In a scene reminiscent of any that played out on our television screens during the highly enjoyable six seasons of Judge John Deed the Home Secretary Theresa May has vowed to crush judges who defy new laws on deporting foreign criminals in an article by the Mail on Sunday.

Theresa May accused judges of tearing up the British constitution (albeit an unwritten constitution) by flouting a decision by MPs to stop foreign criminals using the European Convention on Human Rights (ECHR) to avoid being thrown out:

‘Time and time again, we are treated to the spectacle of people who have been found guilty of rape or serious assault being given the right to  stay in this country. Some judges ‘have got it into their heads’ that the ECHR Article Eight ‘right to family life’ could not be curbed. Once Parliament had told them they were wrong and approved the rule change stating that it did not apply to serious criminals, judges should have toed the line. Unfortunately, some judges evidently do not regard a debate in Parliament on new immigration rules as evidence that. Parliament wants to see those new rules implemented.’

As Mr Adam Wagner writes in this article from 2011, any law student knows that the UK parliament is sovereign. This basically means that, unlike in the United States for example, no court, including the supreme court, can strike down legislation passed by Parliament. However, the Human Rights Act 1998 allows the courts to read legislation so as to give effect to the European Convention on Human Rights. By looking at the FAQ section on the Supreme Court website we see that the supreme court must give effect to directly applicable European Union law, and interpret domestic law so far as possible consistently with European Union law. It must also give effect to the rights contained in the European Convention on Human Rights.

Theresa May must be aware that article 46 of the European Convention on Human Rights, requires the government to “abide by” and must follow, final decisions of the European Court of Human Rights. Somewhat ironically UK courts actually need only “take into account” judgments of the Strasbourg court subject to section 2 of the Human Rights Act 1998. So the supreme court, which is subordinate to parliament in every other way, can do what parliament by its own choice actually cannot: that is, to ignore decisions of the European Court of Human Rights.

In Judge John Deed, Martin Shaw starred as a High Court Judge who was not afraid to question the establishment in the name of justice. The comedian David Mitchell once said about the show: “It would be all right if there was a programme about a maverick judge and how awful that is and why he’s a twat and it shouldn’t be allowed. But it’s not about that, it’s about how brilliant he is and how all judges, by implication, should be like that.” Perhaps this fictional character, often dubbed the “Best of The Strand” in the show, is how Theresa May wants the general public to view the judiciary.

Now senior legal figures including Lord Woolf, a former Lord Chief Justice, have hit back at the Home Secretary’s comments on rogue judges. Lord Woolf said that the Home Secretary’s remarks were damaging and “undermined the rule of law”. Lord Pannick in The Times said that: “There is a very simple answer to Ms May’s concerns. She is perfectly entitled to appeal.”  The Home Secretary may have insisted that she is “a great admirer of most of the judges in Britain” and accepted the need for the power of government ministers to be “reviewed and restrained” by the judiciary but her comments are clearly ill-judged.

Part of the function of Parliament is to make laws, which it does by enacting statutes. These laws impose obligations on the citizens of the state and the obedience of these obligations is enforced by the courts. That is how the Executive, Judiciary and Legislature work. That is how things are currently working. MPs approved new guidance for judges in July 2012 making clear the right to a family life as set out in Article 8 of the European convention on human rights was only qualified. The change was designed to end a string of cases where it was used to justify granting foreign criminals the right to remain in the UK rather than being deported to their home countries. However, it is not primary legislation. How can the courts enforce a law that is not even a law, merely “guidance” especially if it is supposed to override precedents set by earlier case?

As someone who has far more respect for our learned judges and the judiciary as a whole than many of our elected politicians, I too find Theresa May’s comments to be unacceptable at best and rabble rousing at worst. Her comments appear to be aimed at turning attention away from the government, and having the public question the judiciary when it should really do nothing of the sort in this situation. Regardless of what the Home Secretary may have the public believe there are not rogue judges gallivanting around London on liberal broomsticks disregarding the law on a mere whim intent on hurting the coalition government or in the hope that, “there will also be more victims of violent crimes committed by foreigners in this country – foreigners who should have been, and could have been, deported”. Even if it does make good copy for The Daily Mail, it simply is not true.

If the government disagrees with a decision of the courts then they are perfectly entitled to appeal that decision as they do in many cases. Alternatively they can and should enact legislation that will be enforceable, not guidelines that do not hold the same weight as primary legislation. It is not their place to bully or cajole the judiciary into some form of submission. That will indeed undermine the rule of law.

Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.

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