Tory party conference: May Day, May Day, May day.

Tory party conference: May Day, May Day, May day.

Nicholas Watt, Chief political correspondent
guardian.co.uk, Monday 3 October 2011 20.14 BST,

Writes:

Theresa May plans clampdown on criminals who resist deportation

Home secretary to announce move to limit power of Human Rights Act at Conservative conference

The Guardian has employed a chief political correspondent to write a story which has both political and legal content in it.

The gist of the story is that Teresa May intends to make secondary legislation which she hopes will persuade judges that the rules should override primary legislation.

"May's proposal is designed to signal to the courts that they can override human rights if foreign criminals are guilty of serious breaches of the new immigration rules".

Imagine that I am a judge, a member of the so-called independent Judiciary, and a barrister representing the Home Office starts signalling to me that I should overturn the hierarchy of powers just to appease Teresa May and the Tory party and their supporters. My response would be to signal back as follows:

Fuck You, Sokol Beqiri, 2001

What we are talking about here is the ultra vires doctrine.

According to Foulkes:

"The administration exercises its statutory functions within a hierarchy of powers. At the top is the Act of Parliament which cannot be ultra vires. Regulations, orders or decisions of whatever name or form must be within the powers given by the Act and not repugnant to it. Any further act authorised or required to be taken by such regulations etc must likewise be within the regulations and within the Act and not repugnant to either. For example, section 47 of the Prison Act 1952 empowers the Secretay of State to make Rules for the discipline and control of prisoners. Under the authority of the Rules the Secretary of State has made standing orders. The Rules must be intra vires the Act; the standing orders must be intra vires the Rules and the Act. The Rules cannot confer any greater power than the Act; nor the standing orders any greater power than the Rules".

Basically, Teresa May is attempting to claim that the rules she is making, secondary legislation, have greater power than the Act, which is primary legislation.

Once again we have a Home Secretary who is claiming to be above the law.