Those instructions consist of new provisions inserted last year into the Immigration Rules, the intended effect of which was to make it much harder for foreign criminals to resist deportation on Article 8 grounds. The Rules – made by the executive and endorsed by Parliament, but not contained in primary legislation – provide that, where certain criteria are met, “it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”. The assumption appeared to be that this would prevent judges – absent exceptional circumstances – from performing their normal function of determining whether deportation would be a disproportionate interference with the Article 8 right.
Quite properly, the Upper Tribunal has held that while the new Rules can “operate to enhance judicial understanding of the ‘public interest’ side of the [proportionality] scales”, they cannot relieve courts or tribunals of their obligation under the Human Rights Act 1998 to apply Article 8 itself. The Home Secretary has now concluded that Parliament’s wishes need to be enshrined in primary legislation, because judges have not only “ignored” the Rules, but have “got it into their heads that Article 8 … is an absolute, unqualified right”.
Of course, they have in fact done neither of these things – in the case which May appears to single out for particular criticism, the Upper Tribunal says “it is obvious” that Article 8 is a qualified right – and these overblown criticisms invite nothing less than ridicule. At one level, therefore, this episode is simply an illustration of the willingness of certain politicians and some sections of the media to collude in spectacularly ill-informed trashing of human rights law and the judges who administer it.
But however wrong-headed Theresa May’s critique might be, it forms part of a much wider public discourse about the nature and acceptability of human rights in contemporary Britain. This is so because May’s argument, shorn of its baseless analysis of the specific matter that she has in her sights, reduces to the bald propositions that the UK Parliament, not the judiciary, should and does have the ultimate say over matters pertaining to human rights. The former claim – a normative one – is contestable. The latter claim – a factual one – is demonstrably false.
Who calls the shots
Let us begin with the normative claim: that politicians must be permitted to call the shots because anything else would (as May puts it) cause “our democracy to be subverted”. Leaving to one side the fatuousness of May’s surface argument – after all, by deciding cases in accordance with the ECHR, judges are doing precisely what Parliament has instructed via the HRA – her underlying point reveals a more fundamental misconception that impoverishes public discourse about human rights.
That misconception is founded upon the simplistic assumption that any judicial decision which fails to chime with the thinking of the “moral majority” must be illegitimate and undemocratic (a related mindset underpins the Government’s perception of judicial review as an unwelcome irritant that gets in the way of effective administration.) Yet part of the point of human rights law is to operate as a brake upon the power of the majority, so as to afford protection to weaker, marginalised groups whose voices are so often drowned out in the political maelstrom. Nor does it follow that this is undemocratic, provided we are willing to remove the blinkers and acknowledge that democracy might mean something more (and more noble) than supplying the most numerous and powerful groups in society with an unqualified capacity to impose their worldview on everyone else. May’s analysis – and the background assumptions that it makes – thus reveals both an inadequate grasp of the function of human rights law and an unsubtle understanding of the nature of democracy.
Turning to her factual claim – that Parliament not only should, but does, have the last word on such matters – it transpires that May’s grasp of the law is equally dubious. That claim is clearly implicit when she says that primary legislation will be enacted specifying that foreign nationals who commit serious crimes “shall, except in extraordinary circumstances, be deported”, and that it is “inconceivable” that judges would then think themselves “entitled to decide how to balance the foreigner’s right to family life against our nation’s right to protect itself”. But what would actually happen if such legislation were enacted?
Under the HRA, courts and tribunals would remain obliged (so far as possible) to interpret the new Act consistently with Article 8. One possibility, therefore, is that the judiciary would conclude that the new Act, once interpreted in that way, did not permit deportation in breach of Article 8. If such a construction were not possible, then national courts would be unable to stand in the way of “exceptional circumstances” deportations that contravened Article 8. But, in that scenario, the new Act would very likely be the subject of a declaration of incompatibility under the HRA and, eventually, an adverse judgment in the European Court of Human Rights.
The final word
So, as a matter of law, does Parliament really have the final word? It is ultimately free to do as it pleases as a matter of national law (at least for as long as the notion of parliamentary sovereignty persists). But such an analysis, concerned exclusively with the domestic position, is unduly parochial. The legal reality is that so long as the UK remains a party to the ECHR, it is bound by the Convention rights and by the judgments of the Strasbourg Court.
There is, of course, room for disagreement about the precise meaning of those rights. As Roger Masterman has recently pointed out, domestic courts do – and need – not inevitably yield to Strasbourg’s interpretation of those rights. Equally, the margin of appreciation doctrine means that national governments and legislatures have some latitude. It would, therefore, be entirely possible for the UK Parliament to legislate in relation to Article 8 in a way that exploited the margin of appreciation. But legislation requiring judges to decide cases in a way that would exceed that margin would be another matter.
Reality check
To those for whom strong judicial protection of fundamental rights is a cause for celebration, one of the HRA’s great strengths is that it takes norms that are binding in international law and places them front-and-centre in the domestic sphere. In doing so, it puts under pressure the orthodox view that Parliament can do exactly as it pleases – including by removing or curtailing basic rights.
Of course, the Home Secretary and her colleagues are free to argue in favour of repealing the HRA and withdrawal from the ECHR, so as to conjure back into existence a golden age of true sovereignty in which the odiousness of parliamentary legislation is legally unchecked. But unless they are willing to make that argument – and pay the political and reputational price for doing so – it is time that they took a reality check and acknowledged the legal constraints that flow from Britain’s international obligations, for which the HRA is simply (but importantly) the conduit. It would be better still if such politicians were willing to recognise that human rights law, rather than being something with which we are (at least for the time being) merely stuck, is a valuable and far from undemocratic counterbalance to the majoritarian political process. Perhaps, however, that is asking too much.
Mark Elliott is Reader in Public Law at the University of Cambridge. He can be found on Twitter as @DrMarkElliott.
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