Archive for April, 2012
As widely reported in today’s press, there is a conference currently going on in which the UK hopes to secure what the Government says will be a big breakthrough in Human Rights law, and to stop the apparently endless tidal wave of attempts to use Human Rights legislation to delay cases, such as deportations, or to attach human rights principles to override other areas of law.
All indications are that some kind of deal is likely to be reached, which is being termed the “Brighton declaration” and which will be intended to ensure that only the most important cases and principles ever reach the European level and that national state courts decisions on human rights issues will stand.
This is clearly common sense, since what has happened is that cases which are lost in National Courts are now almost routinely pushed up to the European level and there is an absurd backlog of some 150,000 cases waiting for European level adjudication. frankly, short of massively expanding the European court for Huamn Rights, most of these cases are never going to get listed.
The potential problem, and we wait to see what the declaration will say is that, whilst there are over 4,0000 UK cases waiting at European level, this may not be the nub of the issue. The European courts have only rules against the English courts in a handful of instances, but it’s the uncertainty and possible bad PR of ignoring the possible appeal an, for example, in the case of Abu Qatada being seen as in breach of Eiropean law by deporting him before all avenues of appeal are exhausted, that creates the biggest issue perhaps.
It also seems to us that because the threat of being overturned has been high in Judge’s minds, we now have lots of precedents of Human Rights law being successfully used under English law, and until some of the absurd decisions made are perhaps overturned in the future, we are still stuck with a system where human rights arguments, such as a right to family law where tenants are behaving outrageously preventing their eviction are still utilised.
So, in summary, it appears that the laws stay the same, the UK is still bound by them, but that some kind of deal may be struck where it becomes clear that that, except in cases where there is clearly an important principle at stake (quite how that will be defined will be interesting to see) there may be some much tighter rules about being able to appeal cases up to the European level.
No doubt all will become clearer (hopefully) in the next few days.
PRESSURE ON JUDGES TO DEAL WITH ‘RIGHT TO FAMILY LIFE’ EXCUSE
Although the principles developed under the European Convention on Human Rights were aimed at ensuring individuals had basic, protected rights (like the right to family life), recent media coverage has highlighted the fact that a number of foreign criminals are now using these rights as excuses to avoid being deported. These situations are an outright abuse of human rights law, and in particular, Theresa May has been working on ensuring these abuses are stopped.
Theresa May has spoken out publicly about her outrage of the ECHR abuses, and has plans for new immigration laws to be in place by the summer. These new laws aim to prevent foreign criminals from being able to use, amongst other excuses, the ‘right to family life’ argument. Her plans have made it absolutely clear that those that cannot support themselves, or have a committed a crime, will not be allowed to stay in the country.
Her stance on this subject has been further evidenced by her actions in relation to Abu Qatada, the cleric whose deportation to Jordan was inhibited at the beginning of this year by the European Court of Human Rights. She stated, “the public want him to be deported, I want him to be deported”. She has been known for her strong stance on immigration, and believes that the new immigration law changes will obtain support from politicians and the public alike, regardless of their political bearing.
Current government dislike has inflated due to recent issues concerning tax changes, the Budget and claims that MPs fuelled panic over petrol shortages. It is therefore likely that this latest move by Theresa May will boost support for the government. Immigration issues were identified in a number of political surveys last year as being a top priority for the public, and so witnessing changes in government policy that aim to positively tackle this issue will be likely to gain support for the government.
The changes to the use of Article 8 Right to Family Life will be emphasised to judges, highlighting that the Right will not have the power to stop the deportation of someone who has either committed a crime, not complied with immigration law or who cannot support themselves in the country. This will be because Ministers are changing immigration law around the end of July so that the right to family life argument can only be used in exceptional and rare circumstances. Previous dismay has been brought to light over the judges’ failure to use the Article 8 argument properly, ignoring in-built provisions which include the prevention of disorder or crime as a legitimate reason for deportation.
This change to immigration law is needed after Labour passed the UK Borders Act 2007, which greyed areas concerning deportation by allowing an exemption from deportation if there had been a breach of human rights. This change will therefore attempt to make the issue clearer.
In the current economic climate, where unemployment is at a record high, and the general public are worried about their jobs and the economy, the country cannot afford to allow people to stay here who either cannot support themselves (and are therefore a drain on the public resources), or who are committing crimes/not complying with immigration law, and yet are using Article 8 as a way to remain in the country. If Theresa May’s efforts succeed therefore, many would welcome the change.
The increased concerns about terrorism, following the New York, London and Madrid events have left us with an important dilemma of balance between the police powers to actively monitor our personal data and our very basic human right to lead private uninterrupted lives. The recently revealed information, under the Freedom of Information Act, suggests that not only are the authorities using active monitoring to tackle terrorism but also access our correspondence and other personal records to fight more common types of crime.
The report reveals that between 2007 and 2010 only 0.15 per cent of applications for access to communications data were rejected by the South Yorkshire Police forces. By comparison, the Kent Police rejected over 30 per cent of all applications made by the officers. Interestingly, the application process for all forces is evaluated on a regular basis by two bodies, the Office of Surveillance Commissioner or the Interception of Communications Commissioner Office. This raises an important question as to why there are significant differences in rejection levels between the local police units if the process is handled by officers accredited by the same institutions.
The Big Brother Watch, a well-known organisation defending civil liberties and privacy, has expressed concerns for the Home Office’s plans to further expand police powers and cover even more personal information. Nick Pickles from the Big Brother Watch stated that the current regime is highly dysfunctional and lacks of transparency. He recommends that before the government grants more powers to the police and intelligence agencies, the current legal framework should be thoroughly revised and assessed.
On the other hand, officials from the Interception of Communications Commissioner state that the procedures are adequate with the communications data being obtained lawfully and in full compliance with applicable statutory measures. They also believe that the current assessment process allows for impartial and objective decision-making in respect of individual applications.
The proposed new powers include powers to access real-time data related to phone calls, electronic communications, social media and web browsing histories. With increased campaigning against lack of consultation with the public, it has been announced that further consultation will be carried out before the new laws take effect. In addition, the Metropolitan Police has also expressed interest in real-time location tracking technology already utilised by the FBI in the US. The technology is based on a device known as IMSI catcher. The catcher allows its users to locate particular mobile phones in a targeted area. The catcher can not only track movements in real-time but also fully intercept short messages, phone calls and other data such as emails on the phone. Alarmingly, the FBI can rely on the technology without a court order. This brings a significant risk of the IMSI catchers being used for purposes other than those authorised.
The society needs to have right to participate in the decision-making regarding their own privacy. The government agencies have been known in the UK to improperly utilise the already existing powers. The Regulation of Investigatory Powers Act has been reportedly misused by over 800 different public bodies including the MI5, which officially confirmed making over 1,000 administrative errors only under this piece of legislation.
It is important to observe that the UK is not an exception. Australian authorities have already been provided with the increased power to intercept telecommunication records and the German government is currently contemplating passing legislation to allow police forces to hack suspects’ personal computers.