Tuesday, 12 March 2013
Beneath the Bluster
Writing in The Law Society Gazette 11th March, Roger Smith (Visiting Professor London South Bank University and former director of human rights group Justice) begins by saying 'Theresa May is no idol for human rights activists: home secretaries rarely are.' Smith goes on to 'unpick' the content of Theresa May's recent article in the Mail on Sunday - (Law and Lawyers 20th February). Smith's elegant unpicking makes the following key points:
1. May makes some serious constitutional points in that (a) she accepts judicial review by independent judges; (b) human rights are an essential part of any decent legal system; (c) Article 8 of the European Convention is a qualified right which may be restricted on, for example, public safety grounds.
2. May made clear referenecs to the Izuazu case - Izuazu  UKUT 45 (IAC) The judges
in Izuazu [included Lord Ballantyne and Sir Nicholas Blake - 'not a good bench before which to appear without all the papers, as the senior Home Office presenting officer did.' May can splutter all she likes but her civil servants manifestly did not take the matter as seriously as she now does.
3. Immigration rules are not subordinate legislation but detailed statements by a Minister of the Crown (Odelola v SSHD  UKHL 25). This is the heart of May's mistake. As May argues, Parliament is Supreme BUT, as May neglected to note, Parliament consists of BOTH Houses and the Crown.
4. May needs legislation. In this event, the Human Rights Act is clear. Every domestic judge will follow her statute even if they declare it incompatible with the European Convention. May can then argue her point at Strasbourg: although it would be good idea for her advocates to be better prepared.