Mark Reckless MP: Crunch Time for Theresa May

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 8.

Abu Qatada

On Monday I attended the latest instalment of the Abu Qatada legal proceedings, which have been going on for ten years yet are still running.

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 properly?”

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 properly.

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 that:

‘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 8 Vote

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 Article 8.

 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.