Tag Archives: deportation

Should Government Intervene in the Judicial Process? — Home Secretary criticises judges on application of right to family life

Theresa May stated today that judges must follow stricter rules on the application of human rights laws in relation to immigration and deportation of criminals. She also claimed that Article 8 of the European Convention on Human Rights (ECHR) – the right to family life, is not an absolute right and must be weighed up against public interest. The cross government agreement approved by Ken Clarke encourages judges to interpret Article 8 in a way that would put the state before the right to family life.

On the BBC’s Andrew Marr show the Home Secretary revealed plans to tighten immigration laws and to prevent criminals using Article 8 to avoid deportation.  The UK is introducing “financial independence” rules which will make it more difficult for tens of thousands of families to bring relatives into Britain. When the measures come into force next month, individuals must earn at least £18,600 to bring in a non-EU  spouse into the UK and additional income for each child. May is emphasising that this will prevent foreign partners from “relying on benefits” for when they settle in the UK. She claims that these moves seek to largely reduce net migration as well as ensuring integration and economic independence of immigrants.

She also referred to plans to introduce “Britishness tests” which will consist of English language as well as a “life in the UK” tests. Marr pointed out the challenges that may arise in relation to Article 8 ECHR, however May argued that states have the ability to “qualify” the right to family life i.e. apply their own interpretation. She argued that the courts have not been correctly qualifying that right “not even in the way stated by the Convention”. Ultimately she is pressuring judges to enforce more stringent legal controls on the immigration of relatives of British residents as well as making it easier to deport foreign criminals.

The Home Secretary stated that she will outline the rules and guidelines in qualifying the right in the courts. “[I am going to] set out the rules that say this is what parliament, this is what the public, believe is how you balance the public interest against the individual’s interest” According to May the ECtHR has actually been tougher than some English courts in this area, she claimed that in many European cases judges differentiate between a foreign nationals who have been in the country illegally  or legally.

Her proposal for tighter rules emphasises the governments view that the right to family life doesn’t necessarily take precendence over other factors. The government plans to introduce legislation if the judges do not follow the motion set out by the Commons. She warned: “I would expect that judges will look at what parliament will say and that they will take into account what parliament has said. If they don’t then we will have to look at other measures and that could include primary legislation.”

It is unclear how exactly the government is to assess whether or not judges have taken on board the government’s wishes. For May to publicly criticise the work of judges for not being in line with the governments policies seems a  little worrying as surely judges should be expected to act within the framework of the law rather than according to the interests of the government. Lawyers have stated that implementing legislation to amend the human rights act or to change its proper application would most likely be contrary to the convention.

Critics have argued that it is not the job of Parliament to interpret the law but that of the judges. May’s comments on the Marr show could be seen to be labelling immigrants as benefit scroungers or criminals who are abusing human rights laws such as Article 8 in order to stay in the country. The governments intervention on the current approach taken by judges seems both unnecessary and inappropriate. While many judges inevitably reflect public opinion to a degree they should primarily base their judgments on the law. Government has no place to enforce their political agenda onto court decisions, and judges should act in the public interest to uphold a fair and legitimate legal system that upholds human rights.

Consequences of Closed Material Procedures

The proposed ‘closed material procedures’ (CMPs) in the governments Green Paper seems not only alarming but also hugely misguided. The Green Paper proposes that these secret proceedings would be extended to any civil cases. CMPs would take place without the presence of the defendant and without their knowledge of the charges against them. In these closed procedures, ministers would be able to order hearings to be conducted in secret and claimants would be denied access to government evidence or witnesses.

While the absent defendant would be represented by a barrister in court, there may be no or little contact with their client. This would allow the material and evidence in the trial to be effectively unchallenged in court. To add to the secrecy and absurdity of the prospect of these proceedings,  even the final judgment could be wholly or partially withheld, allowing the convicted individual to be deprived of any information regarding his conviction.

Binyam Mohammed

The proposal comes after a number of actions were brought against intelligence agencies by former terrorist suspects, such as Binyam Mohammed, to the embarrassment of both government and the security services. Mohammed, an ex Guantanamo detainee and a British citizen, claims he was tortured while in custody, in the US amongst other places and accused the Britain of being complicit in this. Rather than disclosing intelligence related material to him and other former detainees, the British government paid him £1m in compensation.

Lord Carlile

In response to these proceedings against the government, it appears that high profile figures such as Sir Malcolm Rifkind, chairman of the parliamentary intelligence and security committee (and MP for Kensington), along with Lord Carlile QC are supporting CMPs as a viable a solution to such problems. The Green Paper proposes to extend the use of CMPs to civil claims. Lord Carlile criticised the current system as being insufficient in dealing with civil cases regarding national security, he claimed that payouts such as that received by Binyamin Mohammed was not an acceptable way of settling civil claims. He argued that the State should not be put in a position of having to choose to pay compensation to a claimant who may be the wrongdoer.

CMPs would take away the transparency of court procedures and give greater powers and increased secrecy to the workings of the security services and the government. The key issues here are accountability and transparency of the legal system. In its response to the Green Paper published on the HM website, the human rights group Reprieve gave a damning criticism of these proposals. They stated that this paper is simply asking the wrong questions, by seeking to drastically reduce the level of accountability of the government and intelligence services rather than attempting to improve these areas.

The response by Northamptonshire Police, welcomed the undisclosed sharing of secret information between states, however it also raised concerns over the misuse of CMPs and their human rights implications.

“The impact of the overuse of CMP’s would be to damage the UK reputation of a free and fair democracy. There are also considerations to be made pursuant to Article 6 of the European Convention on Human Rights – namely, the right to a fair trial”

Malcolm Rifkind

However  Malcolm Rifkind argues that the protection of sensitive material is essential to the co-operation with foreign intelligence agencies, and that intelligence sharing will be endangered if these exchanges are exposed in court. He claims that the sharing sensitive material with defendants and the court threatens the the future intelligence co-operation between states, by undermining the principle of confidentiality. Therefore publication of intelligence material would harm our national security.

It is not unusual for government agencies to support legislation infringing civil liberties and human rights in the name of national security. This legislation allowing civil judgements to be made behind closed doors, increases their powers at the expense of fairness and transparency. One of the most notable pieces of legislation in the UK regarding secrecy in the name of protecting national security is the Special Immigration Appeals Commission (SIAC). SIAC deals with appeals for foreign nationals facing detention, deportation or exclusion from the UK, often relating to alleged terrorism offences. It’s hearings and rulings are not fully revealed to the public nor to the appellant, this procedure has been widely criticised for it’s fairness and legality. To extend such secret procedures to civil matters is somewhat distrurbing.

Lord Carlile and Malcolm Rifkind stress the need for CMPs in the interests of national security, while this argument has been widely criticised by many of the respondents to the Green Paper. The response from the Special Advocates, who are appointed to work under SIAC in closed procedures and were proposed to act in CMPs, was particularly telling. They stated that no reason has been identified in the Green Paper to justify the introduction of such sweeping power.

“It is one thing to argue that, for reasons of national security, the unfairness and lack of transparency inherent in CMPs should be tolerated in specific areas…It is quite another to suggest that Government Ministers should be endowed with a discretionary power to extend that unfairness and lack of transparency to any civil proceedings, including proceedings to which they are themselves party.”

The apparent need for CMPs seems to be an attempt by the government to extend it’s powers in the under the guise of national security. The role that secrecy plays in the justice system appears to be solely to the advantage of the security services rather than in the interests of justice.  The Green Paper raises both grave procedural and practical concerns, whilst presenting a relatively unrealistic proposal. Transparency and accountability are essential elements of the justice system in England and Wales, by conducting trials in secret and in the absence of the defendant, these proceedings take away core features of a fair trial. Expanding the use of CMPs would also be debilitating for the practice and progression of common law, as these hearings would be prevented from being reported. This would deny lawyers from accessing precedents arising from these procedures, making them only available to a few existing special advocates.