It’s not every day that one’s client is a legendary figure – as mine was, in the shape of Vladimir Bukovsky. It turned out that he was far too ill to be tried on the charges that he faced, of having indecent images of children, which he denied. At 75, his body was giving out, and the Judge at Cambridge Crown Court found his cluster of illnesses meant he could not effectively participate in the trial, even via a videolink from his home. The prosecution was stayed and remains in suspense until, perhaps, he is well enough again. This was a man who took on the Soviet state as a boy – he was expelled from school and then from university in 1961 for ‘lacking the character of a Soviet citizen’, and he spent the next 12 years in and out of prisons, labour camps and psychiatric wards – for the offence of ‘hooliganism’ – or as we would say, for telling the truth about the state’s systematic abuse of human rights. In 1971 he smuggled documents out of Russia that showed how political prisoners were treated as insane – and was promptly locked up again. Recognised by now across the world as a prisoner of conscience, in 1973 he won his freedom, albeit in exile, by being exchanged like Cold War chess pieces for the leader of the Chilean Communist Party, Luis Corvalan, whom the Pinochet regime had imprisoned after the military coup. Bukovsky settled in the UK, and became a figurehead for the pro-democracy Russian diaspora all over the world. The Yeltsin government eventually restored his citizenship that the Soviets had removed, but Putin stripped him of it again when he had the temerity to stand against him in the 2008 presidential election. A man of extraordinary courage, but what a dismal last chapter to a heroic life.
Yesterday I attended the memorial service at the Temple Church for His Honour Judge Plumstead, who died aged 64 in September. The church was packed: family, friends, colleagues from Bench and Bar, and members of the Court staff at St Albans, where he sat. The service was both grand and intimate, with personal reminiscences, a poem read by his daughter, hymns for the congregation and pieces for the superb Temple choir, and the stirring words of comfort that the Church is so good at providing on occasions like this. John Plumstead was a rarity among judges – many are respected, some are liked, but almost none are loved. He was.
Julie Bindel (Guardian 12 August 2016) thinks it’s wrong for juries to try rape cases because they lack expertise and don’t find enough defendants guilty. If lack of specialist expertise barred randomly selected members of the public from being jurors, there would not be many jury trials left. Citizens, in committees of 12, are remarkably good at dealing with complex cases of all kinds, and at doing justice. Judges generally agree. Trial by one’s peers is not something to toss away lightly on the basis of stereotypes and misconceptions. Working out who is telling the truth is not a matter for experts in any type of criminal case. Our fellow citizens are good at it, whichever segment of society they come from. Yes, they can sometimes produce results that the powerful dislike: stand up Clive Ponting. It’s sad that a brave campaigner for the powerless like Julie Bindel comes out with the same sort of thing. Juries have far more legitimacy in trying serious crime than a case-hardened panel of ‘experts’ ever would.
In rape cases juries are not less likely to convict: according to Professor Cheryl Thomas’s 201o study ‘Are Juries Fair?’ (answer: yes), in the 2-year period she studied juries, they convicted more readily in rape trials than in comparable cases of serious violence, at 55%. In the larger Court centres across England and Wales, the overall conviction rate ranged from 69% to 53%. The reasons for the differential were unclear but may be due to uneven distribution of different kinds of cases between the Courts. So rape convictions are not out of line with the general pattern.
Very few rapes are stranger rapes; in many cases, the accused and the accuser know one another and are the only significant witnesses. Where the issue is consent, the fact that ‘penetration’ has occurred is admitted and needs no scientific proof. The jury invariably decide the case by weighing one person’s word against another. That is seldom an easy task, in Court or outside, when judging an accusation of rape or anything else. The law demands –rightly – that no one may be convicted of an offence unless the jury are sure of guilt. They may think the evidence proves the accused is probably or possibly guilty – there may be strong suspicions – but still not enough to get over the line into being sure. That high standard protects the innocent from false or mistaken accusations – a protection of great value for which we should all be thankful.
Juries in rapes now receive explicit legal directions from the judge that are designed to dispel myths about complaints of rape. There are statutory restrictions on evidence about an accuser’s ‘sexual history’, which are rigorously applied. Juries hear about it only if it would cause serious unfairness to the defence if it was withheld. Judges have to strike a balance.
Prosecutors and Judges have specialist training before they can take on rape and serious sexual offence cases. Prosecutors are required to inform witnesses of the type of questioning they may face from the defence. In cases involving vulnerable witnesses, the Judge now receives the questions to be asked in cross-examination in advance, and may disallow inappropriate ones.
We could do more. A compulsory programme of vulnerable witness training for all advocates is coming. We could make the Court experience better for witnesses– by for example restoring the canteens that went in a recent mean-spirited round of cuts, so people at least can get a cup of tea while waiting. The MOJ could see to it that trials come on quicker.
What Julie Bindel proposes is to strip away a vital civil liberty because she thinks too many guilty men walk free. Perhaps some do: it may be a high price for our freedom, but it’s still worth paying.
On 20th November 2013 Lord Sumption of the UK Supreme Court gave a lecture in Kuala Lumpur, entitled The Limits of the Law. It is well worth reading. The Supreme Court is rapidly developing into a full-scale constitutional court with enormous influence on life in the UK and in many other countries with a common-law tradition, including Malaysia, where its decisions command respect. When a member of that Court expounds his views about what Judges do and what they should be doing, anyone interested in law should pay close attention.
Sumption continues the theme of judicial parsimony he set out in his 2011 Mann Lecture, before his appointment to the Supreme Court. He believes that there is too much litigation in general, and in the field of public law and judicial review it has taken a wrong turning with excessive intervention in matters that are best left to others. ‘Parliamentary scrutiny’, he stated then, ‘is generally perfectly adequate for the purpose of protecting the public interest in the area of policy-making. It is also the only way of doing so that carries any democratic legitimacy.’ He envisages a clearly marked realm of policy into which judges must not trespass. Sir Stephen Sedley, whose absence from the Supreme Court is to be lamented, set about Sumption in the London Review of Books: also well worth reading. He criticised him for making assertions without evidence; misunderstanding the relationship between administration and judicial review in France, and misconstruing several major public law cases in the UK. Co-incidentally, one of the decisions that Sumption cited in 2011 in support of his view was the 1994 Pergau Dam case, which concern the construction of a dam in Malaysia: the Foreign Office wanted to use development funds for the dam, and would win export orders for British weapons in return. The High Court held that this use of the funds was outside its powers under the relevant statute, and was therefore unlawful. According to Sumption, this was an improper incursion into matters of policy; in Sedley’s view, it was the Court doing its proper job of construing a statute. (The Foreign Office chose not to appeal.)
In the Kuala Lumpur lecture, Sumption (wisely, no doubt) refrains from mentioning Pergau, but he repeats the French canard that occasioned the Sedleyan put-down, while maintaining the 2011 thesis. He now turns his big guns on the European Court of Human Rights for making a land-grab over matters far beyond the contemplation of the authors of the European Convention of Human Rights & Fundamental Freedoms, thereby upsetting the constitutional balance between Courts, Parliaments, and Executives in member states – particularly the UK. He criticises the Strasbourg doctrine of the ECHR as a ‘living instrument’:
…the Strasbourg court develops the Convention by a process of extrapolation or analogy, so as to reflect its own view of what rights are required in a modern democracy. This approach has transformed the Convention from the safeguard against despotism which was intended by its draftsmen, into a template for many aspects of the domestic legal order. It has involved the recognition of a large number of new rights which are not expressly to be found in the language of the treaty.
It is questionable whether the draftsmen intended their Convention to be treated like holy writ, frozen in time in 1950; but even if they did, Sumption gives no legal reason for later generations of judges to refuse to adapt its terms to changing circumstances. He skates over the important distinction between individual judgments, which may be questionable, and the principle of adaptability, which no one would question in relation to a domestic statute. For example, it would be absurd for me to defend a charge of ‘wanton and furious driving’ under s.35 of the Offences Against the Person Act 1861 (still in force) on the basis that I was driving a car, when the statute was intended for horse-drawn vehicles before cars existed. The provision is alive enough to apply to things ‘not expressly to be found in the language of’ the statute. The debate is as arid as that between American ‘originalists’ and their opponents over how to interpret the US constitution. The disagreement there, though couched in the language of law, masks the real, political dispute between conservatives and liberals within the judiciary, and beyond.
When Sumption says that Strasbourg acts ‘to reflect its own view of what rights are required in a modern democracy’, he insinuates that the judges are imposing their own views ex cathedra or from under the palm tree. In fact, the typical judgment will resemble that of a UK Court, by looking for authority for its reasoning in national law, European law, international treaties, and the previous decisions of national Courts as well as its own. A good example is Maslov v Austria, a leading case concerning the rights of a criminal facing deportation. The Court cited Austrian statutes, Recommendations of the Committee of Ministers of the Council of Europe, the UN Convention on the Rights of the Child (incorporated into Austrian law), EU Council Directive 2003/109/EC, decisions by the European Court, and decisions of its own. It then gave a reasoned judgment, based on these materials, on the criteria that national authorities should use when weighing up considerations for and against deportation, within the framework of Article 8 of the Convention. There is no hint of the palm tree.
Article 8, in Sumption’s view, is particularly problematic. He claims that it has been enlarged by Strasbourg in to include deportation among many other things, which are not ‘warranted by the express language of the Convention, nor in most cases are they necessary implications. They are commonly extensions of the text which rest on the sole authority of the judges of the court.’ He seriously misdescribes what the Court did in Maslov and how it reached its conclusions. The Judges relied on authorities well beyond their own sole authority. They behaved like the Supreme Court itself when it interprets relevant statutes and cases in order to reach its conclusions – which may change the law in an unforeseen way.
The only concrete example of this deplorable practice that Sumption gave in Kuala Lumpur is the prisoner voting-rights cases, Hirst v United Kingdom and Scoppola v Italy, neither of which relied on Article 8, but were brought under Article 3 of the 1st Protocol of the ECHR, (the right to free elections). In Hirst, the Court held by a majority that the UK’s blanket ban on all prisoners voting in elections was unlawful. It called on the UK to refine the ban. It reached its decision by reference to the Convention and an array of European, Canadian, and South African materials. Its process, as in Maslov, was readily recognisable to a common lawyer who demands authority and precedent for propositions of law. Now, whether the Court got it right is an open question; the fact that there were dissenting judgments indicates that the issues were unusually difficult to resolve. Sumption not only thinks the Court got it wrong, but they should never have considered the matter at all. But if legal instruments such as conventions and treaties incorporated into national law make a question justiciable, then a person cannot be blamed for asking the Courts to decide the question, and the Courts cannot be blamed for making decisions.
Sumption takes his complaint further: not only should Strasbourg not consider such matters, but in ruling on them it engenders a ‘democratic deficit’:
The treatment of the Convention by the European Court of Human Rights as a “living instrument” allows it to make new law in respects which are not foreshadowed by the language of the Convention and which Parliament would not necessarily have anticipated when it passed the Act. It is in practice incapable of being reversed by legislation, short of withdrawing from the Convention altogether. In reality, therefore, the Human Rights Act involves the transfer of part of an essentially legislative power to another body.
This is opaque. When Parliament passed the Human Rights Act it knew that Strasbourg treated the Convention as a living instrument; it could therefore have predicted that the law would continue to develop, as it had done before the Act. Parliament’s crystal ball was no better or worse than anyone else’s, even if its powers of scrutiny are ‘perfectly adequate. So no surprises there. Section 3(1) of the Act provides:
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights (emphasis added).
That, I suggest, is a fairly modest aim. If a nation’s Parliament adopts a set of human rights principles on behalf of its citizens (which even the extra-judicial Sumption admits to finding ‘wholly admirable’), the least it can do it tell itself to stick to them ‘so far as it is possible to do so’. It did not sign up to them exactly as Strasbourg found them to be in October 2000, frozen in time forever, but as they continued to evolve in changing circumstances. Far from transferring its proper legislative function to ‘another body’, Parliament ‘brought rights home’, in the phrase in use at the time.
The Strasbourg judges are neither poets nor unacknowledged legislators of any kind. They examine the lawfulness of actions by States, according to principles that the States (some more democratic than others) have adopted. States normally win. Some people think the Court is too deferential to States. If a State withdrew from the Convention in order to be relieved from compliance with Strasbourg, it could appoint its own Human Rights Court to make rulings on the Convention, which it could call its Supreme Court. If the rulings of that Court were subject to reversal by Act of Parliament – a practice to which Sumption refers in relation to non-human-rights cases – then what status would human rights decisions, and the rights themselves, have? Much reduced. They would be temporary, provisional, precarious. Under a British Bill of Rights, Lord Sumption and his colleagues might make a human rights decision that the government disliked, and Parliament could then reverse it by legislation. If by some constitutional wizardry that was made impossible, people would make the same complaints about our Supreme Court as they now do about Strasbourg – unless the members of that Court all adhered to the self-denying, Sumption doctrine. Our Supreme Court would probably look more like the US version, complete with its own version of fights about ‘originalism’, but without the sacred text of their Constitution to guide all the branches of government. How much of an advance would that be?
Anyone wanting an outline of the bi-polar disorder that affects official thinking about torture in particular and human rights in general should read Ian Cobain’s Cruel Britannia (Portobello Books, November 2012), and cross-refer to Lord Bingham’s The Rule of Law (Penguin 2005).
Kenneth Clarke, the last Minister of Justice, is still pushing the Security & Justice Bill. So far, he has failed to persuade Parliament that secret trials, in which the government alone get to decide what evidence should be made public, are a good idea. The spy services want their dark deeds kept dark. They dread being challenged with accusations of criminal or civil liability. Even if the government retreat a little on the Bill, there is likely to be more not less secrecy in legal proceedings that are deemed sensitive. Clarke’s successor, Chris Grayling, thinks the UK should seriously contemplate withdrawing altogether from the European Convention of Human Rights.
The idea that citizens have human rights that they can assert against public authorities in Court is, bizarrely, regarded as something foreign and disreputable. Very few politicians have stood up to defend the Human Rights Act, whose main objective was to allow UK citizens to use UK Courts to assert rights they had anyway, rather than go to Strasbourg. Now the heat is also on Judicial Review, the precious and entirely home-grown legal challenge to administrative decisions – not on their merits, but on the narrower basis that the decision-makers have failed to follow proper and lawful procedures. All the while, the continuing assault on legal aid denies poor citizens access to the law, which has grown into a forest of rules and regulations in so many areas that touch our lives, so that anyone entering it without expert guidance should abandon all hope.
In all these policies, and especially in the doublethink around torture, we can see what the late Bernard Williams condemned as ‘Government House utilitarianism’ in action. He used the term to characterise an account of morality given by the nineteenth philosopher Henry Sidgwick in his The Method Of Ethics. Sidgwick asked ‘whether exceptions should be permitted from ordinary rules on Utilitarian principles’. He thought society was made up of ‘enlightened utilitarians’, an elite minority, who could live good lives by ‘refined and complicated’ rules with numerous exceptions; and everyone else, for whom this more sophisticated system ‘would be dangerous’. He said that
‘… on Utilitarian principles, it may be right to do and privately recommend, under certain circumstances, what it would not be right to advocate openly; it may be right to teach openly to one set of persons what it would be wrong to teach to others; it may be conceivably right to do, if it can be done with comparative secrecy, what it would be wrong to do in the face of the world; and even, if perfect secrecy can be reasonably expected, what it would be wrong to recommend by private advice and example.’
Williams saw this as little more than organised hypocrisy, practised brutally by the British colonial elite in the Empire, for their own advantage.
Ian Cobain in Cruel Britannia shows that the British Government operated a policy of torture on its German enemies during and after World War II, and later in the colonial wars that ended the Empire in Cyprus, Palestine, Kenya, Malaya, Aden, and in Northern Ireland; and then in Iraq, and at arm’s length (but nonetheless) in the Americans’ so-called war on terror, with connivance at kidnapping for trial in the USA (euphemised to ‘rendition’) and the shipping of detainees for interrogation by the torture squads of numerous unsavoury regimes around the world (‘extraordinary rendition’). With forensic skills of a high order, through official records and by talking to witnesses and survivors, Cobain has traced the genealogy of torture methods, and of the men who twisted the minds and bodies of their prisoners, from 1945 to the present. The same methods of torture, and the same men and their pupils, reappear over and over again, in every location where Britain has used torture. The tortured had minimal redress. Government House routinely lied and destroyed evidence. It took 50 years for the Foreign Office to discover an archive from Kenya which they foolishly forgot they had (or they would surely have destroyed it too), and it took a Court order for them to disclose it to the elderly men and women whom British officials had starved, castrated, raped, and tortured in other ways that would have charmed the SS. Cobain’s account is not ancient history. We do not know what the Government gets up to in secret now, and lies about – in the name of its own utilitarian morality: the rest of us are not to be trusted with the truth about its view of right and wrong, and where its and our interests lie. We are to be discouraged from finding out.
I want it to be normal for Ministers and the people who work for them to be held to account, not just every few years at elections, but while they are in power. I don’t want to rely only on the brilliance of an Ian Cobain to tell me what has been done in my name. Government should operate on the basis that I and everyone else can readily assert our rights not to be tortured or subjected to inhuman or degrading treatment or punishment (Article 3 of the European Convention of Human Rights); not to be killed (Article 2); to have a family and private life that is not interfered with for no very good reason (Article 8); to express myself freely (Article 10); to practise my religion (Article 11); not to be locked up without due process of law (Article 5); to have a fair trial (Article 6). Having rights protected by law is a modest demand and, sadly, a modest protection against the State’s desire to get its own way at any price. But at least it is better than not having rights.
English law regards torture as ‘an unqualified evil’: so said Lord Brown in the famous 2005 case A and others v Secretary of State for the Home Department (No 2). But he was not immune from the bi-polarity which afflicts the subject. He said that the executive:
…has a prime responsibility to safeguard the security of the state and would be failing in its duty if it ignores whatever it may learn or fails to follow it up. Of course it must do nothing to promote torture. It must not enlist torturers to its aid (rendition being perhaps the most extreme example of this). But nor need it sever relations even with those states whose interrogation practices are of most concern. (emphasis added)
Even Lord Bingham saw a distinction between the use in Court of evidence obtained by torture (never), and its value for intelligence purposes (as ‘duty’ required). In the same case, he said:
I am prepared to accept…that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of article 3 for which the United Kingdom would be answerable, but no breach of article 5(4) or 6.
So even the most forceful contemporary defender of Rule of Law principles found that the fruits of torture have a lawful use, even if torture itself must be condemned. Banning torture-evidence in Court – where the public would find out – and the approval of its use for intelligence purposes – in secret – must have given the torturers and their masters in Government House great comfort. The proposed limitations on our ability to use the law to uncover secret wrongdoing mean that Ian Cobain’s book is likely to need regular updating.
The law of self-defence is clear and based on common experience. In 1971 the Privy Council in the leading case of Palmer v R  AC 814 held that
It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary.
Section 3 of the Criminal Law Act 1967 provides that
A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large
Section 76 of the Criminal Justice & Immigration Act 2008 adopted the common law principles from Palmer and other leading decisions, without changing the substance of the defence. Section 148 of the Legal Aid Sentencing & Punishment of Offenders Act 2012 amended Section 76, to give further ‘clarification’.
The law permits the citizen to use reasonable force for the following purposes:
- Defence of another person
- Protection of property
- Making a lawful arrest
- Preventing crime
The citizen includes the police officer, to whom the law grants no additional licence to use violence.
What is reasonable is measured by the belief of the person using force. There may be no time for anything other than an instinctive reaction. The law does not require a fine calculation of just what amount of force is needed, but it does require that the use of force should be necessary in the circumstances, as the person concerned saw them. There is no duty to run away instead of using force. “If … in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken” (Palmer).
There are limits. An obviously disproportionate response would not be reasonable – such a shooting an unarmed burglar in the back, and killing him, as he ran away. This is what occurred in the notorious case of Martin  1 Cr App R 27. The use of violence has to be controlled or else the law will yield to lawless vigilantism.
The Crown Prosecution Service has published Guidance on how to deal with cases of self-defence. Where a person has used force against some one committing a crime, the CPS advises
Common examples are burglary or theft from motor vehicles. In such cases, prosecutors should ensure that all the surrounding circumstances are taken into consideration in determining whether a prosecution is in the public interest.
- Prosecutors should have particular regard to:nature of the offence being committed by the victim;
- degree of excessiveness of the force used by the accused;
- extent of the injuries, and the loss or damage, sustained by either or both parties to the incident;
- whether the accused was making an honest albeit over zealous attempt to uphold the law rather than taking the law into his/her own hands for the purposes of revenge or retribution.
People who think that the law needs changing to free householders to take gross and disproportionately violent action against burglars should read the CPS Guidance. They should also apply some commonsense and ask whether it’s more likely that a burglar will take a weapon if he thinks he’s going to be attacked. Do we want more dead burglars and more dead householders?
The Home Office’s Statement of Intent: Family Migration (June 2012) sets out the Government’s plans to reduce the number of immigrants coming to the UK from outside the European Economic Area (and those staying here, especially if they have committed crimes), to be enacted in a revision of the Immigration Rules in July. It makes no reference to domestic pets, but includes a major change in the approach to the right to family and private life in Article 8 of the European Convention of Human Rights. The new rules, it is said, will expressly incorporate the requirements of Article 8 into the Immigration Rules. But much is left unexplained, in particular the role of the Judges in determining Article 8 appeals. The intention appears to be to stop Judges using their own discretion when they think that an official has made the wrong decision in an Article 8 case.
Since the Human Rights Act 1998 came into force, something like a parallel jurisdiction has evolved in Article 8 cases in immigration law (with echoes of the availability of remedies in equity where none existed at common law). An applicant who fails to comply with the requirements of the Immigration Rule that applies to her case may still succeed if she can show that she has formed a family or private life, and the state cannot prove that removal or a refusal to allow entry is justified and proportionate on public policy grounds. A large body of case law has grown up around the way in which ‘decision makers’, including judges, should look at Article 8. It was originally thought that it could only apply to claimants themselves, and not family members who would be affected by adverse decisions. That changed when the House of Lords ruled in Beoku-Betts v SSHD  UKHL 39 that decision makers should take account of the impact of a person’s removal upon those sharing family life with him as well as its impact upon him directly. In the leading case of Huang  UKHL 11 they held that there is no requirement for an appellant to prove exceptionality, although they thought that cases in which removal was otherwise lawful, but are found not to comply with Article 8, would be rare:
“…the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality.” 
They held that the task of a Tribunal considering an Article 8 appeal was ‘to decide for itself’ whether the challenged decision is unlawful as incompatible with a Convention right, or compatible and lawful. They referred at para. 18 to the State’s ‘negative duty to refrain from unjustified interference with a person’s right to respect for his or her family’ and also its ‘positive duty to show respect for it’; they went on to describe the ‘core value’ which Article 8 exists to protect:
“…Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant. The Strasbourg court has repeatedly recognised the general right of states to control the entry and residence of non-nationals, and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where they prefer to live. In most cases where the applicants complain of a violation of their article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of article 8, the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved. Proportionality is a subject of such importance as to require separate treatment.” (emphasis added)
The trend has been for the UK Courts, taking the lead from not only from the European Court of Human Rights in Strasbourg but also from decisions by the European Court, applying EU law, to make it easier for Article 8 claims to succeed, by emphasising the state’s ‘positive duty to show respect’ for family life. The welfare of children is pre-eminent in cases where a parent faces removal, and if a child’s welfare is likely to suffer, removal of the parent may be impossible. This applies across the board, notoriously to cases in which ‘foreign criminals’ (doubly bad!) rely on their family rights to avoid deportation.
The Home Secretary’s infamous ‘cat’ speech merely gave infelicitous expression to a view that too many people were being let in (and too many criminals were being allowed to stay) through Article 8, and that it was somehow an abuse. The Home Office now intend that the new Immigration Rules will supersede the separate consideration of claims under Article 8 in all but the most exceptional cases:
The new rules will reflect fully the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government’s and Parliament’s view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. 
What happens at present is that the Home Office (or Visa Officer or Entry Clearance Officer in an embassy abroad) will assess an application with family/private life elements under the relevant Immigration Rule, and then again under Article 8. The ‘refusal letter’ will typically set out both assessments. A failure to consider Article 8 at all will almost certainly cause a Tribunal to find that the decision was ‘not in accordance with the law’ for the purposes of Section 84(i)(f) of the Nationality Immigration & Asylum Act 2002, and new a decision will have to be taken – usually by the Tribunal itself.
So in a sense, the government is merely doing a tidying-up exercise, reuniting the Immigration Rules with the principles of Article 8 – so that ‘equity’ and ‘law’ are one in this area.
But Article 8 will not go away, and the extensive jurisprudence on it – from the Strasbourg and UK courts – will not go away either. According to the Statement of Intent
This does not mean that the Secretary of State and Parliament have the only say on what is proportionate. The Courts have a very clear role in determining the proportionality of the requirements in the Immigration Rules. It is for the State to demonstrate that measures that interfere with private and family life are proportionate. But a system of rules setting out what is or is not proportionate, outside of exceptional circumstances, is compatible with individual rights, as has been accepted by the Courts in other spheres, e.g. housing law. Where the rules have explicitly taken into account proportionality, the role of the Courts should shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules. 
This is a puzzling statement. It suggests that the ‘Courts’ – including the Asylum and Immigration Tribunal? – will not look at whether ‘individual administrative decisions’ are proportionate in Article 8 terms. The experience of Immigration Judges is that sometimes those decisions are wrong because officials have failed to give due weight to matters that show that the proposed interference with Article 8 rights is disproportionate: for example, where the official failed to appreciate that in a relationship between adult family members there are exceptionally close emotional ties, and real, committed and effective personal support – enough to bring the relationship within the protection of Article 8. The government appear to think that only a challenge to the rules themselves will be possible. It is not the role of the Tribunal to ‘review the proportionality of the rules’ – whatever this means. If the rules themselves do not comply with the ECHR, that is a matter for the higher courts to consider. Hitherto, the Tribunal has been required to determine each case on its own facts, and has the duty to make its own findings of fact – including findings about whether an adverse Article 8 decision was ‘proportionate’. If the plan is to restrict the Tribunal’s independent fact-finding and its ability to reach its own decisions on proportionality, it is arguable that appellants would be deprived of an ‘effective remedy’ for breaches of their human rights – something guaranteed under Article 13 of the Convention.
It’s almost as if the Home Office don’t trust the Judges.