Coffee House

Stop blaming judges, Ms May, and repeal the Human Rights Act

18 February 2013

9:12 AM

18 February 2013

9:12 AM

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.

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Show comments
  • bwims

    Too scared to upset the Lib-Dem Marxists and the closet Conservative-Marxists (which include her boss)

  • vvputout

    The UK needs a Bill of Rights in a modern form, as the 1689 document is inadequate. If incorporating the Convention is felt to be inappropriate, then base the BoR on the Canadian Charter of Rights and Freedoms, which Justice Bader Ginsburg of the US Supreme Court has commended as being better than the US BoR for the 21st century.

  • Grrr8

    Ah the gnashing of teeth and rending of garments about the 166 foreigners the courts would not allow to be deported last year. In a country with a prison population north of 80,000. Me thinks a competitive by election is around the corner (hello Eastleigh) and a little nasty from the nasty party is surmised to generate some votes.

  • Smithersjones2013

    How many times has May been caught posturing over immigration? The problem is posturing is the last refuge of the impotent. Either May should use her power as Home Secretary and legislate so Judges no longer have the wiggle room to make a mockery of this governments stance on immigration or she should shut up and let people realise how spineless this government actually is.

  • Daniel Maris

    The only sensible approach is to withdraw from all treaty obligations relating to control of our borders.

    Then start from scratch. Then we can invite as needs be people who have something to contribute to our society and we can give refuge to people of our choosing – people who want to live in a democratic free society and mix freely with all other sections of our society.

  • DWWolds

    Unfortunately, Mrs May has to work within the confines of a Coalition Government and the reality is that a Bill to repeal the Human Rights Act would have little chance of getting through Parliament.

    Perhaps even more unfortunately, at the last election voters seemed to be of the opinion that a coalition government would be a good thing. Presumably they were naive enough to believe that the MPs of various colours would then work together for the good of the country rather than spend all their time political posturing. Some hopes!

    However, it might just make sense for the Conservatives to try to introduce such a Bill. At least Labour and the LibDems would then have to make their case to the electorate for voting against it.

  • David Boothroyd

    The Human Rights Act 1998 gave no-one any additional human rights they did not already possess. Repealing it will not take away any human rights that anyone currently possesses.

    • ScaryBiscuits

      David, that is not true. Human rights deriving from English Common Law are defined by custom and practice. They are ‘bottom-up’ in that they are set by the people themselves. They are neither given by the government nor the government’s to take away. That had been the accepted position in England since 1215 when King John signed the Magna Carta. The EU laws on human rights take the opposite approach, which has roots in Roman law approach (very similar to that the barons rebelled against), where rights are given to us by gracious rulers. Unlike Common Law, which is essentially empirical, EU Human Rights are theoretical, top-down and based on an often arbitrary balance of conflicting ideas, which are resolved by a wise ruler or his appointed judge.
      The UK courts where judges are trained only to look at the facts before them are uniquely ill-suited to the EU approach. UK judges lack the political nous and pro-government bias that is essential for judges on the continent to get their jobs in the first place. They thus produce unpredictable verdicts under EU law that bring the whole system in to disrepute. They have also created in practice new rights (by accident or design) that were never the intention of the original drafters of Human Rights treaties.

      • vvputout

        The Convention is not an EU document; it predates the EU and there are parties to it (e.g. Turkey) which aren’t members of the EU. Furthermore, it was drafted primaily by an English lawyer in the Anglo-American (common law) tradition.

        • Andy

          The Convention isn’t an EU Document, but the general point ScaryBiscuits makes is part of the problem. The Continental Europeans generally work on the principle that you can do what you are allowed, whereas the British assume you can do anything unless it is forbidden.

          There is no doubt that the Convention has been dragged far from its original intention and meaning – Votes for Prisoners is a prime example of what I mean. When the Convention was drafted this issue was considered but was excluded because some counties did not allow prisoners to vote. This was entirely correct and lawful. So the question is how can it have been so in 1950 and now found to be against the Convention ? Answer: the Convention is being rewritten by activist Judges. Therein lies the problem.

  • Russell

    The United Kingdom governments prime function and duty is the protection of the people of the United Kingdom.
    The government should therefore deport any foreigner or refuse entry to any foreign person who is a danger to the people of the United Kingdom.
    Judges are failing in their duty to carry out the wishes of the government, and therefore the people, of the United Kingdom if they interfere or prevent such actions.

    • Grrr8

      What happens when we, the people of the UK, need protection from our government?

  • Reborn

    Like so many well intentioned wheezes, the HR Act has totally backfired & been used by amoral lawyers & their undesirable (taxpayer funded) clients to override not just the government, but also the human rights of their next set of victims.
    Parliament is supreme under our constitution.
    The fact that the Common Purpose Brigade & the EUfanatics have made Parliament subservient to foreign jurisdictions need not trouble us.
    Just repeal the HR act as the first stage in reclaiming our nation’s independence.

  • ScaryBiscuits

    There is clearly a problem with a minority of the judiciary, as Theresa May was careful to say.

    Mr Justice Blake, the senior immigration judge, is an extreme leftie with no compunction using his prejudice in favour of immigrants. He was recently found by the supreme court to have conducted ‘a search for reasons not to deport’ a criminal, yet he stays in post still using the same ‘erroneous approach’. He and his colleagues make widely different decisions in similar cases and have ignored repeated attempts by Parliament to correct matters such that the law is now a impenetrable mess of case law and statute.

    Yes the law does need tidying up but also judges like Mr Blake who abuse their positions need to be removed – otherwise whatever law Parliament writes will be deliberately misinterpreted.

    • HooksLaw

      Good point well made

    • telemachus

      The Judiciary are apolitical
      To attack them is the style of Franco and the South American right wing regimes of the 70’s
      Perhaps will move on to espouse the disappeared philosophy

      • FMarion

        telemachus: Then I must congratulate the UK. You have achieved what had been previously thought to be impossible by creating a pristinely apolitical judiciary. I don’t know how you managed to find people who would never think of what is best for their political parties and totally ignore their own political principles in favor of a single-minded devotion to applying the law as it is written but well done!

  • Vulture

    Right on David! But you are assuming that Theresa May and the rest of her useless Government are remotely interested in carrying out the will of the people or their Parliament. She is not, so the chances of her doing what you suggest are nil..

    The record shows that May and the leadership of the other three parties at Westmonster are only there as lackeys of the EU and will carry out its edicts to the letter.

    Perhaps that is why three out of four respondents to a poll in today’s Europhile FT want to get out of this monstrous and increasingly sinister organisation and get their country back.

    • andagain

      You do know that most of the people voted for parties that support the Human Rights act, and that therefore those parties have more MPs than the Tories?

      • fubarroso

        More people maybe, certainly not most people.

        • andagain

          In 2010, Labour got 29.66% of the vote and the Liberal Democrats got 23.56%. This totals 53.22% of the vote i.e. more than half.

          • fubarroso

            And the turnout was around 65% so 53% of 65% is 34% of the electorate. So hardly “most people”.

            • andagain

              Fine. Most voters voted for parties that favour the Human Rights Act.

              • msmischief

                That people have no alternative worth voting for reflects on the parties, not the people.

    • Colin A

      So… What exactly does the ECHR have to do with the EU then? The ECHR is an instrument of the Council of Europe. A totally separate organisation. Leaving the EU won’t affect the ECHR in any way since this country has signed that treaty independently of joining the EU.

  • HooksLaw

    The Human Rights Act simply incorporates the ECHR conventions into law (as do lots of other countries).
    Even without the HRA there is nothing to stop anyone appealing to the ECHR – just as they had been able to do since the ECHR was founded by the UK back in the 1940’s.

    The rules reflect the acts there is no need to trump them. Just sack the lefty judges.

    • Andy

      I think you will find that the Human Rights Act does a little more than merely incorporating the ECHR into UK Law.

      The ECHR was signed in November 1950, not ‘back in the 1940s’. It came into force in September 1953.

      I’m afraid that since the Convention was drawn up the courts Judges have extended the convention in a way that the original drafters would not understand and certainly never intended. And therein lies the problem. Votes for prisoners being a classic example of what I mean.

      • Colonel Mustard

        Like so many other things, hi-jacked by lefties to pursue ideological supremacy rather than consensual and apolitical human values. In the hands of these dreadful people it becomes a cudgel to beat their enemies and intimidate everyone else. Any attack against them becomes an attack on the original aspirations and is thus easily deflected. It is all about power for them. Winning it by any means, hanging onto it by any means and making sure no-one else has any.

      • HooksLaw

        The Uk started the convention in the ‘4O’s soon after the end of WW2
        It was drafted in 1949
        If the ECHR needs amending thats another matter
        It has of course nothing to do with the EU

        • Andy

          The UK took the lead in drafting the ECHR after the Second World War to try and establish some sort of order to prevent the continental Europeans killing each other with such vulgar regularity. Unfortunately it has drifted far and wide from the principles set out in the Convention, so the fact that ‘the ECHR needs amending’ is not ‘another matter’ but actually the nub of the matter.

          And I did not say the ECHR had anything to do with the EU.

  • LB

    Very simple.

    1. Get together a list of the cases where you want a different verdict.
    2. Get the judges into a room
    3. Give them a piece of paper and a pen.
    4. The judges draft the law that gets a different verdict.
    5. Parliament passes the law.

    Appeal? Well that depends on whether or not the judges are frauds, doesn’t it?