5th October 2021
Conference season: the time of year where it is customary for Conservative politicians to declare their attacks on the Human Rights Act 1998.
This year it is the turn of the new Lord Chancellor and Justice Secretary Dominic Raab.
Here is his conference speech this morning.
You will see the speech does not even mention legal aid.
But you will also see, right at the end (and thereby just before the expected applause) the following:
“And there’s one other big change the public want to see.
“Too often they see dangerous criminals abusing human rights laws.
“In one case, a drug dealer convicted of beating his ex-partner,
“A man who hadn’t paid maintenance for his daughter,
“Then successfully claimed the right to family life to avoid deportation.
“Conference, it is absolutely perverse that someone guilty of domestic abuse could claim the right to family life to trump the public’s interest in deporting him from this country.
“We’ve got to bring this nonsense to an end.
“So, today I can tell you that, under this Prime Minister and before the next election,
“We will overhaul the Human Rights Act
“To end this kind of abuse and restore some common sense to our justice system.”
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So: “overhaul”.
You would think that, with the current transport chaos, government ministers would avoid haulage metaphors – but no, Raab goes straight in.
But.
Why was that word chosen instead of another word “repeal”?
Could it be that he has realised that the time and effort involved in repealing this legislation, and the fact that at least in Northern Ireland it would have to be replaced with identical legislation under the Good Friday Agreement, means that repeal would not be worth it?
And what is an overhaul?
Perhaps he is waiting for the report of the Gross committee.
But on any view, an overhaul suggests something less than outright repeal – and it may mean very little indeed.
Of course: repeal cannot be ruled out – and this government has done dafter, more illiberal things.
But today Raab chose not to announce repeal, but to say something less.
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And what of this case he cites?
“In one case, a drug dealer convicted of beating his ex-partner,
“A man who hadn’t paid maintenance for his daughter,
“Then successfully claimed the right to family life to avoid deportation.”
It appears to be a reference to this case – and, if so, it is to a decision from 2009.
A decision twelve years old, and from before the current government.
It is not even a recent case.
Furthermore, a significant change in the law in 2014 already provides for how courts should approach such Article 8 family life cases.
So not only is not a recent case, it may be that the issue identified by Raab in his speech has already been addressed.
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If that is the case on which Raab relies then he has hardly made out that ‘overhaul’ is urgent.
Of course: facts and citations do not matter – this is politics, and not law.
One can quite imagine the Human Rights Act 2000 being repealed just for the symbolic sake of it – even if parts of it then have to be reenacted under another less-provocative name.
But.
The ministry of justice only has limited resources and a limited claim on the legislative timetable.
There are many other – higher – priorities for a justice secretary, some of which he mentioned in his speech.
A symbolic ‘overhaul’ will probably be all that can be managed – and may not even have a bill to itself.
Supporters of the Human Rights Act must always be vigilant – but the blast of the repeal trumpet today was not a loud one.
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The yanks call it ‘willie-waiving’. How many Tory ministers have threatened to reform, overhaul etc the HRA 1998; and how many actually do anything. And why should they? The rights it protects are clear; and mostly it is operated well indeed. If I were you, Raab, I’d pick on law reform which is more your own size – and yes, to start with legal aid would be more than fair
I can’t read the BAILII link for some reason, but I think that is the AP case from 2011.
It would be interesting to see the court’s approach to the AP case, balancing the factors mentioned in Part 5A to the Nationality, Immigration and Asylum Act 2002 (as inserted by the Immigration Act 2014).
It was one of those cases where the Home Secretary sought to deport someone after they were convicted of several relatively minor offences (community sentence, fine, suspended sentence, ending with a prison sentence of 18 months). Understandably, given the devastating impact it would have on their life, the person appealed against the deportation order, and they won their first appeal, but the Home Secretary won a second appeal (allowing the deportation decision to stand), and then on further appeal the Court of Appeal ultimately upheld the first appeal.
So far so normal. A finely balanced case where different courts reached different decisions on the facts and the law. Eventually one side wins and the other loses.
But would the 2014 legislation have made much difference to the result?
As I understand it, the person was a national of Trinidad who came to the UK aged 4 and lived in the UK for about 20 years before the Court of Appeal’s decision in 2011. It seems he was lawfully resident in the UK for most of his life, and I expect he was socially and culturally integrated in the UK. Would there be “very significant obstacles” to his integration into life in Trinidad? Quite possibly yes, if he had not been back and had no substantial connection there. So he may have met the criteria for Exception 1 in section 117C to apply anyway.
It may be an impossible task, but it would also be fascinating to know what happened when the so-called “dangerous criminal” AP was permitted to remain in the UK. Has he been convicted again? Has he been deported? Or did he settle down an establish a productive life here?
Too often we see a frustrated government minister – particularly one whose own decisions have been overturned by the courts, or one who has read the headnote to a case but not seen the evidence given in court – claiming to know what “the public want to see”, labelling someone who is unable to defend themselves as “dangerous”, and describing reliance upon legal rights as some sort of abuse.
Even criminals are entitled to a family life. That is the nature of human rights. Even people we dislike get them.
It is, but the criticised decision was back in 2009.
2011 was the appeal hearing, which upheld the original decision on technical grounds.
BAILII still not working, but now I’ve found a copy of the 2011 appeal of the 2010 reconsideration of the initial 2009 decision. As you say the Court of Appeal decision was of a technical nature – was the 2009 decision wrong in law so it should have been reconsidered in 2010 (answer: no, so the original decision stands).
But my question stands: would the original 2009 decision have been any different, applying the 2014 law? Or whatever Raab’s “overhaul” involves? He appears to be saying that certain types of criminals are not entitled to a family life, even when their (former) partner has given evidence that they are a good and caring parent.
There are some further factual points mentioned in the case report: while the deportation appeals were ongoing, another conviction for drugs possession, a second conviction for battery, and an allegation of GBH; and also inconsistent evidence about the nature of his family relationships.
So I fear this case may not have ended well, even though AP won this appeal, but would be interesting to know the eventual result, as it looks to me as though the courts were just doing their job, balancing conflicting rights as best they could on the basis of the evidence in front of them. That is the legal system working. The judges are not there to rubberstamp the administrative decision.
I can’t see how an additional or “overhauled” layer of legislative direction would help very much – at least, not until Raab has explained in detail what is wrong with the current position, and what his changes will do to address the problems.
“That is the nature of human rights. Even people we dislike get them.”
This. Although I’d amend the sentence to ‘it is particularly important that people we dislike get their human rights respected.’
Absolutely. It is particularly important that judicial and administrative bodies pay due regard to the human rights of disadvantaged persons, because they are the ones primarily at risk of having those rights infringed. But the rights are there for everyone.
I fear Mr Raab is heading into a tar pit.
Out of interest I printed out ‘this case’ and had to read it 3 times to get any sense from it. Even then it seemed the most frightful tangle of judgements, counter judgements, appeals, this court, that court the other court – whatever. ASFAICS the bottom line is that this chap was 3 or 4 when he arrived here and has a string of relatives here as long as your arm. He also seems a thoroughly bad lot and I can see why a Home Secretary might want to chuck him out.
But, I came away thinking that however much I don’t like it this chap deserves a British prison rather than a Jamaican one. Basically he is our problem – in very tangled words. So if Mr Raab plans to rely on stuff like this he is headed for a load of problems. Fools rush in.
Ha! “In fairness…” I see that Dominic Raab was careful to acknowledge your point in this blog when he addressed the Commons Justice Committee for the first time today.
Here’s the video – it is at around 14:50:56:
https://parliamentlive.tv/Event/Index/b49d3b8c-3e34-4030-a8f3-e0f2b273fb34
Some interesting hints as to what the HRA “overhaul” might look like too…