The crazy case of the cat who sat on the act

I have a cat.  I’m quite fond of him and I like having him around, but, if I’m honest, I don’t think he’d be too upset if I moved away and left him.  He’d probably just go and live with the neighbour up the road where he seems to spend most of his time anyway.  It’s what cats do.  So it’s surely common sense that a cat couldn’t be a reason not to deport someone?  Apparently not.

I am not sure what’s most depressing about ‘catgate’:  yet more misinformation about the Human Rights Act; or that a senior government minister can’t get her facts right.  In case you missed it (and if so, where have you been?), the sorry tail, or rather tale, started when Home Secretary Theresa May gave a speech at the Conservative Party conference last week in which she decried the Human Rights Act (HRA).  To illustrate her point she used the case of an ‘illegal immigrant’ who could not be deported because he had a cat.  She was so sure this was another example of human rights gone bad, she even stressed that she was not making it up.

Except that she was.  Firstly, the man in question was not an illegal immigrant, but a student, who had come here quite legally but overstayed his visa.  Not quite the same thing.  Still, I suppose she was addressing a Conservative audience.  Secondly, the cat had nothing to do with the final judgement allowing the man to remain in this country.  This was partly because the cat was only incidental to the case and owning a pet was only one of many factors the man and his partner used as evidence of the strength of their relationship.

More importantly, the judgement including the reference to the cat (who, according to the Home Office, ‘is considered to be able to adapt to life abroad with her owners') was superseded by a second appeal rendering it irrelevant.  This subsequent judgement ruled that, irrespective of arguments about the man’s right to a family life under article 8 of the European Convention on Human Rights (ECHR), the appeal of the Home Office failed because it hadn’t followed its own policy.

This is hardly the first example of misrepresentation of the HRA, although most of the others are much less fluffy.  Take the case of Learco Chindamo, the killer of head teacher Philip Lawrence, who could not be deported to his native Italy following his release from jail.  The media likes to blame this on the HRA, when it had nothing to do with human rights at all.  His case was, in fact, based on EU freedom of movement law under the Citizens’ Directive 2004.

This sloppy, or deliberate, rubbishing of the Act is not new.  Ever since the EHCR was incorporated into British law in the Human Rights Act 1998 it has been a source of controversy.  The press likes to portray it as a ‘prisoners’ or terrorists’ charter’ and uses it to demonise groups that it probably doesn’t feel should have any human rights at all:  asylum seekers, illegal immigrants, criminals, travellers.

Focusing on high-profile, controversial cases allows the press, and government, to forget the purpose of the HRA, that is to protect real people by ensuring public bodies do not develop or apply policy that contravenes their rights.  By wallowing in their prejudices they neglect these beneficiaries:  the older woman strapped into her wheelchair against her wishes; the non-English speaker sectioned without an interpreter; the young learning disabled girl denied school transport; the woman fleeing domestic violence who fears her children will be taken into foster care.

While all of the rights in the HRA are universal, they are not all absolute and some can be limited to prevent harm to others, for example, the right to freedom of expression can be restricted to prevent incitement of racial hatred.  This is clearly where a lot of the confusion arises, although even absolute rights (for example, the right not to be tortured) seem to confuse some more careless commentators.  A recent article in the Daily Express  disparaged the HRA for preventing the deportation of Somali criminals, even though there was a very real risk of torture (incidentally, the right not to be tortured is also set out in article 3 of the United Nations Convention against Torture and the 1689 English bill of rights).

It is article 8, the right to privacy and family life, that has got the home secretary all hot under the collar, as several people she would like to deport have used it successfully to resist removal.  Many experts who do support the HRA agree that the judges in Strasbourg have used a very broad interpretation of ‘family rights’ and the balance needs to be redressed.  But surely it would be better to have a sensible, informed and grown-up debate about how best to do this, rather than use spurious examples?  Basing government policy on tabloid scare stories and misinformation strikes me as rather irresponsible.

Conservative policy has been quite open in its desire to scrap the HRA and replace it with a bill of rights, although it won’t be happening any time soon.  For a start, the commission set up to look into it hasn’t got very far. It would also be a deal breaker for the coalition, as the Liberal Democrats are staunch defenders, so it needs a Conservative overall majority to get the show on the road.

The likelihood of this gives me sense of impending doom:  if even Kenneth Clarke, who seems quite happy to scrap many pillars of our legal system, thinks we should keep it, the alternatives can’t be good.  But to be honest, I’ve struggled to understand the difference between the HRA and a bill of rights.  British judges don’t have to follow Strasbourg case law slavishly anyway, only ‘take it into account’, so there will probably still be judgements the press and politicians don’t like.  As top human rights legal blogger Adam Wagner  put it ‘ the exterior may change but the ECHR engine will remain.  So any UK bill of rights will be a bit like an updated Ford Fiesta; a new look and a few new features, but essentially the same car.’

I’m increasingly wondering if May’s ‘cat flap’ wasn’t deliberate.  It would have taken no time at all to find out whether or not the cat really had anything to do with the judgement preventing deportation.  It serves her purpose far better to whip up yet another storm of outrage about bad human rights, even if misplaced, than to engage in a proper debate.  And I suspect that even if she gets her wish the crazy headlines will continue.  You haven’t heard the last of the cat.

Posted in: Courts, Rule of Law

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