W
hat do you do when you’re unhappy with which is that Parliament makes the law, and judgthe way your court case was decided? You es interpret the law”.
appeal, and if you’re still unhappy, you appeal
I could not agree more with Home Secreagain, until you have reached the end of the jus- tary’s classic account of our constitution. Parliatice system and have to accept the final decision ment does make the law but in doing so it has
of the senior judges on the point of law. Stating bound the courts by the Human Rights Act,
the obvious? Well, in light of recent criticism and which requires judges to interpret all legislation
‘guidance’ for the judiciary, it seems that the polit- line with ECHR provisions, or to issue a ‘declaraical circles have somewhat different ideas.
tion of incompatibility’ should they find it imposTheresa May has made it very clear where sible to do so. Whether Mrs May likes it or not,
she stands on immigration. It’s not uncommon balancing rights against each other is precisely
for the Home Secretary to make statements in- what we have judges for. She cannot possibly exforming the British public that more than one- pect their Lordships to ignore the precedents set
third of all housing demand is caused by immi- down by the Supreme Court and rule in line with
gration, and that without it house prices could be her wishes on the strength of a single Parliamen10% lower over a 20-year period. She’s also be- tary debate. Indeed, the use of Hansard (a record
hind the recent change in the Life in the UK Test, of Parliamentary proceedings) has only been perwhich I had the pleasure of sitting last April (and mitted for judicial use since 1992 and only when
marginally passed first time). The amendment interpreting ambiguous legislation. It should nevwas supposed to bring in more content relating er be regarded as a source of positive law.
to the history and achievements of our nation,
Even if Theresa May does manage to rush
and less with the practicalities and bureaucracy. through relevant primary legislation, I would not
The effect is a test which no born-and-bred Brit- be surprised if some judges were still reluctant
on will pass without considerable time spent over to follow suit, feeling the weight of the HRA
the official study guide.
upon them. The response of
‘The response of
Without wishing to critithe legal circles to the row is
cise the Home Secretary’s imthe legal circles is unanimous – another Home
migration policy, I am greatly
Secretary is using the judges as
saddened by her recent outrage unanimous - another scapegoats for a spot of ‘popregarding judicial interpretaulist play’. Certainly, Baroness
Home Secretary
tion of deportation laws. In
human rights lawusing the judges as Kennedy,a aLabour peer, states
her infamous article published
yer and
by The Mail on Sunday, Mrs scapegoats for a bit of that she regards the whole
May expressed her discontent
thing as ‘politics trying to inpopulist play’
with how ‘some of our judges
terfere with judicial rule’ and
appear to have got it into their heads that Article that ‘Home Secretaries always do this kind of
Eight of the European Convention of Human thing’.
Rights, the ‘right to family life’, is an absolute,
She also stated that picking fights with judgunqualified right.’ She accused some judges of es is very bad for the rule of law, stressing that
defying Parliament’s guidance on balancing Art. 8 judges need a degree of discretion in order to fulof the European Convention of Human Rights, ly exercise their independent judgement, which
right to family life, enshrined by the Human remains – in my opinion – the main concern
Rights Act 1998, with the current law on depor- in this affair. Politicians need to get it into their
tation of foreign criminals, allowing 185 appeals heads that judiciary is not a machine for policy
on the basis of the defendant having family in the implementation. It’s their job to question the vaUK (out of 409 total allowed appeals).
lidity of political actions, which doesn’t amount
It is unclear what exactly this ‘guidance’ she to making law, but rather to making sure it’s legal.
is referring to is. From her article, we can gather Seeing as we don’t have a written constitution, the
that it is a debate in Parliament which saw the courts are the only body that can protect us from
House unanimously supporting her stance that a despotic government. This isn’t Dicey’s day.
“any foreign national who was convicted of a Tampering with the constitution to score political
serious crime should be deported, regardless of points is very dangerous.
whether or not the criminal had a family in the
UK”. Mrs May further states that she expected Jan is a second-year LLB Law student, the President
“the outcome of the debate to be enough”, and of the Freedom Society 2013/14 and the Third Year
makes it clear she regards defiance of it as incom- Representative for the UBLC 2013/14. He writes
patible with “the central idea of our constitution, about the things he reads, for others to write about.
DICTA
2013 | 61