Site Meter

Monday, February 18, 2013

Theresa May's Mail on Sunday article fisked

 Theresa May's Mail on Sunday article fisked

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.

I am almost blind now so if I am missing something here, let me know in the comments.

Unless there are very exceptional circumstances, foreigners who have committed serious crimes in this country, or who have attempted to cheat the immigration system, should be deported from Britain. 

Foreigners are human beings, and there are no exceptions to this hard and fast rule. This is expressly stated by the inclusion of "Everyone" in Article 8(1).

It is arguable that Theresa May is not showing respect. Moreover it is arguable that her racist and xenophobic policy is an unjustified intrference under Article 8(2),

First they came for the foreigners.,,

William Hague has publicly stated that human rights are at the forefront of FCO policy.

It appears as though Home and Foreign Office are giving mixed messages,,,

Theresa May continues writing her nonsense article: "Parliament wants that to happen, the public wants that to happen, and I want that to happen. But, too often, it is not happening. Time and time again  we are treated to the spectacle of people who have been found guilty of rape or serious assault being given the right to stay in this country".

I don't recall Parliament passing a statute overriding the HRA 1998,,,

Nor the public voting for a policy which attacks Johnny Foreigner.

Just because she wats it to happen is no reason to force it upon anyone else in this country including judges.

The reason why it is not happening dear is because what you want is unlawful!

Judges decide each case on its individual merits therefore are right to disregard populist posturing by the likes of Theresa May. Even foreign criminals have the human right to rely upon Article 8.

Theresa May continues her rabid rant: "It is not in the national interest that this situation continues. What is going on? The short answer is that some of our judges appear to have got it into their heads that Article Eight of the European Convention on Human Rights, the ‘right to family life’, is an absolute, unqualified right".

Of course it is in the national interests that judges decide like cases alike. It's called certainty, consistency and adheres to the legal principle of precedent.

Indeed what is going on when Chris Grayling is the Justice Secretary and May has no public power to interfere with his remit and the Judiciary. There is no evidence that it is the judges who are misunderstanding the law. This article is evidence that the non lawyer has misunderstood the law. Is she ignoring the inhouse lawyers advice?

The ignoramus continues: "This means that if a foreign criminal can show that he has a family in this country, they take the view he has a right to remain here, regardless of the gravity of the offences"

The judges reasonably ignore irrelevant considerations such as criminal records. Article 8 makes no provision to discriminate on character.

Ignorance of the law is no excuse Theresa May: "That interpretation is wrong. The Convention is quite plain: the right to family life is not an absolute right, like the right not to be tortured. It is a qualified right, and it can be restricted when that is required, for example, to protect public safety, or for the prevention of crime".

It is for the judges and courts to interpret the law and not the Home Secretary. They are aware of the qualified right. And better placed to decide when a public authority is trying to overstep the mark.

May is the problem: "I thought that possibly the problem for the judges was that our Parliament had not explicitly stated how the right to family life could be restricted".

Parliament has passed no law restrcting the ECHR and Article 8 and the HRA.

"So in June last year I ensured that the House of Commons was able to debate my amendments to the immigration rules".

So? HoC is not Parliament. And the IR take second place to the HRA and ECHR.

Regardless of the HRA and ECHR May tries to demand she get ger own way: "Those amendments stated that in the usual case, any foreign national who was convicted of a serious crime should be deported, regardless of whether or not the criminal had a family in the UK"

She may have scant regard for the law and the human rights of others, thankfully these judges have the courage to stand up to her bullying tactics.

Tyranny by the majority in the HoC May rambles: "After a vigorous debate, the Commons adopted the changes unanimously. There was no division because there was no one in the Commons who opposed them".

Erm? May is arging one thing with the IR, and seeking changes in the ECHR and HRA which is a separate matter. The woman is obviously too confused to stay in post.

Do as I say May:  "I made it clear that I would introduce primary legislation should the Commons’ acceptance of my amendments not be sufficient to persuade judges to change the way they interpreted Article Eight. But I hoped that the outcome of the debate would be enough"

The HoC cannot tell judges how to interpret the law. It's called separation of powers to provide a check and balance against abuse by the Executive.

Parlament is both Houses and not simply HoC Theresa May: "Unfortunately, some judges evidently do not regard a debate in Parliament on new immigration rules, followed by the unanimous adoption of those rules,  as evidence that Parliament actually wants to see those new rules implemented".

Guidance and rules are not statute law therefore can and in this case should be ignored.

Up yours May: "As a justification for ignoring the new rules, one immigration judge recently stated that ‘the procedure adopted in relation to the introduction of the new rules provided a weak form of Parliamentary scrutiny. Parliament has not altered the legal duty of the judge determining appeals to decide on proportionality for him or herself’".

Quite right, in a nutshell the judge has explained the law for the nutcase in the HO..

I thought but May is unthinking: "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 this is a ‘weak form of parliamentary scrutiny’".

The judge is asserting the independence of the Judiciary

May fails to fit a square peg in a round hole: "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 judges interpret what that law is and make sure the executive complies with it"
Rules made by May are not the law and it matters not one iota that the HoC approves of the rule amendments. May is getting her constitution from her rear end as being the British constitution! 

"For almost all of the long history of disputes between judges and Parliament, it has been  common ground that Parliament is the ultimate law-maker, and that it is not for the judges to be legislators. It is essential to democracy that the elected representatives of the people make the laws that govern this country – and not the judges"
The IR is not the law passed by both Houses of Parliament but only subordinate legislation made by the Home Secretary. The IR do not govern the country but only a department of the government. Such dishonesty in her job is not acceptable in a democracy.

May gets the wrong end of the stick: "Yet some judges seem to believe that they can ignore Parliament’s wishes if they think that the procedures for parliamentary scrutiny have been ‘weak’. That appears actually to mean that they can ignore Parliament when they think it came to the wrong conclusion".

It' her rules being challenged by the judges, as they appear to clash with statute law.

No way May: "Most judges, especially in our higher courts, do not take this attitude. One High Court judge, for example, has explicitly recognised that the new rules are ‘unquestionably valid laws, democratically enacted under a procedure which is necessary for the efficient practical functioning of Parliament’.
The majority of judges share his view. BUT a minority think that it is their role  to determine, for instance, whether or not foreigners who commit serious crimes shall be deported. They are able to frustrate Government policy and prevent the deportation of criminals"
Rule are rules and lawd are laws. No competent judge would declare rules to be valid laws made by Parliament. As already said foreigners human right to stay is based upon family life and not whether he is a criminal.
May Day May Day Mat Day: "It is now clear that only explicit parliamentary legislation will convince them that the law is what Parliament says it is, not what they think it should be"
They already know that the law is what Parliament says it is in primary legislation. And not what she thinks it ought to be.

May;s high-wire act heading for a fall: "I am therefore determined to introduce primary legislation that will specify that foreign nationals who commit serious crimes shall, except in extraordinary circumstances, be deported. Once this primary legislation has been enacted, it is surely inconceivable that judges in this country 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."

She can draft a law but Parliament will reject it. It is the foreibner;s human right in the balance against an abusive public authority.

it's depressing wading through May's bowel movements: "It is depressing that the steps we have already taken should have been insufficient to produce that result. The inevitable delays inherent in passing primary legislation will mean that there will be many more foreign criminals who successfully avoid deportation on the basis that they have a family here.
There will also be more  victims of violent crimes committed by foreigners in this country – foreigners who  should have been, and could have been, deported"

Scaremongering nonsense. I wouls be more scared if judges ignored the law and allowed deportations in pite of the HRA and ECHR.

Of course the issue is about respect for human rights: "This is not a dispute about respect for human rights, which I certainly agree is an essential part of any decent legal system. It is about how to balance rights against each other: in particular, the individual’s right to family life, the right of the individual to be free from violent crime, and the right of society to protect itself against foreign criminals".

It is not about balancing rights against each other. Just the foreigners human right not to be abused by a public authority such as May.

It's distressing that May seeks the scrapping of the HRA: "One of the most distressing results of judges taking it on themselves to determine how that balance should be struck, in defiance of Parliament’s wishes, has been the damage done to the notion of human rights: in the popular imagination, ‘human rights’ are wrongly, but perhaps understandably, becoming  synonymous with legal dodges that allow criminals to escape proper punishment and to continue to prey on the public"
George Bush used human rights as a justification for invading Iraq. That damaged the notion of human rights. The foreigners have been punished by the courts and now the Home Office seeks to add an unlaful extra destroying family life.
"I am a great admirer of most of the judges in Britain" May I add if they agree with me that is...
May I pull the other leg?: "I absolutely accept that the power of Ministers should be reviewed and restrained by independent judges who are appointed, not elected, and who are not accountable to the electorate for their decisions".
May's whole article is about her refusal to accept judges have a job of upholding the law.
May attempts to subvert the law by Executive decree: "But the law in this country is made by the elected representatives of the people in Parliament. And our democracy is subverted when judges decide to take on that role for themselves".
The law is made by both Houses of Parliament and not by the Home Secretary. She is not The Law-maker General.

No comments: