Further to the row that has erupted between Theresa May and some judges over the deportation of foreign criminals, the government is understood to be applying to appeal the case of MF. The Home Secretary is plainly confident that her arguments will be well received in the Court of Appeal, having been found wanting in the Upper Tribunal (Immigration and Asylum Chamber).
The issue of deporting foreign criminals has been cast by some as a disagreement between senior judges and their more activist juniors, and not merely a clash between different arms of government. Theresa May’s team have been at pains to point out that the majority of senior judges support her case. Indeed, May quoted a High Court judge in her Mail on Sunday article:
‘the new rules are “unquestionably valid laws, democratically enacted under a procedure which is necessary for the efficient practical functioning of Parliament.”’
Mr Justice Mostyn wrote those words in a recent judgment on an application for the judicial review of an immigration case. There Mostyn was responding to a minor point about ‘democratic content’ made by the claimant’s counsel, who had advanced ‘a generalised challenge to the democratic credentials of the rules as a whole’. Mostyn rejected the point:
‘They are made by a democratically elected representative serving as Home Secretary; they are laid before Parliament; and they can be overturned by a Parliamentary vote. Sometimes, as was the case in relation to the July 2012 changes, they are the subject of a Parliamentary debate and vote.’
This argument about the democratic legitimacy of the rules is not really relevant to the current row. The judges quoted in this morning’s Times (£) do not doubt that the rules have democratic content; the question is whether Article 8, which is the relevant piece of primary legislation in the present disputes, can be overridden.