Theresa May says some judges are failing to follow last year's guidance on Article 8 and the deportation of foreign criminals
Home Secretary Theresa May has launched an "unprecedented" public attack on judges, accusing them of flouting a decision by MPs to stop foreign criminals using the European Convention on Human Rights (ECHR) to avoid deportation, the Daily Mail reported yesterday.
In an article in the Mail on Sunday, May wrote that time and time again, judges were still giving people who have been found guilty of rape or serious assault the right to stay in the UK.
As BBC News reported, the Home Secretary last year issued new guidance to judges designed to put an end to circumstances in which the right to a family life as set out in Article 8 of the ECHR was used to justify granting foreign criminals the right to remain in the UK, rather than being deported.
In the Mail on Sunday article, May accused a minority of judges of not following the new guidance and actively believing they can ignore Parliament's wishes.
The Home Secretary wrote that democracy is subverted when judges decide to take on the role of making laws for themselves, as that is prerogative of elected representatives of the people in Parliament. She said that this did not apply to the majority of judges, especially in the higher courts.
As a result of the failures of some judges to follow guidance, May says that she is now determined to introduce primary legislation that will specify that foreign nationals who commit serious crimes shall, except in extraordinary circumstances, be deported.
"Once primary legislation has been enacted, it is surely inconceivable that judges 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 wrote.
BBC News reported that Labour peer Baroness Kennedy said in response to May's comments: "It's absolutely imperative that judges are not under the thumb of home secretaries, and it can be frustrating for home secretaries of course, but it is not good to see this kind of vocal attack on the judges, and I am sad that she has done this."
Writing on FreeMovement, barrister Colin Yeo said May's comments were "clearly nonsense in a legal sense," and were more of a case of "a very effective piece of political posturing that cements her position as a Conservative Party leadership contender."
Adam Wagner wrote on the UK Human Rights Blog: "I have no doubt that the Home Secretary and her advisors understand full well how the system works and much of this is posturing for a certain audience. It is certainly not meant for lawyers. But as I have said before, it is bad when ministers seek to corrode the independence of judges through these kinds of attacks. As Lord Woolf, former Lord Chief Justice has said, it undermines the rule of law."