Lord Pannick
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Lord Pannick (CB)
My Lords, perhaps I may add my support to the points that have been made by the noble Baroness, Lady Hamwee. I shall speak to Amendment 31A, which is in my name and that of the noble Baroness, Lady Lister of Burtersett.
Amendment 31A arises out of the concerns that have been expressed at paragraphs 48 to 53 by the Joint Committee on Human Rights in its eighth report of this Session. The concern is that, in cases where a person is resisting deportation on human rights grounds, Clause 12 will allow the Home Secretary to certify that the person concerned may be removed from the United Kingdom because there is not a real risk of serious irreversible harm and the individual would then be able to pursue the appeal against deportation only from abroad. The Government say that judicial review will be available to such a person to challenge the removal decision while the appeal is pending.
The JCHR has expressed its concern about whether judicial review will provide a practical and effective means of challenging the certification by the Secretary of State that the appeal can be heard from abroad. The JCHR has drawn attention to the Government’s proposed changes to judicial review to restrict its availability and has emphasised the reductions in legal aid. The Joint Committee returned to this subject in its 12th report, published on 26 February.
I share the concerns that have been expressed by the JCHR, and I would add that it is more than a little ironic that the Government’s policy has hitherto been to reduce the number of judicial reviews in the immigration context on the basis that appeals are much quicker and cheaper, and yet now the Government are saying that the individual’s protection will lie in a judicial review. In the light of the reductions in legal aid and the changes that the Government are proposing to judicial review, there are real concerns about whether or not an effective practical remedy will remain available to the individual.
I want to add one specific point to those that have been made by the JCHR. In cases of this kind, a claimant for judicial review will vitally depend on information and representations from interveners; that is, expert bodies that regularly assist the court—sometimes in writing, sometimes through oral submissions—for example, by explaining to the court the practical conditions in the foreign state to which the person concerned is going to be deported.
Your Lordships will know that Clause 51 of the Criminal Justice and Courts Bill, which is currently before the other place, will oblige the court, other than in exceptional circumstances, to order an intervener to pay the costs incurred by the other parties as a result of the intervention—surprisingly, whether or not the intervention assists the court and, indeed, whether or not the party seeking costs from the intervener has succeeded in the judicial review. Does the Minister share my concern that, unless amended, Clause 51 of that Bill will inevitably deter interventions, which are vital in this type of case, and make it much more difficult for a person covered by Clause 12 of this Bill to bring an effective claim for judicial review? What assurances can the Minister give the Committee in response to my concerns and those set out more fully in the JCHR’s reports?
Baroness Lister of Burtersett (Lab)
My Lords, I support Amendment 31A. I am very grateful to the noble Lord, Lord Pannick, for speaking to it on behalf of the JCHR. As he has shown, he is much better placed to do so than I would have been as a non-lawyer. There is not much more to say about it. I will just underline what the JCHR said, which was:
“In the absence of legal aid, we do not consider that an out of country appeal against deportation on the grounds that it is in breach of the right to respect for private and family life is a practical and effective remedy for the purposes of Article 8 ECHR and Article 13 in conjunction with Article 8”.
Support also comes from the briefing we have received from ILPA, which underlines that for those who are unable to pay for legal representation and are therefore left to pursue their appeals by themselves, seeking to do so from outside the UK would be especially and in many cases prohibitively difficult. The absence of a legal representative at the appeal hearing and to assist in the collection, preparation and presentation of evidence is likely to spell the end of what little prospect there may have been in the small minority of cases where removal pending appeal had not itself spelt, in Lord Justice Sedley’s words,
“the end of the appeal”.
My preference would be for our amendment to prevail but, as a fallback, I would certainly support the amendment moved by the noble Baroness, Lady Hamwee, in respect of children. I will be speaking about children’s best interests in a moment, but a very good case has been made for this amendment by the Refugee Children’s Consortium and others. I will quote a case study that the consortium has provided, which states:
“The Home Office detained and planned to deport Christine, a single mother who had served a criminal sentence. Her two children were left in the care of their elderly and seriously ill grandfather. Her 15 year old daughter ‘Beth’ left school and missed her GCSEs while caring for her brother and grandfather. She struggled to look after her seven year old brother, who has very limited motor control and severe behavioural problems. A children’s services assessment found that the younger child was at risk of emotional and physical harm; he was later hit by a car while playing alone in the street. The children’s welfare was not taken into account by the Home Office, but after the mother’s release on bail she was reunited with her children and successfully appealed her deportation through the courts”.
The point made is:
“If Clause 12 becomes law, parents in Christine’s situation may be deported before they can appeal and her children would be separated from their mother”.
That is a horrendous example. If she had been deported, what would have happened to that family?
Lord Avebury
My Lords, Clause 14 circumscribes the freedom of the courts to interpret Article 8 of the ECHR dealing with the right to respect for private and family life. We know from the Minister’s reply to an earlier amendment and from paragraph 18 of the letter that he wrote to noble Lords after Second Reading that there are to be further restrictions in the rules and guidance about what the courts can do regarding Article 8. This clause in effect instructs the court or tribunal which is required to determine whether a decision to remove or deport someone breaches Article 8 to have regard to considerations which are set out at some length. In particular, it invites the court to consider factors that could make the best interests of the child less than paramount in deciding whether the child’s family should be removed.
The noble Baroness, Lady Lister, mentioned the case of ZH (Tanzania), in which a child’s best interests lay in remaining in the UK, and the question was whether the carer should be removed. In that case, the noble and learned Lord, Lord Kerr, said:
“What is determined to be in a child’s best interests should customarily dictate the outcome of cases such as the present … and it will require considerations of substantial moment to permit a different result”.
It seems to me that the Government are saying to the courts that in future they should decide against the appellant where the circumstances are similar to those in ZH, although, of course, it would be possible that, having considered the factors listed in Clause 14, the courts could find that the “substantial moment” test had not been satisfied. Possibly, too, if our own courts throw out carers wholesale, even where the best interests of the child dictate that they should be allowed to remain, a different view will be taken in Strasbourg. I would like to know whether the Government thought about that in drafting Clause 14.
The doctrine of “margin of appreciation” allows states a degree of discretion when taking legislative action in the area of a convention right, but the limits of discretion are defined by case law. Only a narrow margin of appreciation is permitted where a particularly important facet of an individual’s identity or existence is at stake—see Evans v UK—and, perhaps even more closely relevant, where an “intimate aspect of private life” is at stake under Article 8—see Dudgeon v UK, where it was ruled that there must be particularly serious reasons before interference on the part of public authorities can be legitimate in those cases.
The Children’s Commissioner wrote a letter to the then Minister for Immigration in August last year about the operation of the Immigration Rules, and some of the matters that she raised then are directly relevant to this clause. Article 9(1) of the CRC provides for a child’s right not to be separated from his or her parents other than in strictly defined circumstances and where it proves necessary in the child’s best interests. There is a positive obligation on the state to ensure that a child is not separated from its parents unless the child’s best interests require it. The commissioner is now considering the effect on children of this clause, and it would be useful to know whether she was consulted about the drafting.
I am concerned that this clause undermines our obligation under the CRC and that it may lead to unnecessary litigation, damaging to our reputation at the European Court of Human Rights. I hope that it will be reconsidered before Report.
Lord Pannick
My Lords, I add my support to the general concerns expressed so eloquently by the noble Baroness, Lady Lister. I have two questions for the Minister. First, can he confirm, as I assume he will, that nothing in Clause 14 is intended to detract from the important principle of law that the best interests of the child are a primary consideration for decision-makers in this context? It is important for Pepper v Hart purposes that the noble and learned Lord makes the position unambiguously clear.
Secondly, before Report, will the Minister please undertake to give further consideration to the advantages of referring in Clause 14 to the best interests of the child? I ask that question as I have some difficulty in understanding how the test in new Section 117C(5)—that is, exception 2: the test of whether the effect of deportation on the child would be unduly harsh—is compatible with looking to the best interests of the child as a primary consideration.
Baroness Smith of Basildon
My Lords, this is one of three groups of amendments around Article 8 that we have tabled to Clause 14. I wish to make a couple of brief comments. I want to put on record, and make very clear, that we fully support Article 8. We understand that it is not an absolute right. It is a qualified right and those qualifications also have to be understood. Any interference with that right has to be within those qualifications. However, we share concerns about how Article 8, and those qualifications, have been interpreted in some cases involving foreign criminals convicted in the UK and then put up for deportation. There are problems with criminals who we cannot deport who have committed serious crimes, and where Article 8 has been considered to be used inappropriately, and where the question has to be asked whether the qualifications have been fully considered. The balance is one to be reached by the courts in individual cases, but we consider it right that Parliament should set out how qualified rights should be balanced in different areas.
There is wider concern about the Government’s failure to deport foreign criminals and the gap between the inflammatory rhetoric used on some occasions with regard to immigration issues and the reality of those issues. Since the Home Secretary took office, the number of foreign criminals being released into the community has gone up and the number of people removed from our country for breaking the rules has gone down by 13% in the past three years. I say to the Minister that it is important for the Government to get the basics right before looking at new areas—for example, ensuring that we have the right staff and the right number of staff in place to deal with these issues.
I listened very carefully to the noble Baroness, Lady Lister, and I was relieved when the noble Lord, Lord Pannick, said that he was slightly confused about a contradiction that appears to have arisen in this context. I am a non-lawyer and I was confused as well. I was relieved to hear that lawyers can also be confused about the Government’s intentions in this regard. The noble Baroness, Lady Lister, made a very powerful speech and I will be interested to hear the Minister’s comments on it.
I welcomed the comments of the then Minister, Mark Harper, to the JCHR about the Government’s responsibilities under the UN Convention on the Rights of the Child. There was absolute confirmation that the best interests of the child will be considered. However, other comments have been made that appear to qualify that. That would seem to undermine the concept that the best interests of the child will be considered. I do not mean to be facetious when I say that it sounds as if the best interests of some children will be considered. I do not understand the contradiction between what is in the Bill and the very welcome comments made by the former Minister that the Government will always consider the best interests of the child. How does that conflict, confirm, or work with what is in Clause 14? Confirmation from the noble and learned Lord that the best interests of the child will be considered would be very welcome.
Lord Pannick
Lord Pannick
My Lords, Amendments 38, 41, 44 and 46 are in my name and that of the noble and learned Lord, Lord Hope of Craighead, who regrets that he is unable to be in his place this evening.
The Minister mentioned some of the history behind Clause 14 in his general comments in response to Amendment 33. This is not a criticism, but he omitted to refer to the fact that this subject has concerned the Home Secretary for some time; at least since her speech in autumn 2011 at the Conservative Party conference, when she referred to a Bolivian man who she alleged had avoided deportation because of his relationship with his cat. The Home Secretary returned to the subject in February 2012 in an article she wrote for the Mail on Sunday under the provocative headline, “It’s MY job to deport foreigners who commit serious crime —and I’ll fight any judge who stands in the way”.
The contents of this article were as combative as the headline. According to the Home Secretary, some judges did not understand Article 8 of the European convention on the right to private life, in particular in relation to deportation. They were ignoring the Immigration Rules and subverting our democracy. This is not ancient history because at the Second Reading of this Bill in the other place on 22 October 2013, the Home Secretary stated that these remained the concerns which formed the basis for Clause 14 of the Bill. She complained that,
“some judges have still chosen to ignore the will of Parliament and go on putting the law on the side of foreign criminals instead of the public.—[Official Report, Commons, 22/10/14; col. 162.]
Lord Pannick
I am very grateful to the Minister and indeed to all noble Lords who have spoken on this important topic. The noble and learned Lord the Minister, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Baroness, Lady Smith of Basildon, all emphasised that it must be for government to ask Parliament to set out in legislation the policy on what factors should be taken into account, or may be taken into account, in the public interest in deportation cases. I have no quarrel with that but that is not the concern. What is objectionable in my view about Clause 14 is that legislation will tell the judges what weight to give to relevant factors in deciding a case which depends, inevitably, upon the particular circumstances of that case. That is a matter not for Ministers or for Parliament. It is a matter for the judge, looking at all the circumstances of the case and taking into account the factors which have been identified by Parliament as relevant.
Lord Wallace of Tankerness
I sought to try to explain that that expression of little weight was really a way of putting into statutory form what we believe is in fact the practice of courts in the cases which are here. I think it was in the case against the Netherlands; I do not know the first name involved but the other was Hoogkamer. I am sorry not to get that right. We were seeking to say that we endorse what the position of the European Court of Human Rights has been on that. Whereas under the Human Rights Act the court is asked to consider and have regard to the Strasbourg jurisprudence, what we are seeking in this is to say that we agree that the court should follow the Strasbourg jurisprudence. This has not suddenly been conjured up; it is based on what we believe the courts would do.
Lord Pannick
I am grateful to the noble and learned Lord. The difficulty with that is that the Strasbourg jurisprudence recognises that although of course little weight should be given to these factors in many cases, there will be other cases where considerable weight should be given to these factors in the individual circumstances. They may be unusual or rare cases but the Strasbourg court is not saying that it is a rule that in every case involving family or private life, little weight shall be given to these factors. The difficulty about Clause 14 is that it purports to suggest that little weight must always be given to these factors, whatever the circumstances of the case. It does not say “other than in exceptional circumstances” or “normally”; it says that little weight shall be given to these factors. If the Minister wishes to come back on Report with an amendment that recognises a degree of judicial discretion, I shall be delighted to welcome it but that is what Clause 14 says at the moment.
The difficulty that the Minister faces is that he must recognise that there will inevitably be cases where a tribunal or a court, looking up at the facts of the case, decides that greater weight should be given to these factors. If I understood him correctly, the Minister accepted that if the court or tribunal decides in applying Article 8 that more than little weight is required to be given to these factors, then Article 8 must prevail. So Clause 14 is simply illogical and self-contradictory. It does not even achieve what the Minister says it is designed to achieve.
In introducing this group of amendments, I said that the Joint Committee on Human Rights had been unable to identify any precedent for legislation telling the courts what weight to give to relevant factors. I do not think that the Minister or indeed the noble and learned, Lord Brown of Eaton-under-Heywood, with their combined expertise and experience, have pointed to any precedent upon which Clause 14 should be based. I think that this is a constitutional novelty, and we will be creating a very unfortunate precedent by telling the courts what weight to give to relevant factors, when that must depend on all the circumstances of the case.
I am sure that we will be returning to this topic on Report. I ask the Minister to reflect on this matter and to see whether it is possible to meet the concern that has been expressed today, without doing any violence to the object of Clause 14, by putting in some wording that recognises in the Bill the retention of judicial discretion in this matter. For the moment, though, I beg leave to withdraw the amendment.