In this week’s Mail on Sunday, the Home Secretary, Theresa May, published an article strongly criticising judges for allowing some foreign criminals to remain in the UK on human rights grounds, contrary (as she sees it) to instructions that Parliament issued to judges about how such cases should be decided. In her article, the Theresa May says that because judges have (she thinks) ignored those instructions, they should now be enshrined in primary legislation – an Act of Parliament. This, she says, will give the judges no choice but to do as they are told: because Parliament is sovereign, argues May, it can make whatever laws it wishes, including laws that require judges to decide cases in a way that is incompatible with fundamental human rights.
In this post on the UK Human Rights Blog, I respond to the Home Secretary’s article. I argue that her position is symptomatic of a broader malaise in public discourse concerning human rights. First, by assuming that Parliament is free to enact such legislation she fails fully to acknowledge that the UK is bound in international law by human rights obligations, such as those found in the European Convention on Human Rights. And, second, the Home Secretary assumes that there is necessarily a tension between judicial enforcement of human rights and respect for democracy; in adopting this position, she implicitly assumes a particular, and arguably inadequate, view of the nature of democracy.
The post is (I hope) written in a way that will be accessible to non-lawyers as well as lawyers. But there is one point that perhaps requires explanation. Towards the end of the post, I refer to the “margin of appreciation”. This principle was developed by the European Court of Human Rights in the case of Handyside v UK. It recognises that it will sometimes be appropriate for the Court to give a degree of latitude to individual States when it comes to deciding whether it is acceptable to limit an individual’s right in order to achieve some conflicting public interest. (In Handyside, the balance that fell to be struck was between the individual’s right to freedom of expression and the State’s wish to restrict access to certain forms of pornography in the interests, as it saw it, of public morality.) However, the point I make in my post is that there are limits to this. Where appropriate, the European Court will attach a degree of respect to the State’s view about whether restricting a right is necessary in the public interest: but this does not mean that States have an entirely free hand. The basic point, then, is that the legislation envisaged by the Home Secretary might well (indeed, almost certainly would) fall outside the UK’s margin of appreciation, thereby making it unlawful under the European Convention on Human Rights.