BY THE PRESIDENT MARY KAYE
In the Post edition dated 31 January 2013, I spoke about the need to balance the rights of the individual against the state. I was not then aware that Theresa May, the Home Secretary, was going to bring this into the national media spotlight. No doubt many reading this column will have empathy and support for Mrs May’s view that foreign criminals should not be able to use the European Convention on Human Rights (ECHR) as a shield to avoid being thrown out of our country.
Mrs May was very forceful in her view that the judiciary should take note and be bound by what is said in Parliament. Referring to an immigration judge who ignored the unanimous adoption of new immigration rules in the House of Commons, she said: “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 that 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 the judges interpret what the law is and make sure that the executive complies with it”
Mrs May, in effect, has answered her own question. If Parliament wishes a law to be interpreted, then they need to legislate for it. It is not sufficient simply to debate an issue in Parliament and then expect judges to interpret the outcome of a debate as if it were primary legislation – a formal act of Parliament passed by both Houses and given Royal Assent.
Mrs May refers to Article 8 of the ECHR. By our law English Courts must apply convention rights unless domestic legislation makes it impossible to do so. No matter how much Parliament may say, debate alone doesn’t change the law. The job of our judiciary is to uphold the rule of law. The choice Mrs May has is that either she must appeal or she must lay a Bill before Parliament.
It would be an uncertain and sad day if what was simply debated in Parliament automatically brought about changes in our law. If judges are to be bound and swayed by political debate this would undermine the legal system as it has existed in this country for hundreds of years and certainly long before the ECHR.
Painstaking as it may be, Mrs May could perhaps use her energies more effectively by introducing primary legislation, which would then enable judges to interpret laws, as opposed to debate.None of us wish to see this county giving refuge to criminals and those that endanger the peace and freedom of our citizens, but to give supremacy to words said in Parliament without the enactment of law would be a slippery slope indeed.