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Over the last few weeks both the Supreme Court and the Court of Appeal have played host to claims based on Article 8 of the European Convention on Human Rights (ECHR).
Before we take a quick look at both of those decisions, it is worth setting out what exactly Article 8 says:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The first paragraph clearly sets out the right, while the second allows a state to curtail it, where it is necessary and proportionate to do so, in a number of situations.
Bearing the above in mind, our attention turns first to the case of McDonald v McDonald and another. Here, the Supreme Court had to decide whether, when a tenant of a private landlord was evicted, the courts had to consider the proportionality of the landlord’s decision to evict them under Article 8 of the Convention.
The Supreme Court judgement, handed down by Lord Neuberger and Lady Hale, highlighted at the outset that where the party seeking possession of the property is a local authority, the occupier is entitled to question the proportionality of the decision. That is so because the European Convention is designed to protect private people from the excesses of state power. Put another way, it protects you and I from the actions of the Government.
As such, the Supreme Court found against Fiona McDonald (the tenant) and in favour of the landlords. The ECHR was not, they held, a Convention which was directly enforceable in disputes between private citizens and their private landlords.
In the same month, the Court of Appeal, in CT (Vietnam) v Secretary of State for the Home Department, had to decide whether it would violate Article 8 to deport a citizen back to Vietnam who had served a sentence in the United Kingdom for attempted murder. At first blush, it sounds like a no brainer. The difficulty, however, was that CT had two children who were both British citizens.
An avid reader of right-wing media might assume that CT was allowed to remain in the United Kingdom. After all, didn’t Theresa May say in Parliament back in 2011 that a man was allowed to stay here just because he had a cat?
Neither statement would be correct. Starting with the “cat-gate” affair. Mrs May’s farfetched claim was that the Appellant in an Asylum and Immigration Tribunal appeal was protected by Article 8 ECHR by virtue of his feline friend.
In reality, the Appellant could not be deported because of a blunder by our Government which failed to adhere to its own guidance and gave inadequate weight to the Appellant’s relationship akin to marriage – which, I hasten to add, was not the Appellant’s relationship with his cat.
Mrs May, instead of taking the time to digest and understand the three-page decision, latched onto the final paragraph where Judge Gleeson made the following quip:
The immigration Judge’s determination is upheld and the cat … need no longer fear having to adapt to Bolivian mice.
Theresa May’s fib has sadly not lost all currency and was recently cited by an angry Brexiteer as his rationale for voting leave, despite the fact that it was an outright lie and has nothing at all to do with the European Union.
Turning back to CT. The Court of Appeal cited an earlier case where the same Court had held that in immigration cases involving criminals – and contrary to popular opinion – the scales are heavily tipped in favour of deportation. While the best interests of the child and the right of a father not to be separated from his offspring were important considerations, they were insufficient to outweigh the public interest in seeing CT deported to Vietnam.
It is clear from the above cases that, while journalists like Allison Pearson try to paint a picture of a limitless charter for violent criminals, judgements concerning human rights are often sensible and pragmatic. There are clear and strict limits placed on our rights. In fact, it is arguable that often human rights judgements are too strict. Why, taking the Mcdonald case as an example, should a tenant be deprived of full Article 8 protection when she rents in the private sector, but not when she rents from the state? Nonetheless, as our readers will know, the Convention has done an immeasurable amount of good for our citizens and has held the Government to account on numerous occasions.
So, as either Michael Gove or Theresa May settle into Number 10 Downing Street in the coming weeks and begin drawing up plans to dismantle the Human Rights Act, just ask yourselves why it might be that the Government are so intent on doing away with one of the most potent checks that exists on their otherwise unbridled executive power; a check which is often tightly – and sensibly – restricted and one which is designed to shine a light on Government abuses, rather than the violence of private citizens.