Mark Reckless is the Member of Parliament for Rochester and Strood and serves on the Home Affairs Select Committee. Follow Mark on Twitter.
"Are we conceding
that our own Supreme Court is not supreme? I believe we are."
So said Theresa May in her keynote speech to Saturday’s
ConservativeHome speech. To which the answer should be:
“Well Home Secretary,
don’t concede it then.”
This week gave two perfect opportunities. The first was
Monday’s latest Abu Qatada appeal. The second is today’s Dominic Raab vote on Article
On Monday I attended the latest instalment of the Abu Qatada
legal proceedings, which have been going on for ten years yet are still
Unfortunately I saw another craven Home Office surrender to
Strasbourg. This was encapsulated by the Home Secretary’s QC summarising the
case as being “Did SIAC [the Special
Immigration Appeals Tribunal] do the right thing, i.e. apply Strasbourg
It did not seem a good sign for the Home Office when even
the Master of the Rolls appeared to be confused by the case they were putting
forward, seeking to show a series of six Strasbourg-inspired principles being
met. Cue much speculation as to the meaning of recent developments in the
Jordanian justice system and reference to disputes among experts concerning
Jordan’s internal affairs.
Just before lunch Theresa May’s QC threw in the towel saying
that, if the Court of Appeal could not overturn the decision, then perhaps it
could remit the case to SIAC to start all over again. He did though receive a
positive response to his submissions when he noted a tendency for Strasbourg
just to list facts and “assert a single mantra … without the degree of
supporting analysis you would expect here my Lords”, with the Master of the
Rolls replying “Or indeed any”.
We therefore have the three most senior judges in the
country, Lord Chief Justice, President of the Supreme Court, and the Master of
the Rolls, all questioning the jurisprudence of the European Court of Human
Rights (ECtHR) in Strasbourg. They assert that our Supreme Court, and not the
ECtHRECtECtHEStrasbourg, must be
considered to have the last word on interpreting the European Convention on
Human Rights (ECHR). Yet the Home Secretary pleads a case to them on the basis
that they should consider only whether a lower court has applied Strasbourg
Home Secretary, if you lose Monday’s case and go to the
Supreme Court, perhaps it is time for your to instruct a QC who will ask if
they agree with your statement to me on 3 December 2012 that:
“A decision was taken [by the Home Office] to adopt the
test laid down in January by the Strasbourg court, essentially because we
considered the domestic courts were bound to follow it”,
or if they prefer that the Lord Chief Justice’s statement
‘As a matter of statute, the decisions of [the Strasbourg
Court] do not bind our courts … statute ensures that the final word does not
rest with Strasbourg, but with our Supreme Court.’
Dominic Raab MP Article
It is also very much to be desired that the Home Secretary succeeds
in winning a battle still raging in Whitehall on whether to support Dominic
Raab’s “Exceptions to automatic
deportation” new clause. We should debate this at the Report stage of the
Crime and Courts Bill later today. It reads:
‘In section 33(2)(a)
of the UK Borders Act 2007 for “Convention rights”, substitute “rights under
Articles 2 or 3 of the Convention’.
Dominic would achieve in 7 words of primary legislation what
the immigration courts have frustrated the Home Secretary from achieving
through far lengthier revisions to the Immigration Rules.
Even though these were approved by Parliament, those Rules
have been subjugated by the courts to the Human Rights Act, an approach
recently confirmed by the case MF (Nigeria). Whilst that may initially have
frustrated the Home Secretary, the ruling actually shows her that it is not
Strasbourg, but the Supreme Court, that is supreme within ultimate confines
determined by Parliament.
Indeed, the MF (Nigeria) judgment shows that the approach
adopted by her Qatada lawyers is wholly misplaced. The judges in MF (Nigeria)
patiently explain how both the Court of Appeal and House of Lords have decided
not to follow Strasbourg, and have instead forbidden the lower courts from
applying the Strasbourg tests which seek strictly to limit the application of
Our domestic courts
have instead developed their own extraordinarily exorbitant definition of the
Article 8 right to a family life, expanding it to include short-term
girlfriends, children never seen, or even abused, by a defendant, and the Home
Secretary’s famed cat.
Just as our Supreme Court is free to assert itself against
Strasbourg, if only the Home Secretary would put that case before it, so
Parliament can limit the application of Article 8 rights, as is expressly
allowed by the ECHR.
All we need to do to rein in our domestic courts’ exorbitant
rulings in this area is pass primary legislation to remove Article 8 as a
ground on which courts can prevent deportation of foreign prisoners sentenced
to a year or more in prison.
Dominic Raab invites Parliament to do that in just seven
words this afternoon. The Government should back him, and the Home Secretary
would be able to show that she is delivering on the agenda she set out so
impressively at Saturday’s ConservativeHome conference.