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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The deafening killer - why noise will be the next great pollution scandal

A growing body of evidence shows that noise can have serious health impacts too. 

Our cities are being poisoned by a toxin that surrounds us day and night. It eats away at our brains, hurts our hearts, clutches at our sleep, and gnaws at the quality of our daily lives.

Hardly a silent killer, it gets short shrift compared to the well-publicised terrors of air pollution and sugars food. It is the dull, thumping, stultifying drum-beat of perpetual noise.

The score that accompanies city life is brutal and constant. It disrupts the everyday: The coffee break ruined by the screech of a line of double decker buses braking at the lights. The lawyer’s conference call broken by drilling as she makes her way to the office. The writer’s struggle to find a quiet corner to pen his latest article.

For city-dwellers, it’s all-consuming and impossible to avoid. Construction, traffic, the whirring of machinery, the neighbour’s stereo. Even at home, the beeps and buzzes made by washing machines, fridges, and phones all serve to distract and unsettle.

But the never-ending noisiness of city life is far more than a problem of aesthetics. A growing body of evidence shows that noise can have serious health impacts too. Recent studies have linked noise pollution to hearing loss, sleep deprivation, hypertension, heart disease, brain development, and even increased risk of dementia.

One research team compared families living on different stories of the same building in Manhattan to isolate the impact of noise on health and education. They found children in lower, noisier floors were worse at reading than their higher-up peers, an effect that was most pronounced for children who had lived in the building for longest.

Those studies have been replicated for the impact of aircraft noise with similar results. Not only does noise cause higher blood pressure and worsens quality of sleep, it also stymies pupils trying to concentrate in class.

As with many forms of pollution, the poorest are typically the hardest hit. The worst-off in any city often live by busy roads in poorly-insulated houses or flats, cheek by jowl with packed-in neighbours.

The US Department of Transport recently mapped road and aircraft noise across the United States. Predictably, the loudest areas overlapped with some of the country’s most deprived. Those included the south side of Atlanta and the lowest-income areas of LA and Seattle.

Yet as noise pollution grows in line with road and air traffic and rising urban density, public policy has turned a blind eye.

Council noise response services, formally a 24-hour defence against neighbourly disputes, have fallen victim to local government cuts. Decisions on airport expansion and road development pay scant regard to their audible impact. Political platforms remain silent on the loudest poison.

This is odd at a time when we have never had more tools at our disposal to deal with the issue. Electric Vehicles are practically noise-less, yet noise rarely features in the arguments for their adoption. Just replacing today’s bus fleet would transform city centres; doing the same for taxis and trucks would amount to a revolution.

Vehicles are just the start. Millions were spent on a programme of “Warm Homes”; what about “Quiet Homes”? How did we value the noise impact in the decision to build a third runway at Heathrow, and how do we compensate people now that it’s going ahead?

Construction is a major driver of decibels. Should builders compensate “noise victims” for over-drilling? Or could regulation push equipment manufacturers to find new ways to dampen the sound of their kit?

Of course, none of this addresses the noise pollution we impose on ourselves. The bars and clubs we choose to visit or the music we stick in our ears. Whether pumping dance tracks in spin classes or indie rock in trendy coffee shops, people’s desire to compensate for bad noise out there by playing louder noise in here is hard to control for.

The Clean Air Act of 1956 heralded a new era of city life, one where smog and grime gave way to clear skies and clearer lungs. That fight still goes on today.

But some day, we will turn our attention to our clogged-up airwaves. The decibels will fall. #Twitter will give way to twitter. And every now and again, as we step from our homes into city life, we may just hear the sweetest sound of all. Silence.

Adam Swersky is a councillor in Harrow and is cabinet member for finance. He writes in a personal capacity.