paul Seighart, Member of the Lindop Committee on Data Protection, said the following. If the interference with private and family life is justified on the grounds of “the protection of the rights and freedoms of others”, then by inference there was a right not to have an immigrant as your neighbour or the freedom not to have an immigrant as a neighbour.
In 1964, the Conservative Candidate Peter Griffiths, won the Smethwick seat by running an anti-immigration campaign and benefiting from the infamous slogan "If you want a nigger for a neighbour, vote Labour". Seighart reminded the audience of that traumatic event – and that is why, I suspect, the “control of immigration” exemptions did not appear in the Data Protection Act 1984 (I would assume that if the exemptions had appeared in the 194 Act, they would have appeared in the 1998 Act, as the Data Protection Act 1998 was a “Home Office Bill” when it was enacted).
So Mrs May, when she talks about scrapping the Human Rights Act, she gains some huge plaudits and headlines. She is also opening a can of worms that historically has the potential to cause great damage to her Party and to family life.
At the end of the day what Mrs May wants is the ability to take away the family life of those who commit crimes in the UK, are punished in the UK. The other partner (or children) can chose to stay in the UK or leave. Can this really be the thought through policy of the party of “family values”?
Update and courses
This October/November, we have data protection courses in Leeds, London and Edinburgh and an FOI course in London: full details on the Amberhawk website. Update is next week in London – places still available
Biographical note: Paul Seighart is one of the early data protection and human rights “greats” who died sadly too young: see http://archiveshub.ac.uk/features/0410sieghart.html
You highlighted the crux of the matter in the final sentance by using 'thought through'! Was it? Probably not, it was soundbite politics which politicians of all hues specialise in these days
Posted by: Lee Gardiner | 06/10/2011 at 02:29 PM