We shouldn't let the Home Secretary load the dice over human rights

There is no justification for the new immigration bill – and it's a move guaranteed to harm unpopular minorities, writes Adam Wagner.

In today's Queen's Speech the Government announced plans to limit the use of Article 8 of the European Convention on Human Rights. The changes are likely to be popular, thanks to longstanding campaigns by some newspapers to restrict the rights of foreigners who have committed crimes here. 

But there are reasons why we should be very wary about this proposal, as it could greatly alter the balance of power between judges and the Executive. 

The proposals themselves are a bit vague. The new Immigration Bill will:

give the full force of legislation to the policy we have already adopted in the Immigration Rules. The courts would therefore be required to properly reflect the balance given to the public interest when ruling on immigration cases.

Helpfully, the Daily Mail has some more detail:

The legislation will add legal weight to guidance for judges introduced last July by Theresa May that foreign criminals should be able to use Article 8 of the Human Rights Act in exceptional circumstances only. 

What should we make of this? Let's start with the basics.

Article 8 of the European Convention on Human Rights is sometimes said to give people an unqualified right to family and private life. That is simply wrong. The full text begins by saying that "everyone has the right to respect for his private and family life...". But it goes on. The right can be interfered with by public authorities if that interference 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 first thing to understand is that Article 8 is already heavily 'qualified'. Judges know this. They can, and regularly do, decide that national security and public safety trump a person's right to family and private life. Indeed, primary legislation already tells judges that deportation for serious crimes is "conducive to the public good". 

Fact sensitive

How do judges decide? Any decision about human rights involves a  fact-sensitive balancing exercise. Tribunal judges will usually hear oral evidence and decide, for example, how close the person threatened with deportation is to their three young British children, and how badly the children will be affected. They will also  consider evidence of the seriousness of that person's crimes, their likelihood of reoffending and the threat to public safety of them staying in the country. They will then reach a decision - such as this one.

The crucial thing to understand is that Parliament - through the Human Rights Act - has given judges the job of interpreting whether public authorities have breached individuals' human rights.

The reason for this is simple. Public authorities, such as the Home Office, have a legal duty to act in a way which does not breach human rights. If they fail in that duty, an individual can take them to court to enforce their rights. Logically, public authorities shouldn't be the judges in their own cases, which is why judges are brought in to referee. That is central to our balance of power system: Parliament decides the law, judges determine whether public authorities are acting within the law.

Perverse decisions

The Home Office is invariably the respondent in decisions about deportation. It is on one side of the case, and sometimes loses but also regularly wins. When the Home Office loses, like any party to litigation, it has the right to apply to appeal the judgment.

It is also open to a Home Secretary to argue that judges' decisions are so perverse that the basic balancing exercise needs to be taken out of their hands by changing the law. That is what is about to happen. It seems that the Home Office wants to upgrade recent immigration rules changes to primary legislation, which would prevent courts from ignoring them in favour of the ordinary Article 8 balancing exercise. Most notably, in some foreign deportation cases "it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors".

But as you might have guessed, this is a big step - a Rubicon is being crossed. The Home Secretary's view on Article 8, and where the balance lies, will be forced on judges. It is a bit like an under-pressure football manager convincing the Football Association to make the space between his team's goal posts narrower.

So, before taking such a big step, we need to ask whether there is sufficient justification.

The first place to look is the newspaper campaigns I mentioned earlier. I have some sympathy with those campaigns - for example this  widely criticised Tribunal decision does seem to somewhat stretch the boundaries of Article 8. More generally, whilst the Home Office should not be able to deport who it likes with impunity, people who commit serious crimes and who have no leave to be here should generally be deported.

But there are a few problems with the campaigns too. First, the reported cases are often misrepresented, and when considered further seem a lot more marginal - like this one

Second, even if there are some perverse decisions, it is by no means clear that those decisions are a representative sample. The figures are regularly fiddled, and for all of its protesting, the Home Office itself has not published a detailed analysis either.

Third, the newspapers are regularly fed tribunal judgments which are supposedly wrong, but we rarely hear about the Home Office appealing those judgments. If they are so perverse as to require restricting basic rights, surely the Home Office should appeal them before attempting to change the law? The reality is that many failed deportations are due to  incompetence and unacceptable delays in dealing with cases - such as  the case of Aso Mohammed - not flaws in judicial reasoning. 

Crossing the Rubicon

It is therefore doubtful that there is enough justification for these changes. But even assuming there is, and we cross this Rubicon, where does it stop? It is easy to imagine other public authorities arguing that judges have been making perverse decisions in their human rights cases, so we need a "rebalancing" there too, such as in relation to sex offenders or prisoners.

You might think that is fair enough, but restricting rights for unpopular groups invariably has unintended consequences. Which is exactly the reason Parliament has given the job of balancing rights to impartial judges rather than partial politicians. And whatever the Home Office proposes, this bill is likely to lead to open season on the Human Rights Act, with much more extreme proposals, such as preventing criminals altogether from using human rights protections, in the pipeline.

There are very good reasons for letting judges, not politicians, decide whether public authorities have breached individual rights. We should therefore be very careful indeed before letting the Home Office load the dice in human rights cases.

Adam Wagner is a barrister at 1 Crown Office Row specialising in human rights and medical law. He is the founding editor of the UK Human Rights Blog and tweets as @adamwagner1.

The European Court of Human Rights. Photograph: Getty Images

Adam Wagner is a barrister at 1 Crown Office Row chambers and editor of UK Human Rights Blog

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It's easy to see where Berlin is being rebuilt – just hit the streets

My week, from walking the streets of Berlin to class snobbery and the right kind of gentrification.

Brick by brick, block by block, the people are rebuilding the city once called Faust’s Metropolis. To see it clearly, put your boots on. One of the most bracing walks starts by the Gethsemane Church, which served as a haven for dissenters in the last days of the GDR and takes you down ­towards the Hackescher Markt.

Here, in what is still the eastern half of a divided city that wears its division more lightly, is a Berlin experience both old and new. In three decades of frequent visits, it has been fascinating to note how much this part of town has changed. Even a decade ago these streets were rundown. With crumbling buildings showing bulletholes, it wasn’t hard to imagine what the place looked like in 1945. Now there are lilacs, blues, and yellows. Cafés, bars and restaurants abound, serving the young professionals attracted to the city by cheap rents and a renewed sense of community.

 

Breaking the fourth wall

Looking north along Schliemannstraße, you’ll find a delightful vista of well-tended balconies. It’s a pleasant place to live, notwithstanding the gaggle of grotesques who gather round the corner in the square. On Kastanienallee, which forms the second leg of the walk, an old city feels young. It’s a kind of gentrification but the right kind. There’s more to eat, to drink, to buy, for all.

Berlin, where Bertolt Brecht staged his unwatchable plays, was supposed to have been transformed by a proletarian revolution. Instead, it has been restored to health by a very middle-class one. Germany has always had a well-educated middle class, and the nation’s restoration would have impossible without such people. The irony is delicious – not that irony buttered many parsnips for “dirty Bertie”.

 

The new snobbery

The British Museum’s survey of German history “Memories of a Nation” is being presented at the Martin-Gropius-Bau as “The British View”. Germans, natürlich, are curious to see how we observe them. But how do they see us?

A German friend recently in England  said that the images that struck him most forcibly were the tins of food and cheap booze people piled up in supermarkets, and the number of teenage girls pushing prams. Perhaps Neil MacGregor, the former director of the British Museum who will shortly take up a similar role here at the new Humboldt Forum, may turn his attention to a “German View” of the United Kingdom.

There’s no shortage of material. In Schlawinchen, a bar that typifies Kreuzberg’s hobohemia, a college-educated English girl was trying to explain northern England to an American she had just met. Speaking in an ugly modern Mancunian voice that can only be acquired through years of practice (sugar pronounced as “sug-oar”), she refer­red to Durham and York as “middle class, you know, posh”, because those cities had magnificent cathedrals.

When it comes to inverted snobbery, no nation can match us. To be middle class in Germany is an indication of civic value. In modern England, it can mark you as a leper.

 

Culture vultures

The Humboldt Forum, taking shape by the banks of the Spree, reconsecrates the former site of the GDR’s Palace of the Republic. When it opens in 2018 it will be a “living exhibition”, dedicated to all the cultures of the world. Alexander von Humboldt, the naturalist and explorer, was the brother of Wilhelm, the diplomat and philosopher, whose name lives on in the nearby university.

In Potsdamerplatz there are plans to build a modern art museum, crammed in between the Neue Nationalgalerie and the Philharmonie, home to the Berlin Philharmonic. Meanwhile, the overhaul of the Deutsche Staatsoper, where Daniel Barenboim is music director for life, is likely to be completed, fingers crossed, next autumn.

Culture everywhere! Or perhaps that should be Kultur, which has a slightly different meaning in Germany. They take these things more seriously, and there is no hint of bogus populism. In London, plans for a new concert hall have been shelved. Sir Peter Hall’s words remain true: “England is a philistine country that loves the arts.”

 

European neighbours

When Germans speak of freedom, wrote A J P Taylor, a historian who seems to have fallen from favour, they mean the freedom to be German. No longer. When modern Germans speak of freedom, they observe it through the filter of the European Union.

But nation states are shaped by different forces. “We are educated to be obedient,” a Berlin friend who spent a year at an English school once told me. “You are educated to be independent.” To turn around Taylor’s dictum: when the English speak of freedom,
they mean the freedom to be English.

No matter what you may have heard, the Germans have always admired our independence of spirit. We shall, however, always see “Europe” in different ways. Europe, good: we can all agree on that. The European Union, not so good. It doesn’t mean we have to fall out, and the Germans are good friends to have.

 

Hook, line and sinker

There are fine walks to be had in the west, too. In Charlottenburg, the Kensington of Berlin, the mood is gentler, yet you can still feel the city humming. Here, there are some classic places to eat and drink – the Literaturhauscafé for breakfast and, for dinner, Marjellchen, a treasure trove of east Prussian forest delights. Anything that can be shot and put in a pot!

For a real Berlin experience, though, head at nightfall for Zwiebelfisch, the great tavern on Savignyplatz, and watch the trains glide by on the other side of Kantstraße. Hartmut Volmerhaus, a most amusing host, has been the guvnor here for more than 30 years and there are no signs that his race is run. The “Fisch” at twilight: there’s nowhere better to feel the pulse of this remarkable city. 

This article first appeared in the 01 December 2016 issue of the New Statesman, Age of outrage