Standing up for the will of Parliament
The Home Secretary writes about her intention to ensure foreigners who commit crimes are deported from the UK, and how the judiciary must follow the will of parliament.
Theresa May is a Patron of RUCA.
Unless there are very exceptional circumstances, foreigners who have committed serious crimes in this country, or who have attempted to cheat the immigration system, should be deported from Britain.
Parliament wants that to happen, the public wants that to happen, and I want that to happen. But, too often, it is not happening. 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.
It is not in the national interest that this situation continues. What is going on? The short answer is that some of our judges appear to have got it into their heads that Article Eight of the European Convention on Human Rights, the ‘right to family life’, is an absolute, unqualified right.
This means that if a foreign criminal can show that he has a family in this country, they take the view he has a right to remain here, regardless of the gravity of the offences.
That interpretation is wrong. The Convention is quite plain: the right to family life is not an absolute right, like the right not to be tortured. It is a qualified right, and it can be restricted when that is required, for example, to protect public safety, or for the prevention of crime.
I thought that possibly the problem for the judges was that our Parliament had not explicitly stated how the right to family life could be restricted.
So in June last year I ensured that the House of Commons was able to debate my amendments to the immigration rules.
Those amendments stated that in the usual case, any foreign national who was convicted of a serious crime should be deported, regardless of whether or not the criminal had a family in the UK.
After a vigorous debate, the Commons adopted the changes unanimously. There was no division because there was no one in the Commons who opposed them.
I made it clear that I would introduce primary legislation should the Commons’ acceptance of my amendments not be sufficient to persuade judges to change the way they interpreted Article Eight. But I hoped that the outcome of the debate would be enough.
Unfortunately, some judges evidently do not regard a debate in Parliament on new immigration rules, followed by the unanimous adoption of those rules, as evidence that Parliament actually wants to see those new rules implemented.
As a justification for ignoring the new rules, one immigration judge recently stated that ‘the procedure adopted in relation to the introduction of the new rules provided a weak form of Parliamentary scrutiny. Parliament has not altered the legal duty of the judge determining appeals to decide on proportionality for him or herself’.
Some judges seem to believe that they can ignore Parliament’s wishes if they think that the procedures for parliamentary scrutiny have been ‘weak’.
Just think for a moment what this judge is claiming. He is asserting that he can ignore the unanimous adoption by the Commons of new immigration rules on the grounds that he thinks this is a ‘weak form of parliamentary scrutiny’.
I find it difficult to see how that can be squared with the central idea of our constitution, which is that Parliament makes the law, and judges interpret what that law is and make sure the executive complies with it.
For almost all of the long history of disputes between judges and Parliament, it has been common ground that Parliament is the ultimate law-maker, and that it is not for the judges to be legislators. It is essential to democracy that the elected representatives of the people make the laws that govern this country – and not the judges.
Yet some judges seem to believe that they can ignore Parliament’s wishes if they think that the procedures for parliamentary scrutiny have been ‘weak’. That appears actually to mean that they can ignore Parliament when they think it came to the wrong conclusion.
Most judges, especially in our higher courts, do not take this attitude. One High Court judge, for example, has explicitly recognised that the new rules are ‘unquestionably valid laws, democratically enacted under a procedure which is necessary for the efficient practical functioning of Parliament’.
The majority of judges share his view. BUT a minority think that it is their role to determine, for instance, whether or not foreigners who commit serious crimes shall be deported. They are able to frustrate Government policy and prevent the deportation of criminals.
It is now clear that only explicit parliamentary legislation will convince them that the law is what Parliament says it is, not what they think it should be.
I am therefore determined to introduce primary legislation that will specify that foreign nationals who commit serious crimes shall, except in extraordinary circumstances, be deported. Once this primary legislation has been enacted, it is surely 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.
It is depressing that the steps we have already taken should have been insufficient to produce that result. The inevitable delays inherent in passing primary legislation will mean that there will be many more foreign criminals who successfully avoid deportation on the basis that they have a family here.
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.
This is not a dispute about respect for human rights, which I certainly agree is an essential part of any decent legal system. It is about how to balance rights against each other: in particular, the individual’s right to family life, the right of the individual to be free from violent crime, and the right of society to protect itself against foreign criminals.
One of the most distressing results of judges taking it on themselves to determine how that balance should be struck, in defiance of Parliament’s wishes, has been the damage done to the notion of human rights: 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.
I am a great admirer of most of the judges in Britain.
I absolutely accept that the power of Ministers should be reviewed and restrained by independent judges who are appointed, not elected, and who are not accountable to the electorate for their decisions.
But the law in this country is made by the elected representatives of the people in Parliament. And our democracy is subverted when judges decide to take on that role for themselves.
- The Rt. Hon. Theresa May MP
(First published in the Mail on Sunday, 17th Feb ’13.)