Melanie Phillips

18 February 2013

The end of the UK foreign criminals fiasco? Don't hold your breath

Published in: Daily Mail

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Another week, another scene-change in the long-running farce of Britain’s catastrophic entanglement with human rights law.

The Government is to introduce new legislation to try to end the outrage whereby foreign criminals avoid deportation by successfully arguing in court that they are entitled to a right to family life, as enshrined in the European Convention on Human Rights.

Yesterday, Home Secretary Theresa May chose to announce this new legislation with a ferocious attack on the judiciary for allowing such people to remain in Britain.

Accusing the judges of undermining democracy, no less, she tore into them for choosing capriciously to ignore the will of Parliament simply because they thought it had reached the wrong conclusion.

This was because, she raged, they had ignored a measure passed last year by Parliament to stop foreign criminals and immigration cheats using the ‘right to family life’ clause in the European Convention to avoid being thrown out of the UK.

What she was referring to was a set of rules she had introduced into Parliament, which stated any foreign national who was convicted of a serious crime should normally be deported regardless of whether he had a family here.

Because some judges were nevertheless still giving some foreign criminals the right to remain on these ‘family life’ grounds, Mrs May claimed they were paying no attention to the wishes of Parliament.

Moreover, she charged, they were actually usurping Parliament’s role to make the laws that the judges had a duty merely to implement.

I’m sorry to say it appears as if Mrs May was being disingenuous and self-serving.

The truth is that she made a bad mistake last year over this very issue. For the rules she introduced and which Parliament duly passed, seeking to force the courts to throw out foreign criminals, constituted merely what is called ‘secondary legislation’, which does not have the legal force of an actual Act of Parliament.

As such, these rules could be trumped by human rights law (such as the right to family life), which the courts can rule allows such people to remain in Britain.

Contrary to Mrs May’s assertions, the judges did, indeed, take account of these rules. The problem was that the rules were too feeble in law to produce the result Mrs May wanted.

That wasn’t the judges’ fault. The person responsible for that unsatisfactory state of affairs was none other than Mrs May herself.

So in that context, her outburst yesterday appears to have been calculated to obscure the embarrassing fact that she is introducing legislation in a belated attempt to correct her own mistake.

In other words, she is flinging insults and wholly unfair accusations at the judges in an attempt to whip up populist fury at these easy Aunt Sallies in order to deflect attention from the deportation policy shambles over which she has presided.

How disappointing.

Quite why she initially chose to introduce inadequate rules rather than an Act of Parliament to address this most vexed and politically sensitive issue isn’t clear.

From her accusations against the judges, it would appear she really doesn’t have a clue about the constitutional difference in value between primary and secondary legislation.

If that is, indeed, the case, the Home Secretary has been led woefully astray by her departmental officials, who have displayed a staggering level of ignorance and incompetence (which would hardly be a first).

The question now, however, is whether her belated Act of Parliament will finally solve this long-standing problem.

It seems that Mrs May intends such an Act to state foreign nationals who commit serious crimes must be deported, other than in extraordinary circumstances.

As a result, she says, it is ‘surely inconceivable’ that the judges ‘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’.

Oh dear, oh dear. No, Mrs May, it is not ‘surely inconceivable’ at all. Given the fact that Britain so inadvisedly signed up to human rights law, balancing these two considerations is precisely what the judges are enjoined to do.

What she hopes is that, by stating all such foreign criminals must be deported other than in exceptional circumstances, her new Act will tip that balance so that throwing them out will inevitably outweigh the argument about family life.

Well, maybe it will. Certainly, it is earnestly to be hoped that Mrs May will succeed in ending the interminable scandal of undeportable foreign miscreants. And well done for trying.

But given the tortuous history of attempts to rein in the excesses of human rights law — all of which have failed — it has to be said that the signs are not altogether encouraging.

The main problem is that the phrase ‘extraordinary circumstances’ is wide open to interpretation.

Given the almost religious veneration of human rights law by the judiciary, not to mention their resistance to having their discretion to decide individual cases dictated to by politicians, it is not hard to imagine them defining ‘extraordinary circumstances’ in the most unhelpful way possible.

For example, they might rule an illegal immigrant’s children receiving life-saving treatment in a British hospital constituted such an exception.

Moreover, even Mrs May’s new law will not stop appeals against deportation going to the Supreme Court, possibly resulting in the Act being declared incompatible with the Human Rights Convention.

The Home Secretary appears to think that, given the way her proposed Act will tip the balance in favour of deportation, such appeals will come too late because the said foreign criminal will already have been thrown out.

But that blithely ignores the fact that — as we have seen in the past — human rights lawyers are likely to protest that deportation without recourse to appeal contravenes such foreigners’ human rights.

And the courts are all too likely to agree and refuse any deportation until the full appeal procedure has been exhausted.

True, it would be wonderful if Mrs May’s new law will at last stop the rot. But how likely is this?

Home Secretary after Home Secretary has grappled with the problem of apparently undeportable foreign criminals. They have all failed — because they are not prepared to tackle the root cause of the problem, which is the paralysing impact of human rights law itself.

Venting the Home Secretarial spleen on the judiciary diverts attention from the real culprits in this saga.

Yes, judges have made a kind of religion out of human rights law. But it was the politicians who signed up Britain to the European Human Rights Convention.

Unlike in other countries, our politicians did so without derogations from specific measures. As a result, uniquely among its signatories, Britain is unable to discharge the first duty of a state, which is to protect the security of its citizens against illegality and criminality by foreign nationals.

The truth is that it is human rights law that has undermined democracy by giving judges the power to arbitrate between competing rights and thus make decisions that properly belong in the political arena.

It was politicians who gave the judges this power. And it is only politicians who can finally solve this problem by leaving the Convention altogether.

But the tragedy is that the Government is not prepared to bite this particular bullet. So Theresa May tinkers with a detail and hopes that the noise she makes by hurling abuse at the judges will conceal the inadequacy of her actions.

Maybe she will succeed. But it’s more likely that this long-running farce has many more curtain calls left.

About Melanie

Melanie Phillips is a British journalist and author. She is best known for her controversial column about political and social issues which currently appears in the Daily Mail. Awarded the Orwell Prize for journalism in 1996, she is the author of All Must Have Prizes, an acclaimed study of Britain's educational and moral crisis, which provoked the fury of educationists and the delight and relief of parents.

Read full biography


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Melanie Phillips
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