Be careful what you wish for
- The Conservative Human Rights Revolution: European Identity, Transnational Politics and the Origins of the European Convention by Marco Duranti
Oxford, 502 pp, £59.00, February 2017, ISBN 978 0 19 981138 0
‘The United Kingdom played a major part in drafting the convention,’ said the Blair government’s paper introducing the bill that became the 1998 Human Rights Act, ‘and there was broad agreement between the major political parties about the need for it.’ The Panglossian account of the 1950 European Convention on Human Rights – that it was essentially uncontentious and genetically British – is the orthodox narrative that the Australian scholar Marco Duranti sets out to deconstruct. His copiously evidenced account, drawn from British, French, German, Italian, Dutch and US archives, is that the convention was an individualistic and conservative project, devised outside the offices of governments and the chambers of parliaments and designed to stem the postwar tide of socialism and statism. Through it, he argues, ‘conservatives enshrined human rights as European values in the service of a nostalgic Christian vision of the European legal order, not a liberal cosmopolitan one.’ So if to modern readers the European convention, which includes practically no social or collective rights, looks like a 19th-century manifesto of liberal individualism, it’s because that’s what it was: reactionary in the best and purest sense of the word. A young French journalist, Jean-Jacques Servan-Schreiber, wrote in Le Monde, as the draft moved towards finality: ‘Our parliamentarians at Strasbourg are playing at being lawyers from 1789 and liberals from the 19th century.’ It is time’s whirligig which in the last half-century has spun the convention round, making it a shield for the dissident, a weapon for the unrespectable and a bane for state authorities, a living reminder to be careful what you wish for.
The full text of this book review is only available to subscribers of the London Review of Books.
Vol. 40 No. 18 · 27 September 2018
Stephen Sedley criticises Theresa May for having as home secretary ‘recycled the myth about foreigners evading deportation because they are cat-owners’ (LRB, 30 August). This is not a myth. There was a ‘catgate’ case and May’s account of it, though hardly devoid of political advantage seeking, was essentially correct. I will happily supply a transcript of the case, which is not publicly available, and my commentary on it, to those who ask.
Sedley is of course right that the European Convention on Human Rights (and therefore the Human Rights Act) is Churchill’s legacy. But the implicit claim that Churchill would have intended to leave as his legacy the chaos caused by the convention and the act as they now are interpreted in UK asylum and immigration law, and the parlous state of judicial review and the danger to national security consequent on this, is not right. The currently highly successful use of the convention and the act in a process of replacing parliamentary sovereignty with judicial supremacy would, obviously, be even less part of Churchill’s intention.
Vol. 40 No. 19 · 11 October 2018
David Campbell discerns in my review of Marco Duranti’s The Conservative Human Rights Revolution an ‘implicit claim that Churchill would have intended to leave as his legacy the chaos caused by the [human rights] convention and the act as they are now interpreted’ (Letters, 27 September). There follows a familiar jeremiad on the current state of asylum and immigration law, the ‘parlous state of judicial review’ and ‘the danger to national security consequent on this’.
Making the somewhat generous assumption that the judges are indeed causing chaos by their use of human rights and are routinely jeopardising national security by ignoring what Parliament enacts, my article not only contained no implicit claim that this was Churchill’s objective, it explicitly said the opposite: namely, that Churchill, Maxwell Fyfe, Sandys and their allies considered that ‘some supranational constitutional restraint was needed on what even elected governments might do.’ This was to take the form of an international human rights regime, to be interpreted and applied by judges, and expressly designed to put a stop to socialist and statist incursions into personal freedom. It is, as I pointed out, time’s whirligig – the disconcerting intervention of the unintended – which has brought about the situation deplored by Campbell, in which both Conservative and Labour administrations have been held, domestically and internationally, to be violating Churchill’s human rights.
As to the immigrant’s cat, a revisit (with the help of Professor Campbell’s kind offer of a copy) to the judgment of the first-instance immigration judge confirms that the cat (which was real enough) had no decisive effect on the outcome. Contrary to Theresa May’s description of it as a deportation case (deportation, in general, is what happens to foreign criminals), the case concerned the liability to removal of a Bolivian national who had entered lawfully as a student but had overstayed. By the time the Home Office caught up with him he had settled down with a partner and – yes – a cat in what the Home Office did not dispute was family life within the ambit of Article 8 of the ECHR. The immigration judge concluded that the couple had an established family life in the UK; that the partner, whose father was terminally ill, could not reasonably be expected to move with the applicant to Bolivia; and that the demands of immigration control were not strong enough in the circumstances to make removal a proportionate interference with the right to respect for family life. The cat played no part in any of this.
However, tongue visibly in cheek, the Home Office in refusing leave to remain had suggested that the cat could adapt to life abroad: ‘While your cat’s material quality of life in Bolivia may not be of the same standard as in the United Kingdom, this does not give rise to a right to remain.’ Nevertheless, the acquisition of the cat, said the immigration judge, ‘reinforces my conclusion on the strength and quality of the family life that the appellant and his partner enjoy’. On formal reconsideration, a senior immigration judge found no error of law in the judgment, adding: ‘The cat need no longer fear having to adapt to Bolivian mice.’
Whether these asides and moments of judicial levity justified Theresa May in saying in a speech ‘We all know the stories about the Human Rights Act … about the illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat,’ your readers can judge. Unlike David Campbell, I don’t for my part think ‘myth’ is too strong a word for a recycled assertion that, thanks to the Human Rights Act, an illegal immigrant cannot be deported because he has a pet cat.
Vol. 40 No. 21 · 8 November 2018
David Campbell seeks to support Theresa May’s ‘catgate’ comments in his response to Stephen Sedley’s article on the origins of the European Convention on Human Rights (Letters, 27 September). I was president of the Upper Tribunal when May, who was home secretary at the time, claimed that a Bolivian man had his appeal against deportation allowed by a judge of that chamber because he owned a cat. Like the lord chancellor of the day, Ken Clarke, I would have been surprised (and alarmed) if this had been the case, and promptly reviewed the decision in question. Far from being ‘essentially correct’, the home secretary’s comment was quite wrong.
The decision to allow the appeal was based on the Home Office’s own policy at that time (since rescinded) that generally permitted a student who had overstayed his limited leave to remain to regularise his position if he had been in a genuine and durable common law relationship for two years or more at the time of the decision. The nature of the relationship was undisputed and it was conceded by the Home Office’s presenting officer that there had been a failure to have regard to its own policy. The fact that the couple had acquired a cat together was the kind of circumstantial detail that the Home Office often took into consideration in assessing the existence of a genuine relationship; it was mentioned in the refusal decision and the judgment but was not the basis of the decision to allow the appeal. This was made plain by a statement from the Judicial Office issued that day and accurately quoted by the BBC on 6 October 2011: ‘This was a case in which the Home Office conceded that they had mistakenly failed to apply their own policy – applying at that time to that appellant – for dealing with unmarried partners of people settled in the UK. That was the basis for the decision to uphold the original tribunal decision – the cat had nothing to do with the decision.’
Campbell is equally wide of the mark in his comments about the ECHR and the erosion of sovereignty. Churchill and his fellow promoters of the ECHR would be perfectly aware that an international treaty to protect rights, supervised by a regional court of judges from the contracting states, would restrain the state from doing things that it had been previously free to do; that is the whole basis of international law, universal or regional, whether the prohibition is against aggressive war, the use of torture, destruction of the environment or failing to respect family and private life through unlawful or unjustified interference with it.
The application of Article 8 of the ECHR to the expulsion of non-citizens was very well-established in the Strasbourg Court’s case law by 1998, when Parliament decided to make it part of national law, and confirmed in 2000 when the UK endorsed the EU Charter on Fundamental Rights as reflecting the existing legal obligations of the UK and the Human Rights Act came into force. An over-generous judicial decision on the application of Article 8 would certainly have led to the case going to the Court of Appeal, but there was no further appeal in the catgate case as there was no error of law on the part of the judge who was applying the law laid down by Parliament, in fact on the all too familiar ground that the Home Office had failed to apply its own policies accurately.