Amidst the drama of Monday’s late night Parliamentary debate on the government’s response to the Leveson Report in the Courts and Crime Bill, few noticed the fate of an amendment that could have had dramatic implications for the rule of law, as well as the rights of families. Only lack of time saved us from a bizarre culmination to the government’s dual onslaught on human rights in general and foreign ex-offenders with families in particular.
The amendment, tabled by Conservative back-bencher Dominic Raab, aimed to prevent foreign ex-offenders appealing against automatic deportation on the grounds of their right to a family life, under Article 8 of the European Convention on Human Rights. The Home Office and the Courts would only be permitted to consider rights under Articles 2 and 3 (the right to life and the right not to be subject to torture or inhuman or degrading treatment.)
Now, this is an objective that is dear to Theresa May’s soul, as she has many times made clear. But the Raab amendment would have gone beyond anything coming out of the Home Office, to declare open war on the European Court of Human Rights and foreign ex-offenders alike, the two great bêtes noires of the Tory back benches. It also gives an alarming insight into the attitude towards the rule of law within the party, particularly as Raab is a lawyer himself.
His amendment would have forced the Home Office to seek to deport foreign ex-offenders, even where they believed that it would breach their human rights. Article 8 is already a qualified right – as my colleague Kate Blagojevic explained recently on www.thejusticegap.com, Theresa May is quite wrong in claiming that the courts think that it is an absolute right. In the great majority of cases ex-offenders with families here are already deported. The amendment would have required the Home Office to ignore Article 8 altogether and act unlawfully.
Of course, the rule of law does still apply, so (in theory) it would not have worked. The British courts might have upheld appeals based on the Human Rights Act. Or else the European Court would have cancelled deportations until it could consider the Article 8 arguments, given that the UK is still a signatory.
This at least was the analysis of May and her civil servants, according to a leaked briefing note in which she set out the reasons for opposing the amendment: hundreds of ex-offenders undeportable for years while cases drag through the European Court. One of the joys of watching a government in turmoil is the flow of embarrassing leaks – this memo was published on the website of Mark Reckless, one of the Tory MPs behind the amendment.
The rebellious back-benchers were frustrated, as time ran out without the amendment being called. But it was a near miss – the Spectator has reported that, despite May’s note, the government intended to abstain. Had the amendment been called, it would probably have passed. The government would have willingly gone along with legislation that it knew to be unlawful and utterly impractical, deliberately throwing its own deportation programme into chaos. Presumably the fear of media outrage outweighed all legal and pragmatic considerations. Along with the chance to blame the European Court and human rights.
It’s a strange way to run a country.
So, instead we are left to wait for May’s promised Immigration Bill. Her note sets out her plan to force the recalcitrant courts into line by putting into legislation the Home Office’s interpretation of the what Article 8 should mean (very little, in effect). It would be a lawful route to the same end – no chance at all for foreign ex-offenders with British families.
Jerome Phelps is director of Detention Action