Political life in this country, as elsewhere, has its regular routines and rituals – the State Opening of Parliament and the Queen’s Speech, the Budget and the battered red box, the Home Office’s annual trip to the High Court to be told that yet another piece of its legislation breaches the Human Rights Act…
When you consider that the government, and indeed Parliament, is stuffed to the rafters with lawyers, it seems rather strange to reflect on the regularity with which our elected representatives are hauled before the court to be told, yet again, that they’ve simply got it wrong; all the more so when you consider that every government bill introduced to the House has to be signed-off by the relevant Minister in relation to its presumed compatibility with the Human Rights Act.
Of course the present Home Secretary, Charles Clarke, is not a lawyer and indeed, once rancourously commented in the House that he ‘would not be patronised by lawyers’. Nevertheless, in his Ministerial colleagues he is surrounded by lawyers (Blair, Straw, Harman) not to mention the Attorney General, Lord Goldsmith. And the government, more generally, is hardly short of legal advice when it needs it; indeed one has to wonder just how much the government spends each year on legal advice to Ministers and government departments.
It doesn’t take a genius to work out that a system that forces non-EU immigrants to apply to the Home Office for permission to get married and then arbitrarily refuse such permission to anyone without established legal residency in the UK is going to run in problems with the Human Rights Act, with or without the weaselly little concession to the privileged position of the Anglican Church tacked on to it. In fact it doesn’t even take a lawyer to figure that one out. Yet, in case anyone needs reminding, somewhere along the line, the system that that the High Court yesterday ruled unlawful was signed-off as being ‘compatible’ with the Human Rights Act – patently it isn’t.
The BBC article make reference to the fact that the ‘House of Lords complained that the Act had not received proper scrutiny’, and indeed when one looks at the report of the Joint House Committee on Human Rights on the Asylum and immigration (Treatment of Claimants, Etc.) Bill (now Act) 2004, which is where these provisions were enacted, on finds this statement:
2. On 9 June 2004 the Government tabled a number of further new amendments to the Bill. The amendments were debated in the House of Lords less than a week later, on 15 June 2004. In our view, some of these amendments have obvious and serious implications for human rights. We were given no advance notice of the substance of these amendments, and neither we nor the House of Lords were given any written explanation of the Government’s reasoning in relation to the compatibility of the proposed measures with human rights.
3. We have made it clear in a number of reports that we regard it as unacceptable that amendments having significant implications for human rights should be introduced at a late stage in a Bill’s passage through Parliament, without a clear explanation of the Government’s view of the human rights implications. We find it particularly regrettable that we find ourselves once again in the very same position so soon after having made clear that such a practice undermines parliamentary scrutiny of legislation for compatibility with human rights. Such scrutiny is crucial to the democratic legitimacy of the Human Rights Act 1998. We once again draw this to the attention of each House.
When it comes to the Act’s restrictions on the right to marry, the committee had a number of interesting things to say, first in relation to this section:
37. The Government’s purpose in introducing the marriage provisions was explained by the Minister on recommittal. The aim of the measures is to prevent the circumvention of immigration controls by “sham marriages”. A sham marriage is statutorily defined as a marriage entered into by a non-EEA national for the purpose of avoiding the effect of immigration control.
38. The Government states that the number of sham marriages is increasing. Since 1 January 2001 registration officers have been under a duty to report “suspicious marriages” to the Secretary of State without delay, where they have reasonable grounds for suspecting that the marriage will be a sham marriage. In 2003, 2,700 such reports were received from registrars. The total for 2004 is set to be much higher: by 15 June 2004, 2, 251 such reports had already been received. The Government relies on this increase in the number of reports from registrars as an indication that sham marriages are on the increase. It also states that registrars are reporting increased levels of fraudulent documentation being presented in support of notifications for marriage at UK register offices. The Government also states that organised crime is becoming increasingly involved in this abuse of the immigration system.
All of which sounds faintly alarming – certainly more than sufficient to have the Daily Mail foaming at the mouth, except that, as the report goes on to note:
57. Firm evidence of the scale of the problem to be addressed by these measures has not so far been made available by the Government. The increase in the number of reports of suspicious marriages from registrars raises a number of more detailed questions about the extent to which this increase demonstrates an increase in the scale of abuse. How many refusals of leave to remain have there been arising out of the 2,251 reports of suspicious marriages from registrars? What explains the striking discrepancy between the large number of such reports (2,251 so far this year) and the relatively small number of criminal charges (37)? With what offences were the 37 people charged? How many were convicted? What are the “other intelligence sources” relied on by the Government as demonstrating an increase in the number of sham marriages?
These ‘figures’ which appear to show a rise in ‘sham marriages’ have been widely quoted in the media in the reporting of this case and yet it turns out that they are based on nothing more substantial than the ‘suspicions’ of registrars – mere hearsay and unverifiably hearsay at that. Yes, there have been cases of organised marriage ‘fraud’ with the aim of circumventing immigration regulations – the ‘marriage of convenience’ is an age old means of obtaining residency in the face of the threat of deportation, but the mere fact that a registrar is ‘suspicious’ is not evidence that a particular marriage is a sham and, as the committee notes, there is a massive discrepancy between the number of alleged sham marriages and the number of prosecutions – less than 1 in 50 of the marriages thought to be possibly ones of convenience appear to have led to a prosecution, figures which make the CPSs success rate in rape cases look positively stellar by comparison.
What we have here is little more than the usual use of artifically inflated and unverifiable headline figures to justify illiberal legislation and arbitrary interference by the state in the private life of individuals. Marriage of convenience for the purpose of circumventing immigration regulations are certainly illegal, but the interests of justice are only served in such cases if such marriages are properly investigated and their illegality demonstrated in court, not by the imposition of arbitrary adminsitrative rules, and particularly not be rules that the committee described in the following terms:
62. First, there appears to be a lack of clear rational connection between the purpose of the measures, namely to prevent sham marriages, and the criteria to be applied by the Secretary of State when deciding whether to grant permission to marry under clause 19(3)(b). Proportionality requires that there must be a rational connection between the end which it is sought to achieve by a particular measure (in this case, the prevention of “sham marriages”) and the measure itself, in the sense that the measure must be logically related to the achievement of the aim.
63. The criteria which it has been suggested will be applied by the Secretary of State in deciding whether or not to approve of a marriage in an individual case will not be based on an assessment of the genuineness of a marriage. They will include whether the person is lawfully resident, whether they have been granted over six months’ leave or are a visitor, and whether it is reasonable or unreasonable to expect them to return home to apply for entry clearance from outside the UK. The length of time for which a person has leave to remain in the UK, for example, has nothing to do with the genuineness or otherwise of any marriage into which he or she proposes to enter. This criterion will effectively operate as a statutory presumption that a marriage involving a person with less than six months leave to stay is not a genuine marriage. But there is no necessary or logical connection between the genuineness of a proposed marriage and the length of time for which a person has leave to stay in the UK.
All of which led the committee to conclude that:
…there is a significant risk that the requirement to obtain permission to marry, as presently drawn, will be incompatible with the right to marry because it introduces restrictions on that right for a wide class of people which are disproportionate to the legitimate aim of preventing sham marriages and which may impair the very essence of the right.
Score one for the committee, then – they were clearly right in their analysis and reasoning, all of which was then ignored by the government who proceeded with the introduction of these regulations regardless.
Moving briefly on to the matter of the exemption given to the Church of England, which has also been ruled incompatible with the Human Rights Act, the committee report includes this staggering comment:
72. To be compatible with Article 14 there must be an objective and reasonable justification for such differential treatment. The justification which has been offered by the Government is that “there is no evidence of sham marriages in the Church of England”. We are not persuaded that this is a sufficiently weighty justification for such a clear difference of treatment on grounds of religion or belief in relation to a matter which affects almost everybody in one of the most fundamental aspects of their private lives.
Is that it?
The committee may not have been ‘persuaded that this is a sufficiently weighty justification for such a clear difference of treatment on grounds of religion or belief’ – a more succinct appraisal would have been; ‘what a piss poor argument?’. Unsurprisingly, therefore, the committee concluded:
73. We consider that the exemption of Church of England marriages from the proposed restrictions leads to a significant risk that the provisions will discriminate on grounds of religion and belief without objective and reasonable justification. We draw this to the attention of each House.
And, again, they were spot on in their appraisal of the situation – committee 2, government 0.
Of course this story drew the usual, entirely predictable response from the idiot press – the Daily Express splashed their front page with ‘Immigration Laws a Joke!’ before launching into the usual dire diatribe about Britian being ‘swamped’ by immigrants, while the Sun described the case as a ‘Human Rights Shambles’ before going on to state that:
It is the latest example of the Government’s will being overpowered by human rights rulings — and sparked outrage.
None of this is, of course, surprising if you recall that it was a ‘moral panic’ spraked by these rags which led to the the last minute introduction of these provisions in the first place.
Both, of course, miss the real point here. The problems in law that resulted in yesterday’s declaration of compatibility were clearly pointed out the government during the course of the Act’s passage through Parliament, and then completely ignored by a government so enamoured of its own managerialist arguments that it paid scant regard to the little matter of the law:
Des Browne (Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office)
Similarly, while it is possible for the immigration service to follow up marriages and to try to establish whether they are genuine and persisting, it is an extremely resource-intensive process and, as the law stands, the burden of proof lies with the Government to show that the marriage is not genuine, which is not always easy. The better solution is therefore to make it more difficult to enter into a sham marriage in the first place—indeed, to make people feel that there is no point even in trying.
In short, small-minded arbitrary and discriminatory regulations are cheap, which is why we’re going to have them.
There is, however, more to this case than simply immigration and the rights of individuals to marry.
This ruling comes at a time when the government is actively seeking to reduce the level of Parliamentary scrutiny applied to legislation, via the appalling Legislative and Regulatory Reform Bill and making threatening noises in the general direction of the House of Lords in relation to curbing the ability of the second chamber to delay or oppose government legislation, despite the fact that even with the safeguards we already have, the Home Office, in particular, still finds itself almost routinely on the wrong end of judicial rulings of incompatibility.
At the very least, here, we’re dealing with plain old hubris on the part of government; the mistaken belief that they can do pretty much as they please and ignore human rights objections on the strength of nothing more substantial than a Sun headline or two and a bunch of figures that they’ve pulled out of their arse.
Yet one also has to question the competence of government Ministers in this case.
The Joint Committee on Human Rights, as we’ve now discovered the hard way, was entirely correct in its concerns and its reasoning behind those concerns – and yet the government chose to ignore their comments and press ahead, all the time claiming incorrectly that their plans were compatible with the Human Rights Act. The question that we, as citizens, should be asking is just what accountability the government is going to accept in this matter, having got things so blatantly and obviously wrong despite having all the arguments put before them at the time the legislation was debated in the House – although, frankly we already know the answer. None.
Is this really something that we should accept, though?
In other walks of life, someone would surely be held accountable for a mistake such as this. It’s not as if the government weren’t clearly warned of the problems which were likely to arise out of this legislation and yet they pressed on regardless, only for it to demonstratrated in court that they’d got it wrong. Remember, the government has made the same declarations of compatibility in relation to, amongst other things, the Terrorism Act, with its provisions from outlawing the ‘glorification of terrorism’ and the Identity Cards Act, with all the prospects that creates for unprecedented levels of state surveillance over many of most private aspects of citizen’s lives. Can we honestly beleive those statements when case such as those show the government getting things so completely, clearly and predictably wrong?
On the evidence of this case, and others, such as that of the unlawful detention of alleged terrorist ‘suspects’ in Belmarsh prison, the answer you would have to say is no – and if we cannot trust the legislature to avoid making such basic mistakes in law, then what trust can we have in government itself?