Yesterday I suggested to the Home Secretary that she might ask the Supreme Court if it, or the European Court of Human Rights in Strasbourg, has the final word on interpreting the European Convention on Human Rights. She concluded her reply by saying:
“I fully understand the frustration felt by my hon. Friend and others who share his views, but our options involve operating within the law, and I believe that we should operate within the law or change the law. Dare I describe urging the Government to break the law as a rather reckless step?”
I am well used to puns on my name – if not to apparent jokes from the Home Secretary – and I probably have it easy compared to family who are doctors, particularly my father who went to medical school with a Dr Butcher, a Dr Carver, a Dr Coffin and a Dr De’Ath.
However, as a lawyer I have never urged the government, or anyone else, to break the law. What makes me angry is that we appear to be accepting, without even testing the matter in court, that it is Strasbourg, and not our Supreme Court, which is supreme in human rights matters.
This is despite the fact that Parliament has legislated (in the Human Rights Act) that our courts need only have regard to, or take account of, the Strasbourg court. We have never required our courts to follow Strasbourg rulings.However, instead of allowing our judiciary to interpret that law as passed by Parliament, the Home Secretary has repeatedly withheld this key constitutional matter from the courts, and simply submitted to Strasbourg.
The Home Secretary complains that Strasbourg has shifted the goalposts, but it is she who decided to accept the new test invented by Strasbourg. She has repeatedly stated in court documents and through her QCs that our courts should apply the new Strasbourg test, rather than the previous test under which the House of Lords ruled Qatada could be deported.
So, not only is Abu Qatada still here, but we risk this key constitutional question – does Strasbourg or our Supreme Court decide – being settled by default, and by the executive, in favour of Europe.
All I have urged is that the Government ask the UK judiciary if they will uphold the prior law as determined by Parliament, rather than judicial legislation from Strasbourg. How can that be “urging the government to break the law”?