The latest session in May versus Judges over foreign criminals’ right to family life (Article 8 of the European Convention) is running as prescribed. Theresa May used the Sunday papers to demand that judges follow the wishes of parliament and deport more foreign criminals. A gaggle of retired judges and eminent lawyers told (£) her where to get off.
In terms of the PR and the politics, it is game, set and match to Ms May. As Trevor Kavanagh notes in The Sun, the Eastleigh by-election, where immigration may play as an issue, is an important backdrop for the Home Secretary, particularly given the imminent arrival of Romanian and Bulgarian migrants. But, as for the validity of the arguments, the judges are right, and it is they who are upholding the will of Parliament.
Ms May, after a sustained campaign in the media, introduced changes to the existing immigration rules on 13 June 2012, to iron out inconsistencies and to suit the government's policy objectives. The explanatory memorandum describes her aim with regard to foreign criminals’ right to family life:
'In particular, the new Immigration Rules reflect the qualified nature of Article 8, setting requirements which correctly balance the individual right to respect for private or family life with the public interest in safeguarding the economic well-being of the UK by controlling immigration and in protecting the public from foreign criminals.'
The phrase ‘qualified nature’ refers to the words of the convention: the right is subject to restrictions that are ‘necessary in a democratic society’. The government’s argument is that restrictions are necessary in order to protect economic interests and public safety.
The judiciary has been busy applying the new rules, balancing the rights of the individual with the interests of the public; but, the rules do not trump the Human Rights Act (1998), the relevant piece of primary legislation. The guidelines are, well, just guidelines. They were discussed in the House of Commons; but the Commons is not Parliament, and a Commons debate does not have the binding force of an Act of Parliament. The law cannot and should not change without full and proper parliamentary scrutiny and a vote.
The judiciary is upholding the will of Parliament in this case, not the Home Secretary. If Ms May doesn’t like the law, she should seek to change it by repealing the Human Rights Act.