Wednesday, 8 June 2011

MP thinks that Judges legislate...

I was listening last night to the Commons debate on the second reading of the Terrorism Prevention and Investigative Measures Bill which is set to replace Control Orders with TPIMS - which are in fact more or less just like Control Orders but with a different name.

During the debate the MP named below said the following which I quote from Hansard:
8.37 pm
Mr Dominic Raab (Esher and Walton) (Con)

Control orders are not just of dwindling relevance; they constitute a distraction from robust law enforcement and are actually a negative. That is why I welcome the Home Secretary's renewed focus on the Prevent strategy. I would welcome further still measures to strengthen our deportation capacity, which has been undermined by judicial legislation resulting from article 8 of the European convention on human rights, via the Human Rights Act 1998. The massively inflated rights to family life now allow the majority of deportation orders to be frustrated. That has nothing to do with article 3 torture grounds, which I would stand up for

Have relations between Parliament and the Judges become so poisoned that this chap thinks that there really is such a thing as 'judicial legislation' in the UK which Judges make in order to actively undermine the Government's implementation of a deportation regime set out in an Act of Parliament.  At least he acknowledges that this 'judicial legislation'  is 'via' the HRA 1998.

Mr Raab - what you actually meant is that Parliament in 1998 compelled judges to apply article 8 of the European Court of Human Rights to the law of England and Wales, including that bit of the law which sets out when we can deport terrorists.  

The application of article 8 is not judicial legislation - it is merely what judges do - are compelled to do - applying the law as made by Parliament to the facts of a case.  

I am also unaware of any case where a judge has refused to deport a terrorist on article 8 grounds - this is mainly because article 8 rights to a family life can be infringed where the infringement (the deportation) is proportionate to the legitimate aim of the security of the UK.  So even if the Judges have been legislating - they have 'passed' no law which means that terrorists can hide behind article 8.   

True it is that terrorists can hide behind article 3 - we cannot deport them back to countries which will torture them, but then article 3 is an absolute right - I am glad that Mr Raab finds it in himself to stand up for terrorists not being tortured......

But who is going to stand up for the judges and explain to the average MP, that they, MPs, make law in a Sovereign Parliament - and Judges just apply it - if Judges interpret Acts of Parliament or introduce common law rules which MPs don't like - they (with the House of Lords) can pass an Act which better expresses the democratic will (see the Compensation Act and its overturning of a Supreme Court judgment etc.).....Mr Raab, please read a constitutional textbook before you next malign HM Judges....

1 comment:

  1. I think Mr Raab - law graduate of Oxford + Masters at Cambridge - knows full well that judges do not legislate. To say that they do is, of course, a misleading bit of politics.