Who needs it?
What use is the human rights court, says former human rights minister
“What utility is there in the UK being bound any more into the Strasbourg court,” Jack Straw asked in a letter to The Times at the weekend. “Not much” was the answer he gave.
The former home secretary seemed to be suggesting that the UK should keep the Human Rights Act 1998 — which he had piloted through the House of Commons as a Labour MP — while no longer being required to follow rulings by the European Court of Human Rights in Strasbourg.
This struck me as more than a little curious. For one thing, the Human Rights Act requires courts in the UK to take into account decisions by the Strasbourg court. Our own judges would have to follow decisions taken by a court whose rulings we could no longer influence.
More fundamentally, the human rights convention requires the UK to “abide by” the final judgment of the Strasbourg court in any case to which the UK is a party. If the UK was not willing to do so it could not remain a signatory to the human rights convention. And if it left the convention it would surely have to leave the 46-nation Council of Europe, which supports the court.
The UK would then join Russia and Belarus as the only countries that are not part of any pan-European body. How would that go down with the prime minister’s coalition of the willing?
I was invited to make some of those points on Radio 4’s PM programme yesterday, ahead of an interview with Straw. The sequence, which you can listen to here, runs from 35:08 to 46:50.
Leaving or staying?
Straw made it clear that he didn’t really want the UK to leave the human rights court or the Council of Europe. The former home secretary and justice secretary was merely trying to stop the court developing the law in a way that he didn’t like.
“It has become a very expansive and activist court,” he said. “It has not just stuck to interpreting the text as it was originally laid down.”
Straw hoped the court would not make it necessary for the UK to leave the human rights convention:
I don’t want to get there yet and we with a bit of luck will manage to avoid it. But what is required… is for Strasbourg to wake up to the damage they’re doing towards themselves by the superfluous, unprincipled, expansive views and judgments they come out with.
Such rulings do indeed exist — but the only example Straw gave during his recorded interview was the court’s decision in 2005 that prisoners were entitled to vote. He claimed that MPs had decided on an all-party basis to ignore the judgment. That had not led to the UK being expelled from the Council of Europe, he said.
Straw had apparently forgotten that the administrative changes to prisoner voting rights that the Conservative justice secretary David Lidington announced in 2017. Though these were diluted almost to homeopathic levels, they were — as had been agreed in advance — enough to satisfy the Council of Europe’s committee of ministers, which supervises the enforcement of judgments. Despite the long delay, this was regarded as acceptable by all concerned. Since the UK had finally abided by the court’s ruling, the question of expulsion had not arisen.
Chicken nuggets
Earlier, Evan Davis asked me about a couple of cases that had been relied on by those seeking to undermine the human rights convention. A quick glace at the published rulings made it clear that the outcomes were rather different from the impressions given. And both were decided by a UK appeal tribunal, not the Strasbourg court.
The first had been reported in the Independent with this headline and subhead:
Criminal’s deportation case halted over son’s dislike for chicken nuggets
A tribunal ruled it would be “unduly harsh” for the 10-year-old son to return to Albania owing to food sensitivities
Although the first-tier tribunal had indeed decided that it would be unduly harsh for the son if his father was deported — whether the boy went with his father to Albania or stayed with his mother in London — the Upper Tribunal found no reliable evidence to support the first-tier judge’s decision.
As for the family’s claim that the boy’s apparent special needs meant he would not eat the type of chicken nuggets that were available abroad, the Upper Tribunal was “not persuaded the addition of this sole example approaches anywhere near the level of harshness for a reasonable judge to find it to be ‘unduly’.”
The first-tier judge was found to have acted unlawfully and the Upper Tribunal sent the case back for a different first-tier tribunal to decide whether the consequences of deportation would be unduly harsh on C.
Unless a lot more evidence has recently emerged, it seems very unlikely that the right to respect for family life will prevent Klevis Disha from being sent back to Albania.
Spicy food
The second story I was asked about appeared in The Times under this headline and subhead:
Illegal immigrant claims husband would find Caribbean too hot
Lynthia Calliste delayed her deportation with the argument, one of dozens heard in tribunals as the appeals backlog hits record levels
As the newspaper made clear, Calliste’s attempt to challenge her removal was dismissed by the Upper Tribunal. It had also been dismissed by the first-tier tribunal judge, though for the wrong reasons.
“It was suggested,” said Upper Tribunal Judge Blundell, that Calliste’s husband “would be unable to tolerate the cuisine in Grenada”. But, added the judge, his response to a question about his wife’s Caribbean chicken was frank. When the Home Office representative asked him whether he ate it, he simply shrugged and said he did. In addition, there was no evidence to suggest that temperatures in Grenada would be particularly difficult for him.
It was true that Calliste’s spurious arguments had held up her removal. But so, it seems, did the error of law made by the first-tier tribunal judge.
Comment
It is not surprising that people wanting to stay in the UK put forward arguments that have little chance of success. But there is no justification for giving the impression that experienced tribunal judges are taken in by patently spurious arguments.
Of course, there are cases that first-tier tribunal judges get wrong. That’s why we have a system of appeals. And it is also true that the United Kingdom has taken on treaty obligations that limit parliament’s freedom to legislate. But the best way to keep these limits in check is to play an active part in the proceedings — not to threaten the judges or walk off in a huff when a court develops the law.
In other words it is misleading and partisan media reporting that is causing political and social unease
The report in the Independent (and elsewhere) was sensationally headlined, but was in fact a balanced report of the case before an Upper Tribunal, which was referred back to another Tribunal judge, The report stated "But an immigration tribunal ruled it would be “unduly harsh” for his 10-year-old son, known as ‘C’ in court documents, to return to Albania with his father owing to food sensitivities, sensory issues and difficulties communicating emotions. The only example listed in court documents was the young boy’s aversion to eating “the type of chicken nuggets that are available abroad”.
Was the original Tribunal decision an isolated case? Other sensational headlines from Upper Tribunals suggest it was not entirely isolated.
So the more general question is, how frequently does an Upper Tribunal refer back a case? Why does the process not simply allow the Upper Tribunal to make a decision? And dare one ask, without raising the ire of Lady Carr, is there a problem with the judgement of some Tribunal judges?