Why the Home Secretary’s attack on human rights judges is like a Bakewell tart
17 February 2013
The Home Secretary has launched a major attack on immigration judges in today’s Mail on Sunday, in language which even the Mail says is “highly emotive”. She finds it “depressing” that judges are consistently refusing to allow deportation of foreign criminals in “defiance of Parliament’s wishes”.
We will cover the issue in more detail by way of a guest post tomorrow, and you can read our analysis of the rulings which have caused her such annoyance but first I thought I would share a few thoughts.
This is a very angry editorial. The Mail and the Telegraph have been regularly baiting immigration judges in the past year (see my posts here and here), and Immigration/Upper Tribunal judges have attracted particular ire. The articles have often been inaccurate and misleading. It is a shame to see the Home Secretary stoking the public outrage with this article, much of which amounts to populist posturing.
Lip service is paid to the importance of the “power of Ministers” being “reviewed and restrained by independent judges”. But the theme is really that in the case of foreign deportations, judges should not be independent, but rather should bow to the will of Parliament.
Strictly, the Home Secretary is right that Parliament rules supreme. The problem is that she has ignored the absolutely central point, that it was Parliament which gave judges the job of interpreting the European Convention on Human Rights, including the dastardly Article 8 (the right to family and private life), when it enacted the Human Rights Act 1998.
It isn’t always easy to understand the way it all fits together, so let me bring in an analogy (warning: this may make you hungry). In the BBC’s Great British Bake Off, each week contestants bake cakes, tarts and other delicious treats. The are competing against each other, so the BBC has appointed two expert bakers to judge the contest.
Similarly, Parliament has, through the Human Rights Act, given judges the job of deciding whether the cake is a good cake, that is in saying whether the laws it makes comply with human rights law (as well as, more narrowly, individual decisions of public authorities do so).
Now, imagine a BBC executive decided to compete in the Great British Bake Off, and, having made what they considered to be the best Bakewell tart in history, finds the judges are unimpressed and is knocked out of the competition. They then write an angry editorial complaining that the Bake Off judges had defied the authority of the BBC, which after all employed them and set the rules in the first place.
Obviously, the BBC exec would be missing the point. And to an extent, so is the Home Secretary. It was Parliament which chose to incorporate most of the ECHR into UK law, that is to bind its own hands and give judges the task of deciding whether a law complies with human rights. So until the Human Rights Act is amended or repealed (the latter is Theresa May’s stated aim), Parliament can tell judges how to interpret human rights law, but the final say remains with the judges. The Home Secretary is now threatening to bring in primary legislation meaning, she says, that
it [will] surely [be] inconceivable that judges in this country will maintain that it is they, rather than Parliament, who are entitled to decide how to balance the foreigner’s right to family life against our nation’s right to protect itself
But unless that legislation amended the Human Rights Act, this is simply wishful thinking, as was the original change in the immigration rules which even Parliament’s Legislative Scrutiny Committee doubted would make any difference (hat tip to Free Movement). Rather, it is precisely the judges whose task it will be to decide how to balance “the foreigner’s” (I know, but it is the Mail) right. Because Parliament gave them the task, and it is highly unlikely that in this Parliament that task will be taken away from them.
The deportation of criminals is is a difficult, emotive issue, and it is after all the Home Secretary’s job to look tough on crime. I have no doubt that the Home Secretary and her advisors understand full well how the system works and much of this is posturing for a certain audience. It is certainly not meant for lawyers. But as I have said before, it is bad when ministers seek to corrode the independence of judges through these kinds of attacks. As Lord Woolf, former Lord Chief Justice has said, it undermines the rule of law.
It is also odd that although the Home Secretary makes much of her belief that the higher court judges will agree with her (the current attack is on the Upper Tribunal), she has already decided on primary legislation before finding out how these arguments will fare on appeal to the higher courts. Surely it is premature to blame the judiciary before the higher appeal courts have spoken on the issue. And if the decisions are not being appealed, the intransigence argument rather falls away.
I will end with this. The Home Secretary blames immigration judges for “damaging the notion of human rights”, meaning that
in the popular imagination, ‘human rights’ are wrongly, but perhaps understandably, becoming synonymous with legal dodges that allow criminals to escape proper punishment and to continue to prey on the public
That shows some chutzpah. Because this of course the same Home Secretary who famously, and wrongly,- told the Conservative Party Conference about the “illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat“. Even the Conservative Justice Secretary called the comments “laughable” and “child-like”.
The detail of the proposed legislation is yet to surface, and once the rhetoric clears away more sensible proposals may emerge which may make a real difference to foreign criminal deportations. Or, perhaps this is simply part of a long-term strategy to build up public support for repeal of the Human Rights Act by picking public fights with judges who cannot fight back. I expect the second prediction is more likely. Because the first seems, legally speaking, rather half-baked.
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