Judges reined in on us­ing hu­man rights laws to block de­por­ta­tions

The Sunday Telegraph - - Front Page - By Ed­ward Mal­nick

JUDGES will be told what con­sti­tutes “in­hu­man or de­grad­ing treat­ment”, un­der plans be­ing con­sid­ered by Priti Pa­tel to curb the use of hu­man rights laws to block de­por­ta­tions.

The Home Of­fice is draw­ing up a le­gal def­i­ni­tion in­tended to re­strict the abil­ity of judges to make “sub­jec­tive” de­ci­sions about the con­di­tions po­ten­tial de­por­tees would face in for­eign coun­tries. The Fair Bor­ders Bill would de­fine “in­hu­man” or “de­grad­ing” in cases in which for­eign crim­i­nals or failed asy­lum seek­ers say they would suf­fer from such treat­ment if they were de­ported to a for­eign coun­try.

Ar­ti­cle Three of the Euro­pean Con­ven­tion on Hu­man Rights states: “No one shall be sub­jected to tor­ture or to in­hu­man or de­grad­ing treat­ment or pun­ish­ment.”

Se­nior Tories say the clause de­rived from hor­rors per­pe­trated by the Nazis dur­ing the Sec­ond World War, and has since been in­ter­preted too widely by judges and abused by those seek­ing to avoid de­por­ta­tion from the UK.

The move comes af­ter the Home Sec­re­tary warned of “le­gal and prac­ti­cal prob­lems” with the “bro­ken” asy­lum sys­tem.

In her Con­ser­va­tive Party con­fer­ence speech, Ms Pa­tel pledged to in­tro­duce a new sys­tem that was “firm but fair”, say­ing: “We will stop the abuse of the sys­tem … we will stop those who come here il­le­gally mak­ing end­less le­gal claims to re­main in our coun­try at the ex­pense of the Bri­tish pub­lic … we will ex­pe­dite the re­moval of those who have no le­git­i­mate claim for pro­tec­tion.”

Judges in UK courts and the Euro­pean Court of Hu­man Rights have gen­er­ally in­ter­preted the mean­ing of Ar­ti­cle Three on a case-by-case ba­sis, with the def­i­ni­tion of in­hu­man or de­grad­ing treat­ment de­pend­ing on all the cir­cum­stances in each case.

A White­hall source said min­is­ters wanted to re­move “am­bi­gu­ity” and “re­duce the scope for judges to an­swer philo­soph­i­cal ques­tions”. A sec­ond White­hall source con­firmed that the plan was “be­ing dis­cussed”, but added: “A de­ci­sion hasn’t been made.”

Un­der the plans, the Fair Bor­ders Bill, which will over­haul the cur­rent asy­lum sys­tem, would in­tro­duce a le­gal clar­i­fi­ca­tion of Ar­ti­cle Three. Be­fore en­ter­ing gov­ern­ment, Do­minic Raab, the For­eign Sec­re­tary, in­sisted the in­ter­pre­ta­tion of Ar­ti­cle Three has “ex­panded too far” through judg­ments at the Euro­pean Court of Hu­man Rights.

He added that the Hu­man Rights Act, which al­lows UK courts to ap­ply the ECHR in this coun­try, had “made the sit­u­a­tion worse for Bri­tain”.

David Cameron’s Im­mi­gra­tion Act in

2014 in­tro­duced equiv­a­lent curbs on the use of Ar­ti­cle Eight of the ECHR – the right to fam­ily life.

Mr Cameron’s leg­is­la­tion re­quired judges to weigh up the “Bri­tish pub­lic in­ter­est” against Ar­ti­cle Eight rights.

Ms Pa­tel’s changes would risk putting the UK on a col­li­sion course with in­ter­na­tional law.

One lawyer said that the Gov­ern­ment would have to de­cide how it would re­spond if in­di­vid­u­als took their cases to the Euro­pean Court of Hu­man Rights in Stras­bourg, which could then or­der a tem­po­rary halt to any de­por­ta­tions its judges ex­am­ined.

In Au­gust, a Home Of­fice-char­tered plane with 23 mi­grants due to be de­ported on board was grounded by suc­cess­ful last-minute le­gal ac­tions by hu­man rights lawyers.

At the time, a Home Of­fice source said: “The Bri­tish peo­ple will be out­raged that de­spite her best ef­forts the Home Sec­re­tary can’t legally re­turn failed asy­lum seek­ers to Spain thanks to spu­ri­ous grounds spun by ac­tivist lawyers.”

Last month, The Sun­day Tele­graph re­vealed that the Gov­ern­ment had been con­sid­er­ing opt-outs of the ECHR in ar­eas where judges were seen to have “over­reached”.

Plans un­der dis­cus­sion also in­clude pro­tec­tions for Bri­tish sol­diers against claims re­lat­ing to over­seas op­er­a­tions.

A sur­vey of 1,500 Con­ser­va­tive vot­ers found that 54 per cent would sup­port the UK curb­ing Euro­pean hu­man rights laws af­ter Brexit, while 12 per cent would op­pose such a move.

The Gov­ern­ment’s plans have set up a new con­fronta­tion with the EU, which has been de­mand­ing that Bri­tain com­mits to re­main­ing signed up to the Euro­pean Con­ven­tion on Hu­man Rights and keep­ing the Hu­man Rights Act, which al­lows Bri­tish judges to ap­ply the ECHR, as the price of fu­ture “law en­force­ment co­op­er­a­tion” with the bloc.

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