Wednesday, October 19, 2011

Who Needs Human Rights? Part III - The Politicians

I promised a Part III to this series, so I suppose I'd better deliver. In Parts I and II we covered the #CatFlap  controversy and the role of the tabloids in misreporting the Human Rights Act. In this part, we examine the politicians and why many, particularly those in government, are not comfortable with the Human Rights Act as it stands. This Guardian piece by Terry Irvine says just about everything I want to say on the matter, but there is a bit more that I can supply. The Human Rights Act is an easy target. Attacking it is not nearly as controversial as it ought to be, thanks in part to the bad and self-serving media coverage.

There is a fairly straight forward reason why some government ministers, particularly in the Home Office, have animosity towards the Human Rights Act. It does indeed make it more difficult to deport foreign criminals and illegal aliens in some circumstances. These circumstances include those in which the deportation of the individual would be very likely to result in torture or loss of life. It should be pointed out however that there are other laws which reflect our obligations under various other treaties and conventions and which could prevent deportations under similar circumstances and for similar reasons.

The disparaging of the Human Rights Act by cabinet ministers is certainly nothing new and is not confined to conservatives. The Human Rights Act was enacted in 1998 by a fairly new Labour government eager for constitutional reform. Yet just ten years later in 2008, then Labour Justice Secretary Jack Straw expressed his distaste for the Act, describing it as a "villain's charter". This is of course rather interesting given that Jack Straw actually introduced the Act and was its chief architect when he was serving the government as Home Secretary. It is once again the issue of foreign deportation that is the cause for concern (emphasis mine):
He blamed "nervous" judges for refusing to accept assurances from ministers that such removals were in the national interest. 
"I fully understand that [Daily Mail readers] have concerns about the Human Rights Act," he said. "There is a sense that it's a villains' charter or that it stops terrorists being deported or criminals being properly given publicity. I am greatly frustrated by this. Not by the concerns, but by some very few judgments that have thrown up these problems."
Well I for one am very glad to live in a country where the government doesn't always get its way in the courts. This is a sign that things are as they should be. The concerns of government are very different from the concerns of the judiciary. Parliament provides the legislation for judges to apply, and judges apply that on a case-by-case basis using their skill and experience and taking many, many factors into account. The Home Office might feel that the deportation of a person is in the best national interest and give such assurances; however, it is incredibly insulting to the judicial profession to characterise the refusal to accept such assurances as nervousness. Oh and Jack, I think you meant to say "terror suspects" and "suspected criminals". Don't get me started on Jack Straw.

It is not the Human Rights Act that is to blame for the failure to deport terror suspects, but rather the cult of secrecy that prevents terror suspects from being tried openly in the UK. In order to try a criminal suspect in the United Kingdom, evidence must be presented and added to the public record. In some instances it is felt that the evidence is too sensitive to share with the public; often it is the manner in which the evidence was obtained that is the issue. The evidence may have been obtained through covert means that the government does not wish to compromise. Perhaps some evidence was obtained through enhanced interrogation techniques which are not strictly legal. This paper examines the Special Immigration Appeals Act 1997 and its compatibility with European Law. I note the following:
This system [special advocates] is designed to stop material that is sensitive for national security reasons from entering the public domain. The Government argues that it protects the methods of the security services by preventing the discovery of intercepts and undercover operatives, as well as protecting intelligence-sharing relationships with other international intelligence services.
Now, special advocates (security-cleared barristers who do not share sensitive information with their clients) are perhaps acceptable in cases of deportation. They would not be acceptable however in criminal trials because of Article 6 (right to a fair trial). Deportation is hence the easy option for the government. But perhaps the national security concerns are unfounded after all. Perhaps the methods of the security services are in fact already well known to our enemies. It is difficult for the public to gauge the necessity for such secrecy when the information is by its very nature secret. Whatever the case may be, it is clearly not the sole fault of human rights legislation that we are often unable to satisfactorily process terror suspects.

To conclude this posting, I'd like to return to the present day and the attitudes of the current government toward the Human Rights Act. One of the most ridiculous things I've seen recently on this subject was an interview that David Cameron gave to the Andrew Marr show at the start of the Conservative Party Conference in which he restated his agreement with Theresa May that the Human Rights Act should be scrapped and replaced with a Bill of Rights (which comes as no surprise really as he campaigned on it and wouldn't have had the leadership without it). His justification for this position is just laughable:
He also said he wanted to change the “chilling culture” created by the act. He cited an example of a prison van being driven nearly 100 miles to be used to transport a prisoner 200 yards “when he was perfectly happy to walk”. “The Human Rights Act doesn’t say that’s what you have to do. It’s the sort of chilling effect of people thinking ‘I will be found guilty under it’.
The Human Rights Act doesn't actually say that's what you have to do, but what the hell? People are confused about it so let's scrap it. Does confusion about what the Act provides suggest a problem with the Act itself? Why are people so confused about the Human Rights Act? Mr Cameron, please read Part II. Thank you. That Angry Mob article I link to above goes on to explain the real reasons why a prison van had to be driven 100 miles to transport a prisoner 200 yards. It turns out to be, and I am not making this up, due to the contractual obligations with a private transportation company. That's Tories for you.

Friday, October 7, 2011

Who Needs Human Rights? Part II - The tabloids

The tabloids do not like human rights. "Why?" I hear you ask. Because human rights get in the way of a juicy story. Companies such as Associated Newspapers Ltd (Daily Mail) and Newsgroup Newspapers Ltd (The Sun, The News of the World*) have a strong personal interest in seeing the Human Rights Act abolished. This is because these entities so often find themselves in court and subject to an anonymised injunction, a type of temporary gagging order, over some celebrity's Article 8 rights to privacy and family life which the Human Rights Act protects. It is no surprise then that these publications repeatedly misrepresent such cases, labelling the gag orders "super-injunctions" when they mostly are not. An actual super-injunction, as this type of gag order has been dubbed, is more restrictive than an anonymised injunction as it affects even those who are not party to the injunction. Roy Greenslade credits the Guardian editor Alan Rusbridger for coining the term in reference to that paper's inability to report on the Trafigura affair in September 2009.

With a so-called super-injunction, even reporting of the existence and details of the injunction itself would incur contempt. This is in addition to the facts or allegations that the injunction protects. Despite reports to the contrary, super-injunctions are now extremely rare. Only two have been granted since the landmark John Terry case in January 2010, according to a report by Lord Neuberger published in May 2011. Anonymised injunctions on the other hand, such as that obtained against Imogen Thomas and Newsgroup Newspapers Ltd, are quite common. The overwhelming majority of these cases involve blackmail threats. The report does acknowledge however that prior to Terry, super-injunctions were granted far too frequently, and that in some cases there was little incentive for the claimant to advance the case beyond the interim stage (a problem that has now been rectified by the decision in Terry v Persons Unknown). These super-injunctions are pre-trial interim injunctions that are designed to protect the integrity of the court's processes in cases where it is considered that media reporting of allegedly protected information (private or confidential) would obstruct the administration of justice at the pending trial. In paragraph 2.14 of his report, Neuberger sets out the difference between a super-injunction and an anonymised injunction as follows:
[A super-injunction is] an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and, ii) publicising or informing others of the existence of the order and the proceedings (the ‘super’ element of the order).
This is to be contrasted with an anonymised injunction, which is: an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.
In paragraph 2.16 of the report, he goes on to say "The inaccurate use of the term super-injunction to refer to anonymised injunctions, has not only led to a false view that super-injunctions are commonplace. It has also given rise to misconceptions as to how long super-injunctions endure. A claim that a superinjunction has been in place for a number of years adds credibility to the fear that a new form of permanently secret justice has arisen. Where, however, the injunction concerned is merely anonymised, and there is no prohibition on dissemination of the existence of the proceedings and order, such a claim is simply misleading."

Indeed! So you see, media companies hate super-injunctions and they want you to hate them too. In order to achieve this aim, they tend to refer to any case that gags them from reporting on a story as a "super-injunction". They tend to talk up the notion of secret courts interfering with open justice, but in reality the requirement from the Terry decision that super-injunctions and anonymised injunctions must generally contain a return date ensures that these orders are subject to review within a reasonable time frame and cannot in practice become permanent.

Turning once again to the Human Rights Act, we note that this is the United Kingdom's native implementation of the European Convention on Human Rights, a treaty which we are party to as an EC member state. The treaty established the European Court of Human Rights, which entitles any person who feels his or her rights have been violated by a state party to the Convention to bring a case before the Court. Judgements of the Court in favour of the claimant are binding on the States concerned, who are obliged to execute them. Having the Human Rights Act in place greatly improves the efficiency of our justice system by giving British judges a tool for applying the Convention jurisprudence to British cases. Without it such cases would have to be appealed to Europe at great expense and delay. It would be quite difficult, if not impossible, for a claimant to be awarded injunctive relief in time to prevent disclosure were it not for the Human Rights Act and the protection it affords to privacy. I believe this to be the single most compelling reason for newspapers to wish to cast the Human Rights Act in a negative light. Adam Wagner, a barrister specialising in human rights law, has published a series a blog posts detailing numerous incidents of mischievous human rights reporting.

The most recent example of HRA misreporting is the so-called "CatFlap" row which I wrote about in Part I. I can give no better example of this than the frankly scum-encrusted publication known as the Daily Mail. This was their lead story yesterday (6th October), claiming that in fact the judgement of which they had obtained a copy showed that Theresa May's statement was correct and Ken Clarke's was incorrect. As Adam Wagner once again demonstrates quite capably, this is complete and utter rubbish. [Oh, and as an aside, isn't it so classy of the Mail to reveal that not only was the Bolivian immigrant in question a shop lifter (though he'd not been charged), but he was also *gasp* gay! Completely irrelevant to the case of course, but sure to plant the right sort of suggestions in the mind of the typical Daily Mail reader.]

So yes, as far as the Mail are concerned (without providing any sources of course) the "Judge DID rule [the] migrant's pet was a reason he shouldn't be deported". The caption under a photo of the Home Secretary reads "Vindicated: Theresa May's comments on a man allowed to stay in Britain because of his cat have been proven correct". And they of course lay the blame with Article 8 and the Human Rights Act even though ultimately these had nothing to do with the decision to grant exceptional leave to remain. It is hard to understand how a mainstream publication can so repeatedly and so deliberately mislead its readers with complete impunity. I suppose that's one of the reasons we've gotten to the point where regulation of the press is looking very likely. But that's not going to help when politicians are also deliberately misleading us about what the Human Rights Act does and does not provide, which I will discuss in Part III.

*now defunct  :)

Thursday, October 6, 2011

Who Needs Human Rights? Part I - #CatFlap

Boy this CatGate / CatFlap thing has really gotten out of hand, hasn't it? In case you hadn't heard, a quick recap: Two days ago (4th October), the Home Secretary Theresa (I am not making this up) May gave a speech at the Conservative Party Conference in Manchester in which she criticised the Human Rights Act because of the difficulties that can arise from it when the Home Office wishes to deport someone. In this speech she made the following claim (emphasis mine):
"We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat."
The final example turns out to be one of the oft recycled myths propagated by opponents of the Human Rights Act, as Adam Wagner of The Guardian explains. Another person who realised that the Home Secretary's statement had no basis in fact was Justice Secretary Ken Clarke, who told the Nottingham Post that same day:
"It's not only the judges that all get furious when the home secretary makes a parody of a court judgment – our commission who are helping us form our view on this are not going to be entertained by laughable, child-like examples being given."
This has predictably erupted into a political row between the two ministers, one of whom has been forced to apologise. That one unfortunately is the one who, as it turns out, was correct. The deportation of this individual was not disallowed because of his relationship with a cat, but because of his strong cohabiting relationship with a British citizen, evidence of which was only partly made up of their joint ownership of a cat. The unnamed appellant in this immigration case was represented by solicitor Barry O'Leary of Wesley Gryk Solicitors LLK, who felt impelled to issue a press release today clarifying the case. In his release, O'Leary states that his client was "not a foreign national prisoner nor had he been charged with or convicted of any offence." It turns out that ultimately the appellant was granted exceptional leave to remain in the United Kingdom against the objections of the Home Office because that office failed to apply a policy that had been withdrawn but which was in effect for the period of time under consideration in the case. That policy is DP3/96 of the UK Border Agency, which as O'Leary describes it stated that "individuals who had been in a relationship with a settled person for in excess of two years, and no immigration enforcement action had been take against them, could be granted exceptional leave".

It is true that the first appeal to the Asylum and Immigration Tribunal of the Home Office consideration was on Article 8 grounds (right to family life) and heard much evidence of the strong family ties of the appellant with his partner and that this evidence included some mention of their jointly owned cat; however, that fact alone was not the reason for the successful appeal. In the original decision by Immigration Judge Mr J R Devittie, he states in paragraph 12 (emphasis mine, hat tip to for the PDF of the judgement):
12. I do not consider that it would be reasonable for the appellant’s partner to move to Bolivia to live with him. There are several considerations that justify this conclusion. The appellant’s counsel addressed these matters in his submissions. The most important perhaps is the condition of the appellant’s partner’s father. The evidence of this appellant’s partner and his siblings is that their father is in a condition that he is not expected to recover from. They stated that a family decision has been taken to give their father collective support as a family and that support that the appellant’s partner would give is an integral part of that effort. It would be distressing to the appellant’s partner’s [sic] if he were to have to leave the United Kingdom having regard to his father’s condition.

The original appeal was granted on Article 8 grounds (ECHR as reflected in the Human Rights Act); however, in paragraph 17 the judge goes on to "take into account that the appellant appears to meet the requirements of policy DP3/96. In particular, his relationship and cohabitation predates enforcement action by two years."

The original appeal was granted on Article 8 grounds, however the case was ultimately decided by Senior Immigration Judge Gleeson in a further appeal. In his three page decision (ht David Allen Green), Judge Gleeson found that Devittie had acted properly in allowing the appeal because contrary to the arguments presented by the Secretary of State, DP3/96 did in fact apply, a position that was accepted by the Home Office Presenting Officer. Gleeson's decision supersedes Devittie's and so the Human Rights Act, though initially cited, played no part in the granting of leave to the appellant.

Why is this case important? It is important because it is only one of a number of cases that have been misreported in the media and by politicians in recent years with the aim of disparaging the Human Rights Act, as I shall explore in Part II.