Can Article 8 be ‘overridden’?
The BBC is today reporting that Theresa May intends on Monday to introduce new guidelines telling judges what to think about Article 8 of the European Convention on Human Rights. Article 8 is the right to a private and family life and is worth quoting in full:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. 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.
May is quoted as stating that Article 8 is not absolute and can be overridden to prevent crime, protect national security and safeguard the rights of others:
“In the interests of the economy, or controlling migration or public order, those sort of issues, the state has a right to qualify the right to a family life.”
As anyone can see, she is largely right. Article 8 is not absolute, unlike some other human rights such as Article 3, the right to freedom from torture. The right to a private and family life must be balanced against other factors. Where she is wrong is in suggesting that the State has a right to qualify Article 8. This is fundamentally and misleading because Article 8 is already a qualified right. It is part of its nature that it is qualified. The State does not need to do anything to qualify it, and to suggest otherwise is to misrepresent the nature of human rights for political purposes and pretend that something can be done when in truth it cannot.
Striking a difficult balance between the right to a private and family life and the very important competing considerations is exactly what immigration judges do, day in, day out. In the vast majority of cases (between 2 and 8% according to JCWI) the judge comes down against the foreign criminal. Only in pretty small minority of cases does whatever private or family life has been established in the UK take precedence over other considerations.
Assuming that all this is not mere political gumph to please the anti-human rights lobby, what May is really suggesting is simply removing Article 8 or, to put it another way, making the competing factors absolute and binding. When the courts reach a decision on Article 8 (and this supposedly applies to the UK Border Agency as well) they have to undertake a five step legal assessment:
(i) Will there be an interference by a public authority with the exercise of the applicant’s right to respect for his private or family life?
(ii) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(iii) If so, is such interference in accordance with the law?
(iv) If so, is such interference 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?
(v) If so, is such interference proportionate to the legitimate public end sought to be achieved?
This assessment is mandated by the House of Lords decision in Razgar  2 AC 368 and by innumerable Strasbourg judgments. There is no legal way round the assessment. May wants judges always to answer ‘yes’ to question (v) in every case, but in law they cannot. Our judges remain independent and must carry out an independent assessment. The only ways to achieve what May wants are:
1. Modify the Human Rights Act
2. Withdraw from the Council of Europe
3. Remove access to the courts, or
4. Do away with an independent judiciary.
From the language she uses, it is disturbing to think a major politician, the Home Secretary no less, is actually advocating the last of these options. Unfortunately, there is a precedent for legislating to tell judges what to think: the appalling section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 was a similar attempt in another context. In any other area of law than immigration this would have caused a huge outcry for not just undermining but explicitly abrogating the independence of the judiciary, but there are few in or outside Parliament who are willing to stand up for asylum seekers or immigrants. Still less for foreign criminals or for their spouses or children.
There may be short term political benefits but in the longer term this sort of politics is very dangerous.