A lot of people didn’t like the government’s new plans for a “hostile environment” for illegal immigrants: that is, the provisions of law requiring private landlords to verify the immigration status of their tenants or face penalties if they let to those not entitled to be here. You didn’t even need to be left-wing.
There is a perfectly plausible Christian case for not turning human beings onto the streets, whatever their status. Furthermore, conservatives can argue with some conviction that private property owners, not all of whom are filthy rich, ought not to be dragooned into acting as immigration gatekeepers for a government that won’t or can’t do the job itself.
That said, last week’s High Court judgment declaring the whole arrangement contrary to the European Convention on Human Rights (available here) makes for some interesting reading, even for those who don’t normally dip into law reports for fun. Its essential ground was that the unintended consequence of the scheme was that landlords were less willing to let to those without British passports or whose immigration status was less than clear-cut; that this amounted to discrimination; and that as such it could not be tolerated.
Much of it could easily have come from a Guardian op-ed written by a North London media executive. It began with a ringing attack on racial discrimination and inequality; went on to explain that whatever the government might have thought and said, intended landlords were in fact unhappier at letting to foreigners with the right to stay than to the ethnic British; that this affected the right to a home and family life; that if one looked at the European Convention on Human Rights it required states to be very tough on racial discrimination of any kind; that the government had not got to first base in arguing that its scheme was justified; and that the whole idea had to be dropped.
The right to protection of your home and family life under Article 8 most certainly do not give you any right to insist on renting a home from a private landlord.
Save for one rather patronising remark that he was sure any MP who voted for the scheme in Parliament would now change their mind when they saw the consequence of what they had done, this is no criticism of the judge whatever. Everything he said was faithfully in accordance with the approach of human rights law as developed in Europe. And that is what is distinctly worrying.
For one thing, as a lay reader of the ECHR you might be forgiven for asking whose human right to what had been infringed. There is no free-standing right under the ECHR to equal treatment, only a provision in Article 14 that states cannot discriminate in protecting human rights (one way in which it is less obnoxious that the EU’s Charter of Fundamental Rights, which does prohibit discrimination as such). Further, the right to protection of your home and family life under Article 8 most certainly do not give you any right to insist on renting a home from a private landlord.
But this has not deterred the human rights lawyers in their quest ever to increase their ability to intervene in territory otherwise off-limits to them. Under a piece of casuistry known as “ambit” doctrine, the rule now is that any state action vaguely related to one of the rights enumerated must be taken to avoid discrimination without very good reason – to be judged, of course, by them – even if the right itself is not infringed at all.
In other words, because the “hostile environment” had something to do with housing, which had something to do with home and family life, this brought in a right to equal treatment. Furthermore, these same lawyers have developed a further doctrine that if inequalities of treatment happen to be aligned with race or national origin, then they are almost automatically unjustified.
For another, just sit back for a moment and think what the actual complaint was. It wasn’t an argument about anything done by the state; the government wasn’t discriminating against anyone or denying them housing. It wasn’t for that matter anything encouraged, or or even permitted by the government: discrimination by private landlords remained and remains illegal, and the government made this perfectly clear when introducing the policy.
But this didn’t matter. Although the ECHR is about governmental, not private action (in human-rights-speak it has no “horizontal effect”), this was the government’s pigeon. The government, as the judge sternly put it (with some support from previous human rights law), “cannot wash its hands of responsibility for the discrimination which is taking place by asserting that such discrimination is carried out by landlords acting contrary to the intention of the Scheme”.
Essentially, therefore, it all came to this: because of a policy introduced, with popular support, by an elected government, landlords entirely unconnected with the government were less happy to let to some groups than others and preferred safety in letting to those with straightforward documentation. Now, this may be a bad thing.
But to say it is contrary to human rights is a very strong claim. It is to say that the need to prevent actions indirectly causing private persons to treat people unequally is a matter of such importance that it needs to be taken out of the democratic political forum; and that it justifies characterising a a state which fails to prevent such actions does not deserve to be in the community of civilised countries.
With more judgments like this, what lingering respect people have outside the M25 for the European Convention on Human Rights is likely to begin to evaporate. And, more worryingly, it gives humanitarianism itself a bad name. The sooner the UK denounces the European Convention on Human Rights (all it requires is six months’ notice) and replace it with a bill of rights that limits itself to things that really ought to be outside the democratic political arena, the better.
(Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as UKIP’s candidate in Bath).