Theresa May this weekend launched a blistering and unprecedented attack on ‘a minority of judges’, accused them of ignoring the will of Parliament by refusing to deport foreign criminals. Remarkably, she said that:
A minority think it is their role to determine whether or not foreigners who commit serious crimes shall be deported.
A lawyer’s answer is that this is exactly what judges have been appointed to do and indeed instructed to do by primary legislation passed by Parliament. It is not their role to do as May demands in every single case. This is not North Korea.
Back in June 2012 I wrote that:
May wants judges always to answer ‘yes’ to [the question of whether removal should take place] in every case, but in law they cannot. Our judges remain independent and must carry out an independent assessment. The only ways to achieve what May wants are:
1. Modify the Human Rights Act
2. Withdraw from the Council of Europe
3. Remove access to the courts, or
4. Do away with an independent judiciary.
The nature of her attack on the judges comes perilously close to number 4 on the list. Fortunately, Chris Grayling, the Lord Chancellor, acted swiftly to uphold the continued independence of the judiciary, as is his obligation under s.3 of the Constitutional Reform Act 2005, and issued a statement clarifying May’s myriad misconceptions. It is such a relief to have him in post standing up for the rule of law, otherwise things might have gotten nasty.
As Mr Grayling has done such a fine job, there is no need to repeat the exercise here. May’s claims are clearly nonsense in a legal sense. But it is wrong to see this attack on judges as remotely legal in nature. It is a very effective piece of political posturing that cements her position as a Conservative Party leadership contender.
I wrote previously that the recent human rights cases dealing with the contentious new rules ‘represent a demolition of the Government’s attempts to gain exclusive ownership over Article 8′ (emphasis added to original). I stand by that statement. Parliament has not abolished or modified the Human Rights Act, which continues to bind judges. The debate in the Commons so heavily relied on by May was a farce (read it for yourself, as well as the scrutiny committee report linked yesterday). We still more or less have separation of powers in this country. The judges must continue to rule according to laws passed by Parliament, not according to Government dictat.
If May’s attack can be taken at face value, though, it looks like a time is coming when Parliament will modify the Human Rights Act by passing primary legislation. I doubt many if any politicians would be willing to side against her on behalf of foreign criminals. Once the principle of exception is established, which unpopular group will be next? Foreigners generally? Terrorist suspects? Home grown criminals? Benefits claimants? The disabled? Some religious, ethnic or racial groups? Human rights cease to be universally human when some humans are pushed into the cold outside the tent.