6th October 2011
The Government is Deciding on Human Rights Issues by Misrepresenting Them
Mark Hanson
There have been some serious developments regarding human rights and civil liberties as the conference season took place.
Perhaps the greatest in terms of newsworthiness is what has become known as Catgate. Theresa May, the Home Secretary, in her speech to the Conservative Party conference, highlighted a number of vague examples of where the Human Rights Act had prevented deportation of illegal immigrants. One was the example of Maya the cat. The Home Secretary said that the HRA had been responsible for “the illegal immigrant who cannot be deported because – I am not making this up – he had a pet cat."
Perhaps some sense needs to be brought in, as at the time of writing the Home Secretary has refused to admit her mistake, despite almost immediate rebuttal by the judiciary and an, at times rather unkind, attack from Ken Clarke, the Justice Secretary, who coming from a legal background knows the intrinsic folly that can come from presenting an untruth as a truth.
Adam Wagner, who is a barrister and writes the UK Human Rights Blog, put it this way:
“When referring to a legal judgment in a speech make sure you get the outcome right. Particularly when prefaced by “I am not making this up”. Secondly, if said speech is being broadcast live, there are plenty of lawyers on Twitter who will enjoy nothing more than tracking down the judgment, reading it and exposing the fact that you have got it wrong.
These lessons are important. But they relate to any amusing but forgettable political gaff. There is, however, a third lesson. There has been for a number of years a trend of wilfully or recklessly misreporting human rights cases. This trend is not just mischievous; it threatens to do real damage to our legal system.”
According to the solicitor, Barry O’Leary, who acted on behalf of the immigrant, human rights law was not the basis upon which the decision was made to not deport his client. He makes clear in a press release that it was due to a Home Office policy in force at the time:
“I had made an application on the foreign national's behalf for the right to remain in the United Kingdom on the basis of a Home Office policy known as DP3/96. DP3/96 was a Home Office policy which stated that individuals who had been in a relationship with a settled person for in excess of two years, and no immigration enforcement action had been taken against them, could be granted exceptional leave.”
The solicitor adds that, “The policy has now been withdrawn.”
The cat, which was peripheral to the case but in the initial hearing was used as an additional evidence of a settled family life, became highlighted when a rather mischievous Home Office official raised the matter by suggesting that the cat could maintain his family life by being deported to Bolivia. This was subsequently picked up upon by the right-wing press as evidence of Britain’s gone-soft legal system as it pertains to immigrants.
It should also be noted that the immigrant in question had not been known to have been convicted of any offence anywhere in the world.
That the policy has now been withdrawn; that the cat was peripheral; and that human rights law was not a deciding element in the court proceedings, these all indicate that the Home Secretary was extremely unwise in her choice of example and calls into question the other examples she used and her sense of judgement in seeming to be basing potentially fundamental human rights law reform on the disingenuous reports in the right-wing media.
Despite the storm amongst the legal profession who see her falsifying the example, including her Cabinet colleague who rightly has been unable to keep silent as important public declarations are based on a fallacy and could potentially jeopardise government policy formation, May has refused either to withdraw or apologise for getting it so terribly wrong.
There were also other civil liberty concerns during the conference season.
Earlier in the week, the London Mayor Boris Johnson called for police to arrest anyone that swears at a police officer. Whilst there must be an admission that following the riots in September the police, the government and the authorities throughout the country have been shocked and are keen for no repetition of such scenes, the call for police to arrest those who make unsavoury comments threatens to further heighten tensions as the police become seen to be the enemy of free speech. The tone of Johnson’s speech was draconian, and called for a zero-tolerance approach to policing which, in my view, would cause a further alienation of disaffected persons from the mainstream by bringing the occasionally rude person into the realm of the criminal justice system.
The situation where free speech is curtailed to such an extent where an “insulting” word is a criminal offence is not new: the 1986 Public Order Act, brought in by Margaret Thatcher’s government, makes provision for criminal proceedings if your words hurt the feelings of another, and in recent years this has been used to arrest Christians who have criticized the homosexual act as being inconsistent with Biblical teaching. Yet, although not new, these powers are being used more widely and a call from Johnson to increase the use of these unjust laws cannot be considered in-keeping with the values of a vibrant liberal democracy.
Even before the Conservative Party conference, a group of students had been arrested and charged at the Liberal Democrat conference for unfurling a banner protesting against Nick Clegg’s “betrayal”. Details may well show that the arrests were justified, although they were only based on road traffic offences and the imprisonment on remand of one of the defendants, Edward Bauer, does appear excessive for a traffic offence, and appears to indicate a growing trend in judicial proceedings that a political motive has moved away from being a mitigating factor towards being an exacerbating factor.
The Coalition government began by promising to restore the liberty of British people. High hopes were held. Yet there has not only been scant evidence of this, but in fact the pendulum still seems to be swinging further to authoritarianism.
