Here are a couple of hard questions. Do people have the fundamental right to family life or not? And do people have the fundamental right not to suffer inhuman and degrading treatment or not?
By “fundamental” it is meant that the rights can be relied upon by you or anybody else when faced with state action and coercion. You or anybody else can ask a judge to have regard to these rights when determining whether the state can do what it wants. Fundamental rights mean that the government cannot always have its way in individual cases.
For Reform and Conservative politicians the answers to these questions are easy. There should not be such rights, at least rights drawn from the European Convention of Human Rights (ECHR) and given effect by the Human Rights Act (HRA).
Their position is that the United Kingdom should withdraw from the former and the latter should be repealed. No judge should have regard to these rights in determining individual cases.
The current Labour government, however, does not want to quit the ECHR or repeal the HRA. But ministers are not happy with how the convention is operating in asylum cases. They believe that Article 8 (which includes the right to family life) and Article 3 (which contains the right against inhuman and degrading treatment) are being misused.
So the Home Office has come forward with a complicated workaround as part of a raft of proposals on reforming the law applying to asylum seekers. The clever idea is that the terms of both articles are redefined: that what is meant by “family life” and “inhuman and degrading treatment” are narrowed.
The government hopes that these changes will mean that cases that are now being decided one way will then be decided another way. And this in turn will deter applicants and their lawyers from citing these convention rights in applications.
The government should not get its hopes up. Even if these changes are implemented, they would only make a potential difference in a handful of cases. The definition of “family” is already narrow other than in exceptional cases. And if a court finds as a fact that an applicant would face “inhuman and degrading treatment” in the event of an application being turned down then it is unlikely not to protect the applicant.
The changes would also be likely to be counterproductive, at least in terms of time and resources. For if a domestic court or tribunal decides a case out of line with the relevant jurisprudence at Strasbourg then the affected party can petition the European Court of Human Rights for a determination. This would not be a saving for the government: indeed it will make the cases more expensive and time-consuming.
And the HRA itself provides that domestic courts and tribunals must follow the ECHR caselaw in domestic cases, and so it is also possible that the proposals have no real effect. As such they will be no more than gimmicks.
If the UK government is sincere in wanting changes to how Articles 3 and 8 are construed in individual cases this should be done not by tinkering with domestic law but by getting agreement at an international level. This has been done before. The UK government 10 years ago secured a compromise on prisoner votes, thereby ending what had been a standoff between London and Strasbourg.
The UK is certainly not the only signatory to the ECHR that faces large numbers of asylum applications. It is a common concern across Europe. As such, any purported problems with how convention rights apply to asylum is something which, if those problems were valid, would presumably mean the UK would have hearty support elsewhere on the continent.
But gaining such an agreement for international change would involve hard work by ministers and officials, even though securing such compromises are the very stuff of politics and diplomacy. It is much easier to announce some fiddly superficial changes that would not make any real difference.
The ECHR and HRA do not provide a great deal of protection for fundamental rights: there is usually a way for the government to get its way in terms of policy and law-making. But the ECHR and HRA do make a difference in marginal cases.
The government should accept this, and resource the asylum system properly so that application decisions are made promptly and properly. That would do more than playing about with definitions.
Some may say on an abstract level that an international human rights instrument from after the second world war may not be relevant in the 21st century. But if one goes from the general plane to particularities, few will seriously deny that individuals have a right to family life and against inhuman and degrading treatment, whatever the century. Those rights are applicable at all times and all places.
As the law and practice of asylum is inherently international in its nature, any changes to the scope of fundamental protections should be discussed and agreed on international level, and not by uniliteral internal changes.
And the government must answer those basic questions: do people have the fundamental right to family life or not? And do people have the fundamental right not to suffer inhuman and degrading treatment or not?
[Further reading: There are no simple solutions to the small boats crisis]
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