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Tuesday, June 12, 2012

If Theresa May shows such lack of understanding of the law should she be the Home Secretary?

If Theresa May shows such lack of understanding of the law should she be the Home Secretary?

Article 8 – Right to respect for private and family life 

1. Everyone has the right to respect for his private and family life, his home and his correspondence. 

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The media has campaigned long and hard against Article 8 of the ECHR.

The Leveson inquiry is investigating the too cosy and close relationship between the media and politicians.

On Sunday the media, specifically Rupert Murdoch's The Sunday Times and the BBC's Andrew Marr Show reported upon Theresa May's oral statement to the House of Commons which she did not make until Monday afternoon.

Why did Theresa May report first to the media and only secondly to the HoC? It maybe recalled that Theresa May also went to the media first to announce her intention to strike a blow against Abu Qatada. This only blew up in her face when she erred with the ECtHR deadline for Abu Qatada to launch an appeal to the ECtHR.

Once again Theresa May has erred in relation to the ECHR.

"Ignorance of the law is no excuse". Therefore Theresa May has no justification for misleading Parliament with her oral statement. The misleading part of her statement states: "The convention allows the state to interfere in the exercise of article 8 rights when it is in the public interest to do so, and when the interference is proportionate to the public interest being pursued".

A reading of Article 8 above does not, I repeat does not, include the vague term "in the public interest". It would appear that Theresa May is attempting to hide behind the public. This is a deception. When an applicant engages an Article of the ECHR it is a case of the Individual v The State. The UK State is the Executive, Parliament and Judiciary. The public are not part of the State. The public need to be vigilant when one or more arms of the State seeks to hide behind the public, and announce in very clear terms the statement: "not in our name".

It could well be that Theresa May is not acting in the public interests at all, but is instead acting in the interests of the media.

"Article 8 is clearly a qualified right, but Parliament has never set out how it should be qualified in practice. So, for too long, the courts have been left to decide cases under article 8 without the view of Parliament, and to develop public policy through case law. It is time to fill the vacuum and put the law back on the side of the British public, so we are changing the immigration rules to establish that if someone is a serious criminal, and if they have not behaved according to the standards that we expect in this country, claiming a right to a family life will not get in the way of their deportation. If a foreign criminal has received a custodial sentence of 12 months or more, deportation will normally be proportionate. Even if a criminal has received a shorter sentence, deportation will still normally be proportionate if their offending has caused serious harm or if they are a persistent offender who shows particular disregard for the law. For the most serious foreign criminals—those sentenced to four or more years in prison—article 8 rights will prevent deportation only in the most exceptional of circumstances".

Theresa May's statement above misconstrues the European and international law and HRA position.

Article 8 is not an absolute right because the human right in (1) can be restricted by the qualifications in (2). Human rights law, including the ECHR, is generally on the side of all citizens within Member States. This includes foreigners within Member States and is not restricted to nationals within Member States, therefore Theresa May's reference to only the British public is an attempt to mislead the public, media and Parliament. It maybe that Theresa May is being both racist and xenophobic.

Those human rights under the ECHR which are not absolute start with the human right followed by the exceptions. What Theresa May is attempting to do is rewrite the HRA and ECHR and turn it upside down by putting the exceptions first and secondly, exceptionally, allowing the human right. This would be unlawful under the HRA and ECHR.

If Theresa May shows such lack of understanding of the law should she be the Home Secretary?


James Higham said...

I just said on another blog she should resign.

Anonymous said...

Hello, I am a student currently on tier 4 category and i still have more than 6month on my visa. I just finished my Advanced Diploma in Business Studies but am still awaiting my results and certificate. I want to switch to marriage and spouse category and my babe is British and we ve all necessary documents but am consigned about my English language requirement, I did Pearson Test 2years ago and it will expire on 20 Dec 2012 and am about to submit my application by 10 Dec which means t will ve expired before they even view my application. So I want to know if I can still submit it why it is valid or I should do another one?