The government is poised to cut down the reach of human rights law, paving the way for easier deportation of foreign national prisoners.

The government’s announcements in the wake of the riots that non-British citizens convicted of riot-related offences will be deported ‘at the earliest opportunity'[1] is part of a new attempt to strip foreign national prisoners of the minimal protection against double punishment afforded them by international human rights law. And already, moves are in progress among foreign ministers of the forty-seven signatory states to the Human Rights Convention to shift power from the European Court of Human Rights to the states’ own domestic courts in matters of immigration and deportation. From November, the UK chairs the Council of Europe – and it will seek to use its chairmanship to push ahead with the reforms, which would allow the UK to adopt a much tougher line on the human rights criteria for deportation – without the oversight and corrective influence of the European Court.

Human rights court to lose powers?

The adoption of the Human Rights Convention in 1950 and the setting up of the European Court of Human Rights were arguably the greatest achievements of the Council of Europe. But justice secretary Ken Clarke has announced that he intends to use the UK’s chairmanship of the Council to ‘redraw the relationship with national courts’ and reduce the role of the European Court. And home secretary Theresa May is to argue for a ‘new definition’ of article 8 of the Convention, which protects the right to family and private life, which will ensure that foreign criminals cannot block their deportation.

The groundwork for such changes has already been laid, in proposals for reform to deal with the huge and growing backlog of cases to the Court. In April, a High Level Conference of the Council of Europe’s Committee of Ministers met in Izmir, Turkey, following a meeting in Interlaken, Switzerland, which adopted streamlined screening procedures. The declaration adopted in Izmir went much further, leaving open the possibility of charging fees to those seeking to apply to the Court, and erecting further procedural obstacles, which drew strong opposition from hundreds of civil society groups and international NGOs, fearful that the changes would restrict access to the Court. An ominous feature of the Izmir declaration is the clause noting that the Court was not ‘an immigration appeals tribunal’ and should not intervene in asylum and immigration cases except in ‘the most exceptional circumstances’. This followed a speech by Clarke at the conference, in which he argued that domestic courts and parliaments should be given much more freedom to interpret and apply the Convention in their own way.

Double punishment

The idea that foreign national prisoners enjoy special rights and protections is laughable. But in the UK, the fact that deportation of foreign national prisoners is a double punishment which is frequently more severe and devastating than any prison sentence, has been obscured in the right-wing and tabloid clamour against their ‘human rights’, which has already led to legal changes in the past five years which make it more difficult to resist deportation,[2] and to greater willingness among judges to defer to Home Office assessments of the need for deportation in individual cases.[3] The hostility to the Human Rights Act and the campaign to dilute or abolish it, and to prevent foreign national prisoners relying on article 8 to prevent their deportation, rests on a number of misconceptions and misrepresentations.

As eminent lawyer Geoffrey Bindman recalled in an important recent defence of the Act,[4] the Convention is not some nasty foreign invention. Its key drafters were British, and Winston Churchill was a strong supporter. Opponents of the Act frequently cite the blocking of the deportation of Learco Chindamo (killer of headmaster Philip Lawrence) as an example of the ‘madness of human rights’. But what stopped the deportation of Chindamo, a young Italian national, was EU free movement law, which stipulates that only those EU nationals who present a serious current risk to public order or national security can be deported. It had nothing to do with human rights law.

And contrary to tabloid rants, article 8 gives no absolute guarantees against deportation. It merely requires decisions which separate families to be for the right reasons – such as preventing crime or disorder, or protection of the rights of others – and to be proportionate to those aims. This means that judges have to consider the effect of deportation on innocent family members, as well as the effect of not deporting on the public.

Proposal to sideline family life

But in July, Dominic Raab MP proposed an amendment to the UK law which would stop judges having the power even to consider such matters as family ties, or how long someone had lived in the UK. This would mean that someone with thirty years’ residence, with children and grandchildren born here, could be deported for, say, an offence of theft or assault, on top of serving a prison sentence, with no regard at all to the effect on the family or the likelihood of reoffending. At present, such an amendment would be incompatible with the Human Rights Convention and with the European Court’s case law – which is why the government is arguing in Europe for the right to interpret the Convention in its own way, without interference by the Court.

Protection against torture under threat?

Even more worrying is the government’s repeated argument to the Court that it should be able to deport terrorist suspects even where there is a real risk of torture. Thanks to the recent revelations about British involvement in extraordinary rendition to Libya,[5] we know that this happens anyway, under the cloak of secrecy. But for several years, the government has sought to make the process legal by getting the European Court to endorse the return of those it considers really serious threats to national security. The Court has always said no: the ban on sending people back to torture is absolute. But the Court might lose the power to intervene in deportations to torture, if the government’s attempts to reduce its jurisdiction in favour of national courts and parliaments bear fruit.

Any attempt to restrict the jurisdiction of the Court would need the approval of the Council’s Parliamentary Assembly and would have to be drafted as a Protocol. But many member states’ ministers support the British attempt to dilute the Court’s jurisdiction.[6] There is real concern that, in the absence of a strong and European-wide campaign, the diminishing protection against violation of migrants’ human rights will be reduced to vanishing point.

Related links

View the IZMIR Declaration