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

Photo: Getty Images
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How can the left make the case for immigration?

All too often, we drift into telling people we want to convince that they just don't get it.

We don’t give the public enough credit. You’ll often hear their views dismissed with sighs in intellectual circles. In fact on most issues the public are broadly sensible, most are these days supportive of cutting the deficit and dubious about political giveaways, but in favor of protecting spending on the NHS and education. Yet there is one issue where most, “knowledgeable” folks will tell you the public are well out of step: immigration. 

With [today’s] net migration figures showing yet another record high, it is an ever more salient issue. On a lot of measures ‘too much immigration’ ranks highest as the number one concern (see Ipossmori). The ongoing rise of right wing political parties across Europe demonstrates that simply enough. But concerns about immigration don’t just sit with those with more extreme views, they’re also shared across the mainstream of public opinion. Yet unlike thinking on cutting the deficit or funding the NHS the public consensus that immigration is bad for Britain, flies flat in the face of the intellectual consensus, and by that I mean the economics. 

Given the intense public debate many a study has tried to spell out the economic impact of immigration, most find that it is positive. Immigration boosts the nation’s GDP. As the theory goes this is because immigrants bring with them entrepreneurialism and new ideas to the economy. This means firstly that they help start new ventures that in turn create more wealth and jobs for natives. They also help the supply chains to keep ticking. A example being British agriculture, where seasonal workers are are needed, for example, to pick the strawberries which help keeps the farms, the truckers and the sellers in business. 

Most studies also find little evidence of British jobs being lost (or displaced) due to immigrants, certainly when the economy is growing. Indeed economists refer to such “ “they’re” taking our jobs” arguments as the “lump of labour fallacy’. On top of all that the average migrant is younger than the native population and less likely to rely on welfare, so their net contribution to the state coffers are more likely to be positive than natives as they don’t draw as much state spending from pensions or the NHS. 

So why haven't the public cottoned on? Many progressive types dismiss such views as racist or xenophobic. But it turns out this is to misunderstand the public just as much as the public ‘misunderstand’ immigration. When you study people’s views on immigration more closely it becomes clear why. Far from being racist most people asked by focus groups cite practical concerns with immigration. Indeed if you go by the British Social Attitudes Survey a much smaller number of people express racist view than say they are concerned about migration.  

The think tank British Future broadly set out that while a quarter of people are opposed to immigration in principle and another quarter are positive about it the majority are concerned for practical reasons - concerns about whether the NHS can cope, whether there are enough social houses, whether our border controls are up to scratch and whether we know how many people are coming here in the first place (we don’t since exit checks were scrapped, they only came back a few months ago). But more than anything else they also have very little confidence that government can or wants to do anything about it. 

This truth, which is to often ignored, begets two things. Firstly, we go about making the argument in the wrong way. Telling someone “you don’t understand immigration is good for our economy etc etc” is going to get a reaction which says “this person just doesn't get my concerns”. Despite the moans of progressives, this is precisely why you won't hear left leaning politicians with any nous ‘preaching’ the the unconditional benefits of immigration.

More importantly, the economic arguments miss the central issue that those concerned with immigration have, that the benefits and effects of it are not shared fairly. Firstly migrants don’t settle homogeneously across the country, some areas have heavy influxes other have very little. So while the net effect of immigration may be positive on the national tax take that doesn't mean that public services in certain areas don’t loose out. Now there isn't clear evidence of this being the case, but that could just as well be because we don’t record the usage of public services by citizenship status. 

The effects are also not equal on the income scale, because while those of us with higher incomes scale tend to benefit from cheep labour in construction, care or agriculture (where many lower skilled migrants go) the lower paid British minority who work in those sectors do see small downward pressure on their wages. 

It’s these senses of unfairness of how migration has been managed (or not) that leads to the sense of concern and resentment. And any arguments about the benefit to the UK economy fail to answer the question of what about my local economy or my bit of the labour market. 

Its worth saying that most of these concerns are over-egged and misused by opponents of immigration. Its only a small factor in stagnating wages, and few local areas are really overrun. But the narrative is all important, if you want to win this argument you have to understand the concerns of the people you are trying to convince. That means the right way to make the argument about immigration is to start by acknowledging your opponents concerns - we do need better border controls and to manage demands on public services. Then persuade them that if we did pull up the drawbridge there is much we’d loose in smart entrepreneurs and in cultural diversity. 

Just whatever you do, don’t call them racist, they’re probably not.

Steve O'Neill was deputy head of policy for the Liberal Democrats until the election.