6th October 2021
Yesterday Dominic Raab, the Justice Secretary and Lord Chancellor, made a speech to Conservative party conference.
In that speech, as this blog described yesterday, he cited a 2009 immigration decision as the reason why where needed to be an ‘overhaul’ in 2021 of the Human Rights Act 1998.
This 2009 decision – which was upheld on appeal in 2011 on technical grounds – was (as Adam Wagner has identified) used in a speech of that year by Theresa May, the then Home Secretary:
Actually, Raab appears to have copied this example from Theresa May's 2011 #catgate speech! Can't they get any new tunes?https://t.co/RpVhuHzfTmhttps://t.co/wxd8obBQzz pic.twitter.com/cMDWsFtTms
— Adam Wagner (@AdamWagner1) October 5, 2021
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But the problem with using this case in a 2021 speech in favour of ‘overhauling’ the Human Rights Act 1998 is that the relevant law changed in 2014.
So: was the justice secretary aware that the law had been changed when he made the speech?
Or was the case used by him (or his speechwriter) without checking whether the law had changed?
I asked the press office of the Ministry of Justice but they could only refer it to the minister’s political advisors, as this was a political speech, not a ministerial speech.
(Which is fair enough.)
I was then contacted by (and I use journalistic convention) ‘sources close to the justice secretary’.
Here it was confirmed that the case alluded to was indeed the 2009 decision.
But I pressed on whether, at the time the secretary of state made the speech, he was aware that the relevant law had changed?
I was then told by ‘sources close to the justice secretary’:
– the Immigration Act 2014 was ‘a step forward’, but that it focused on foreign national offenders serving sentences of four years or more – which left out a large number of less serious offenders (and in the 2009 case the sentence had been 18 months); and
– the 2014 Act also introduced an ‘elastic balancing test’ which the courts apply relying on longstanding case-law, rather than making clear the overwhelming public interest in deportation.
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But.
Neither of these two propositions are correct.
The 2014 changes expressly provide: ‘The deportation of foreign criminals is in the public interest’.
That is, all foreign criminals.
So the 2014 law did makes ‘clear’ that deportations of foreign criminals are in the public interest.
This would apply to the 2009 case.
The changes also expressly provide: ‘The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.’
Again, this applies to all foreign criminals – and not just those with sentences higher than four years.
This also would apply to the 2009 case.
The additional provisions on those with four-year sentences provide that, subject to exceptions such as the person having ‘a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of deportation on the partner or child would be unduly harsh’, there will be a deportation.
But even those deportations are subject to exceptions.
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This more detailed response from ‘sources close to the justice secretary’ did not answer my question of whether the justice secretary had been aware of the 2014 legal changes, and it appeared to me that this exposition had been mugged-up after the speech.
However, when pressed a third time, I was finally told that the justice secretary had indeed been aware of the 2014 legal changes when he made his speech.
Taking this eventual confirmation at face value then it appears that the justice secretary does not understand the effect of the 2014 legal changes.
The 2014 legal changes made expressly ‘clear’ that ‘the deportation of foreign criminals is in the public interest’ and the ‘more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal’.
So there are either two explanations.
Either: contrary to he assurance of ‘sources close to the justice secretary’ the justice secretary had not actually known the law relating to the 2009 case had changed (and this cannot be admitted).
Or: if he did know of the 2014 changes, the justice secretary had not understood that his 2009 example case had been overtaken by the law.
But what cannot be the case is that the justice secretary both knew and understood that the law had changed in 2014 in respect of the 2009 decision that he is citing as the reason why the Human Rights Act needs to be ‘overhauled’ in 2021.
(And, finally, if there was a need to make changes in this area, those presumably would be in respect of immigration legislation – a Home Office responsibility – rather than the Human Rights Act itself.)
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As this is the drone who admitted to not knowing that Britain imported stuff via Dover-Calais when it was his job to know such things, it seems quite likely he neither knew mor cared that the law had changed since the example he quoted.
I look forward to his promotion to Agriculture Minister, when he will reveal that he didn’t know that beef came from cows.
And only this morning in a BBC interview he said “misogyny is wrong, whether it is a man against a woman or a woman against a man”.
I rest my case.
And that reminds me of his colleague’s comments about “terrorism and counter-terrorism offences” …… She actually repeated that phrase in the next sentence as well.
Muppets, the lot of them!
Well, to be fair, Parliament can’t seem to make up its mind what to call the legislation, and at various times has passed acts with titles including plain “Terrorism”, “Prevention of Terrorism” or “Terrorism Prevention”, “Anti-terrorism” (often with “Crime and Security”), and “Counter-Terrorism”, each with their own criminal offences.
Muppets, as you say.
Of “..But what cannot be the case is that the justice secretary both knew and understood that the law had changed in respect of the twelve-year old case he is citing as the reason why the Human Rights Act needs to be ‘overhauled’.”
Unless, of course, he intended to mislead his audience. Which, based on past performance, is, I subnit, a likely interpretation.
But what cannot be the case is that the justice secretary both knew and understood that the law had changed in respect of the twelve-year old case he is citing as the reason why the Human Rights Act needs to be ‘overhauled’.
Unless, of course, he intended to mislead his audience. Which, based on past performance, is, I submit, a likely interpretation.
Thank you for your blogs yesterday and today – you’ve made the situation very clear.
As regards the Justice Secretary quoting the ‘Right to Family and private life’, I wanted to make one comment, namely it is not the right to family life of the offender, which will influence a deportation decision, it is the right to family life of his/her son/daughter and his/her spouse. It is the child whose right to family life is important and it is his/her rights which will be considered.
Absolutely
Perhaps I have this wrong, but it is both, isn’t it – the rights of both the offender, and of their family?
The rights of an innocent partner or child may weigh more in the balance, as against the public interest in deportation of a foreign offender, but even an offender has the right to respect for their private or family life (except in accordance with the law and as necessary in a democratic society for the prevention of crime, etc.). No?
For example, Part 5A of the Nationality, Immigration and Asylum Act 2002, as amended, sets out two parallel and alternative exceptions (for people sentenced to less than 4 years): to paraphrase:
1 – lawful residence in the UK for most of the offender’s life, with integration into the UK, and significant obstacles to integration elsewhere; or
2 – a genuine and subsisting relationship with a UK partner or child, upon which deportation which have an unduly harsh effect.
Or an offender with a sentence to four years or more needs to show “very compelling circumstances” to avoid deportation, over and above those two exceptions.
And then the European caselaw (which Raab will struggle to overrule) tells us, whatever the domestic legal rules, the judges still need to weigh up the various factors to determine if deportation is necessary and proportionate.
Surely there is a very likely third explanation: that Raab knew about the 2014 changes, and understood their relevance to the 2009 case, and was well aware that further changes along the lines he suggested are unnecessary, but made the speech anyway because it was politically expedient.
Yes – I believe that is quite likely.
In every sector of Government there are now people like this one who are in charge despite neither knowing nor being capable of knowing the relevant facts about their area of responsibility. Most of the time it doesn’t come to light, but in Raab’s case, it emerges sparkling new with each change of role. The PM’s, in this regard, sparkles blindingly with misunderstanding, misrepresentation and mischief.
Laurence above beat me to it. “Unless, of course, he intended to mislead his audience. Which, based on past performance, is, I sub[m]it, a likely interpretation.”
I’m repeating it here in support and to emphasise that I think this is the truth of the matter.
It would be nice to be proved right one day, but in these nacht-und-nebel days, I don’t expect it’ll happen.
It’s known as “throwing red meat to the base” and is a contemptible activity that rarely ends well when ethno-nationalist sentiments are stoked.
In possible mitigation there is some evidence that he isn’t actually very bright, may be quite lazy, and subbed the speech to some junior and then simply phoned it in unchecked and oblivious to the issues raised in this rather delicious post. Dover. Good Friday Agreement. And now this.
“But what cannot be the case is that the justice secretary both knew and understood that the law had changed in respect of the twelve-year old case he is citing as the reason why the Human Rights Act needs to be ‘overhauled’.”
Call me cynical but, as several others have already mentioned, I wouldn’t put it past this Government at all to cite this case in full knowledge and understanding that it isn’t a valid reason for an overhaul. We see such misleading behaviour every day when it comes to the NIP as well, for example.
I had a sneaking suspicion that the infamous deportation case that was alleged to have turned on ownership of a cat (falsely, as it turned out) would be in there somewhere.
In relation to Raab’s suggestion that the rules need to be “overhauled” again, there is an interesting comment in this report of a recently decided ECHR case – https://ukhumanrightsblog.com/2020/12/10/deportation-and-family-rights/ – referring back to dicta of Lord Reed in a UK Supreme Court decision in 2017, that “the history of the relationship between the [UK] Immigration Rules and article 8 has been a move away from broad discretion to detailed rule making.” [as an aside, politicians and bureaucrats seem to have a tendency towards fettering judicial discretion, with ever more detailed and prescriptive rules, trying to force the judges to decide cases as the policymaker wishes] “The present case underlines once again that the Rules do not provide a complete code for article 8 claims. Despite the seemingly restrictive language of the most recent iteration of the Rules, it remains the case that an assessment is required as to whether an adequate balance has been struck between the relevant interests.”
There is what has been described as a “balance sheet” approach, balancing the pros and cons of various factors against the public interest in the deportation of foreign offenders.
In that particular case, Unuane v UK, the UK courts did not see “very compelling circumstances” to keep the person in the UK, and they were deported in 2018. While agreeing that their offence was “at the more serious end of the criminal spectrum” (a sentence of five years six months for what looks like fraud offences, ironically falsifying applications for leave to remain in the UK), the ECtHR did not consider the offence to be “of a nature or degree capable of outweighing the best interests of the children” (three children, all UK citizens, and one with a congenital heart disorder) and ruled there was a breach of the applicant’s right to respect for private and family life.
The applicant was awarded damages of €5,000, which I expect is cold comfort after you have been deported with little expectation of being allowed back, but some might see it as a price worth paying (I expect the legal costs would have been many times that).
Raab seems to want to create even stronger and more detailed deportation rules for the UK. But if the European Convention on Human Rights remains as it is, I expect the European Court of Human Rights will at some point insist again that the UK rules must be applied in accordance with the Convention, and the Court’s caselaw.
If a proper lawyer gave misleading information she or he would be in serious trouble with the court (if litigation was involved) or with our professional regulators. But if it’s only the Lord Chancellor misleading statements don’t matter
Oh come on David, don’t be naive! As others have said, there is an obvious third possibility: that Mr Raab knows perfectly well the law has already been changed, but does not care.
Sadly, we live in a post-truth age, and – as the Minister and his cynical advisors understand very well – the vast majority of the public will never learn of the true legal situation you set out so carefully, or care much even if they did. This is not law, this is politics!!
They have rightly calculated that the public impact of citing this case – perfectly calibrated to stoke outrage at a plainly daft ruling by this foreign court – is far greater than any damage done by the quibbling on fine points from a handful of liberal legal insiders such as you and the readers of this blog. It is deliberately deceptive populism – but, sadly, that is how some play the game today.
You must be aware of who the “source close to” is. She or he – somehow I sense the latter – makes a show of defending the Minister’s use of this case on legal grounds, but my guess is that once they have put down the phone, the laughter is hollow.
Sorry, Gavin, which “plainly daft ruling” by which “foreign court”?
The 2009 decision in the AP (Trinidad & Tobago) case as made by the UK’s Asylum and Immigration Tribunal, with a reconsideration by different judges of the same tribunal in 2010, and then an appeal in 2011 determined by the Court of Appeal of England and Wales. All purely domestic decisions, applying UK domestic law..
The first tribunal heard the evidence (in particularly, they heard from the mother of the man’s child, who said he was a good and caring father) reached their decision in accordance with the law. On what basis was that “plainly daft”?
No, there’s a misunderstanding! I use this ridiculous language as hyperbole – this is obviously not my own view, I am trying to mimic the tabloid outrage and ignorance that Mr Raab and his advisers seek to stoke! Sorry, I thought this was evident from the context.
If you go back to Mr Raab’s speech, even in the officially published version he himself describes the ruling as “nonsense” – which is pretty close to “plainly daft”. Indeed, it is a domestic ruling, and there was no explicit Strasbourg-bashing in his speech this time, but – given the decades of such bashing from Mr Raab and others – he knows that much of his audience will immediately make such a connection.
A perfect example is the Mail’s report on the speech, read by around two million people – it is nothing less than a frontal attack on that unmentioned “foreign court”! (“Raab: time to ditch the European rights court” by Home Affairs Correspondent David Barrett, 6 October 2021 – tellingly, the full text is not available on the Daily Mail’s website so I cannot send you a link, though you can find it via PressReader. Its opening paragraph runs: “BRITAIN’S Supreme Court should have the final say on human rights cases – not the European Court of
Human Rights, the Justice Secretary said yesterday.”)
The point is that Raab and his political advisors – while, in my view, perfectly aware of the real facts that you carefully set out – have no compunction in presenting a twisted, grotesquely simplified and deeply misleading version of this case to rabble-rouse for political ends.
And they really don’t care what a few nit-picking legal bloggers, or indeed you or I, might think – as long as two million readers and future voters (quite wrongly) understand something else: a plainly daft ruling from a foreign court.
It’s one of the black arts of politics to say one thing while ensuring that something different is heard – but these guys, with appalling cynicism, a carefully-choreographed selection of PR tricks, and a chilling disregard for the legal facts, have perfected it.
And I hope we both agree this is terrible!