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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This Ada Lovelace Day, let’s celebrate women in tech while confronting its sexist culture

In an industry where men hold most of the jobs and write most of the code, celebrating women's contributions on one day a year isn't enough. 

Ada Lovelace wrote the world’s first computer program. In the 1840s Charles Babbage, now known as the “father of the computer”, designed (though never built) the “Analytical Engine”, a machine which could accurately and reproducibly calculate the answers to maths problems. While translating an article by an Italian mathematician about the machine, Lovelace included a written algorithm for which would allow the engine to calculate a sequence of Bernoulli numbers.

Around 170 years later, Whitney Wolfe, one of the founders of dating app Tinder, was allegedly forced to resign from the company. According to a lawsuit she later filed against the app and its parent company, she had her co-founder title removed because, the male founders argued, it would look “slutty”, and because “Facebook and Snapchat don’t have girl founders. It just makes it look like Tinder was some accident". (They settled out of court.)

Today, 13 October, is Ada Lovelace day – an international celebration of inspirational women in science, technology, engineering and mathematics (STEM). It’s lucky we have this day of remembrance, because, as Wolfe’s story demonstrates, we also spend a lot of time forgetting and sidelining women in tech. In the wash of pale male founders of the tech giants that rule the industry,we don't often think about the women that shaped its foundations: Judith Estrin, one of the designers of TCP/IP, for example, or Radia Perlman, inventor of the spanning-tree protocol. Both inventions sound complicated, and they are – they’re some of the vital building blocks that allow the internet to function. 

And yet David Streitfield, a Pulitzer-prize winning journalist, someow felt it accurate to write in 2012: “Men invented the internet. And not just any men. Men with pocket protectors. Men who idolised Mr Spock and cried when Steve Jobs died.”

Perhaps we forget about tech's founding women because the needle has swung so far into the other direction. A huge proportion – perhaps even 90 per cent - of the world’s code is written by men. At Google, women fill 17 per cent of technical roles. At Facebook, 15 per cent. Over 90 per cent of the code respositories on Github, an online service used throughout the industry, are owned by men. Yet it's also hard to believe that this erasure of women's role in tech is completely accidental. As Elissa Shevinsky writes in the introduction to a collection of essays on gender in tech, Lean Out: “This myth of the nerdy male founder has been perpetuated by men who found this story favourable."

Does it matter? It’s hard to believe that it doesn’t. Our society is increasingly defined and delineated by code and the things it builds. Small slip-ups, like the lack of a period tracker on the original Apple Watch, or fitness trackers too big for some women’s wrists, gesture to the fact that these technologies are built by male-dominated teams, for a male audience.

In Lean Out, one essay written by a Twitter-based “start-up dinosaur” (don’t ask) explains how dangerous it is to allow one small segment of society to built the future for the rest of us:

If you let someone else build tomorrow, tomorrow will belong to someone else. They will build a better tomorrow for everyone like them… For tomorrow to be for everyone, everyone needs to be the one [sic] that build it.

So where did all the women go? How did we get from a rash of female inventors to a situation where the major female presence at an Apple iPhone launch is a model’s face projected onto a screen and photoshopped into a smile by a male demonstrator? 

Photo: Apple.

The toxic culture of many tech workplaces could be a cause or an effect of the lack of women in the industry, but it certainly can’t make make it easy to stay. Behaviours range from the ignorant - Martha Lane-Fox, founder of, often asked “what happens if you get pregnant?” at investors' meetings - to the much more sinister. An essay in Lean Out by Katy Levinson details her experiences of sexual harassment while working in tech: 

I have had interviewers attempt to solicit sexual favors from me mid-interview and discuss in significant detail precisely what they would like to do. All of these things have happened either in Silicon Valley working in tech, in an educational institution to get me there, or in a technical internship.

Others featured in the book joined in with the low-level sexism and racism  of their male colleagues in order to "fit in" and deflect negative attention. Erica Joy writes that while working in IT at the University of Alaska as the only woman (and only black person) on her team, she laughed at colleagues' "terribly racist and sexist jokes" and "co-opted their negative attitudes”. 

The casual culture and allegedly meritocratic hierarchies of tech companies may actually be encouraging this discriminatory atmosphere. HR and the strict reporting procedures of large corporates at least give those suffering from discrimination a place to go. A casual office environment can discourage reporting or calling out prejudiced humour or remarks. Brook Shelley, a woman who transitioned while working in tech, notes: "No one wants to be the office mother". So instead, you join in and hope for the best. 

And, of course, there's no reason why people working in tech would have fewer issues with discrimination than those in other industries. A childhood spent as a "nerd" can also spawn its own brand of misogyny - Katherine Cross writes in Lean Out that “to many of these men [working in these fields] is all too easy to subconciously confound women who say ‘this is sexist’ with the young girls who said… ‘You’re gross and a creep and I’ll never date you'". During GamerGate, Anita Sarkeesian was often called a "prom queen" by trolls. 

When I spoke to Alexa Clay, entrepreneur and co-author of the Misfit Economy, she confirmed that there's a strange, low-lurking sexism in the start-up economy: “They have all very open and free, but underneath it there's still something really patriarchal.” Start-ups, after all, are a culture which celebrates risk-taking, something which women are societally discouraged from doing. As Clay says, 

“Men are allowed to fail in tech. You have these young guys who these old guys adopt and mentor. If his app doesn’t work, the mentor just shrugs it off. I would not be able ot get away with that, and I think women and minorities aren't allowed to take the same amount of risks, particularly in these communities. If you fail, no one's saying that's fine.

The conclusion of Lean Out, and of women in tech I have spoken to, isn’t that more women, over time, will enter these industries and seamlessly integrate – it’s that tech culture needs to change, or its lack of diversity will become even more severe. Shevinsky writes:

The reason why we don't have more women in tech is not because of a lack of STEM education. It's because too many high profile and influential individuals and subcultures within the tech industry have ignored or outright mistreated women applicants and employees. To be succinct—the problem isn't women, it's tech culture.

Software engineer Kate Heddleston has a wonderful and chilling metaphor about the way we treat women in STEM. Women are, she writes, the “canary in the coal mine”. If one dies, surely you should take that as a sign that the mine is uninhabitable – that there’s something toxic in the air. “Instead, the industry is looking at the canary, wondering why it can’t breathe, saying ‘Lean in, canary, lean in!’. When one canary dies they get a new one because getting more canaries is how you fix the lack of canaries, right? Except the problem is that there isn't enough oxygen in the coal mine, not that there are too few canaries.” We need more women in STEM, and, I’d argue, in tech in particular, but we need to make sure the air is breatheable first. 

Barbara Speed is a technology and digital culture writer at the New Statesman and a staff writer at CityMetric.