Theresa May’s recent cat-astrophe at the Tory Conference (*groan*) has drawn attention to the blatant untruths regarding the Human Rights Act. So, let’s sort fact from fiction.
The Human Rights Act 1998 (HRA) is an Act of Parliament which aimed to “give further effect” in UK law to the Human Rights detailed in the European Convention on Human Rights (EConvHR). It makes it unlawful for any public body to contravene the Convention, unless it is impossible to do so without breaking another Act of Parliament – see, even the courts can’t overturn Parliament, but we’ll get onto this.
Many in the Conservatives want to overturn this Act – it is believed that this, somehow, will stop us falling ‘prey’ to parts of the Convention which prevent us from deporting foreign nationals who have breached UK law.
Theresa May recently claimed that we needed to repeal the Human Rights Act because of “The illegal immigrant who cannot be deported because – I am not making this up – he had a pet cat.”
Except… she was making it up. Or she was incompetent. Not sure which. But ultimately, she was wrong.
The Home Office themselves proved her wrong.
a) It wasn’t the European Convention on Human Rights that was consulted – and thus had nothing to do with the Human Rights Act. It was a Home Office procedure that was in place. British law.
b) Before any of you say it, this case was tried in Britain. Nothing to do with strange, foreign, European judges.
c) The cat wasn’t the reason – it was the fact he had a girlfriend in this country.
The case is complicated but it boils down to this. In a very straightforward way… she was slightly correct. But just slightly. The man was threatened with deportation to his native Bolivia – but he was allowed off because he had settled down and had a life here. To deport him would tear him from family. The cat was used as evidence that it was a real, strong relationship. Think about it – do you buy a cat with just anybody?
The Home Office was granted a reconsideration – Senior Immigration Judge Gleeson did say in the decision of the Asylum and Immigration Tribunal, dated 1st of December 2008, that the reconsideration was granted in reference to
“the inappropriate weight placed on the appellant having to leave behind not only his partner but also their joint cat, [ ]”
The judge blanked out the name of the cat – lolage. It gets better, the final line is “The Immigration Judge’s determination is upheld and the cat, [ ], need no longer fear having to adapt to Bolivian mice.” Yeah, he realised it was just funny…
So the cat was a bit strange – but the real reason behind the reconsideration and the upholding was that the Home Office had failed to upholad its own guidance. Not even Human Rights law. It’s own guidance, which gives more weight to those in long-term relationships.
More information here
Do we need to scrap the HRA?
The actual purpose of the act is often mis-stated – the HRA doesn’t force cases to go to the European Court of Human Rights. It actually repatriated powers – something May and her ilk are so keen on doing. It allowed British judges a first crack at Human Rights cases. Beforehand, every case had to be straight to the court in Strasbourg. This cost people thousands, and tied up the courts – now we deal with things in this country.
As Ken Clarke said “If you repeal the Human Rights Act, all the cases go back to Strasbourg and I think it is a good idea that we remain adhering to the Convention on Human Rights and the cases are heard here by British judges.”
So, there’s no case for scrapping it there.
Repealing the act won’t get us out of the obligations of the EConvHR. It just won’t – we’re still signatories, and the Strasbourg court is still crucial. We would probably be evicted from the Council of Europe if we did, leaving us on the same level of respect for Human Rights as Belarus. The European Union is in the process of acceding to the Convention, so we would still have to keep to the Convention when implementing EU law (which, as an aside, is only around 7% of British laws).
If we withdrew, we would be international pariahs.
Having said that, that is essentially all that happens if Parliament breaches the Convention. As I mentioned, the Human Rights Act doesn’t allow judges to overrule parliament. British judges are under a duty to interpret legislation wherever possible as being compatible with the EConvHR. If it isn’t, British law wins out. The worst that Strasbourg can do is issue a “declaration of incompatibility” and may award compensation. It gives us a bad reputation for undermining international law (which I think we should shy away from), but it doesn’t actually affect British law much at all…
Why expel foreign criminals?
I have yet to be told WHY we should actually expel criminals from other countries – think about it. We don’t deport British citizens. We don’t hand them a one-way ticket to Australia and tell them to pack a bag. We don’t separate them from their families here. So why do it to foreigners?
It doesn’t prevent them being punished – a murderer WILL go to jail. Afterwards, he has paid his debt to society, or been rehabilitated, or been kept isolated long enough to become ‘safe’ – whatever is the purpose of the criminal justice system. Why punish him even further by stopping him being with his family?
Why have Human Rights?
I have yet to work out the actual problem with the EConvHR or HRA – admittedly, the family part can be problematic, but it’s no problem to rewrite that.
As I said above, I, personally, don’t see a huge reason to expel someone who is clearly no danger to society. If they are, then Subsection 2 of Article 8 of the HRA states
“There shall be no interference by a public authority with the exercise of this right except such as 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.”
Essentially, in case there IS some danger to society from the person roaming the streets of Britain… we can deport them. Easily. Just strengthen the dependent on this provision, and we’re set. No more problems.
Unless, that is, May takes issue with the prohibition of slavery and/or torture? Or right to assembly? Or right to freedom of expression? Or right to a fair trial? Surely not?
Actually, screw all that. The HRA is a bad idea. While you’re at it Theresa, scrap the Magna Carta for me will you? I quite like the fact that I should, as a “freeman”, be punished outside the law, by any noble who sees fit. Elizabeth, my Queen, feel free to take my land and liberty from me, exile me whenever you want… after all, it’s my Human Rights, those terrible things, that are stopping you from doing just that.
This is part of why I can’t understand the Tories’ position – this act doesn’t strangle British judges. It strangles the government. Anyone who believes in a small-state, and in the supremacy of the individual should be glad of Human Rights.
Human Rights weren’t invented to annoy the Right on immigration. They were invented and developed to limit the power of the state to interfere in our lives. Hear that? OUR lives. Every last one of us. Without Human Rights, we would be at the prey of the state, without right to due process, or freedom of assembly, free speech… we’d live in a world where the government could decide to separate you from your wife, your children… on a whim.
Actually, without Human Rights, we don’t have the right to democracy. Totalitarian State FTW! All hail Emperor Cameron!
One final word – when pressed on the accuracy and veracity of the claim during an interview with BBC Radio 4’s World at One, she said…
“”Of course the things I said in my speech were checked before they went in my speech but… if somebody has said that there is a different situation then obviously we will look at the quote that has come out and have another look at the case.
“I know though that this is just one example of a number of cases where people have looked at what has happened and said to themselves ‘you know what, here’s a foreign criminal who can’t be deported, the rights of that individual are being put above the rights of other people’.”
So… essentially, this case may not be true but I bet there are others that are!
This isn’t a chain e-mail, Theresa. These are people’s lives we’re dealing with. Get the facts straight, then we can have a proper debate on what Human Rights mean to the British people.
- Cat had nothing to do with failure to deport man (UKHumanRightsBlog.com)
- Tory Conference cat-fight: Clarke and May clash over Human Rights Act story (guardian.co.uk)
- Reports of the Human Rights Act’s death have been greatly exaggerated (UKHumanRightsBlog.com)
- Scrapping the Human Rights Act (PoliticalReboot.co.uk)
- Clarke condemns May for ‘laughable’ attack on Human Rights Act (guardian.co.uk)
- Why the Human Rights Act matters for people with mental health conditions (purplepersuasion.wordpress.com)
- Scrapping the Human Rights Act: The Northern Ireland Dimension (RightsNI.org)
- May wants Human Rights Act axed (bbc.co.uk)
- Human Rights Act divides Tories (independent.co.uk)
- Mail and Sunday Telegraph: cat-alysts for more anti-immigration feeling (Tabloid-Watch.blogspot.com)