The Law is the true embodiment
Of everything that’s excellent.
It has no kind of fault or flaw,
And I, my Lords, embody the Law.
These days, if you want to throw a spanner in the works of government you don’t necessarily have to cajole a congeries of Tory rebels, Labour lobby fodder and their Lib Dem and nationalist hangers-on to do their worst. Just make a call to a sympathetic law firm. We saw it with Gina Miller’s Brexit challenge; we saw it with the Government’s plans for clean air in London shortly before the election; and we may soon see a similar upset in connection with the licensing of arms sales to Saudi Arabia. There is even an attempt mooted to use the courts to block DUP support for the Tories, on the basis that amounts to a breach of the Good Friday Agreement.
There’s no space here to go into the question of where we draw the boundary between judicial review by the courts, traditionally aimed at ensuring administrators do not exceed the powers entrusted to them, and decisions by politicians, whose object is to give us the kind of government we voted for. That’s a difficult one, though the above examples may suggest to TCW readers that we haven’t got the right answer to it.
But what is seriously noxious is when the lawyers do not simply ride into town to keep government in its place but bring with them the human rights posse, out to impose its own expansive, euro-style, left-liberal ideas of rights on our government at the expense of deliberate government policies we ourselves voted for. Two cases in the courts in the last couple of weeks show that this body needs running out of town, preferably pronto.
In 2014 two convicted drug dealers, one from Kenya and one from Jamaica, were served with notices of deportation. As usual, they said that this wouldn’t do because it would interfere with their human right to private and family life. This was a just plausible ground of complaint (after all one, aged 32, had already spawned eight children by three different women), though in practice one that serious felons hardly ever succeed in making good. The Home Secretary told these particular gentlemen that they were welcome to appeal on that ground, but directed (as the law said she could) that they had to go now and appeal later.
On 14 June the Supreme Court indignantly said No: the “deport now, appeal later” power could never lawfully be used in any case where there was a remotely plausible human rights claim. Why? Because an appeal from abroad would be more difficult and expensive, and would deprive the person concerned of the right to give oral evidence if his funds didn’t run to video links, and might prejudice him by making it easier for the Home Secretary to show that he didn’t have a close connection with this country after all.
So, stand back and take a deep breath. The right to family life now means that a convicted foreign criminal who claims his human rights just might be violated by deportation has the right to stay here, presumably at public expense, until an appeal which has virtually no chance of succeeding has been completed – and that this is a right so important, so beyond argument, that it must override the decision of a democratically-elected government.
Enough of that. On Thursday last week it was the turn of the DWP to be hit by the human rights law juggernaut and told that changes to the social security regime, fully debated in Parliament and the subject of extensive political discussion, were not acceptable, at least as regards mothers of very young children. At stake was the housing benefit cap, essentially limiting welfare benefits per household to £20,000 pa outside, and £23,000 pa inside, London.
How could this infringe human rights? Read on, and you will see something of the convoluted reasoning of human rights enthusiasts. The answer is the right to the peaceful enjoyment of possessions (ECHR Protocol 1, for those interested), coupled with the rule (Art.14) that human rights must be given without discrimination, and the fact that the rule disproportionately impacted mothers with children under two.
True, there is no human right to welfare: possessions are what you have, not what you might get courtesy of the taxpayer. But if the State gives welfare to anyone, then because it’s a little like a possession (in euro-human-rights-speak, it is within its “ambit”) the European Court of Human Rights has said for ten years or more that there’s a duty not to discriminate in providing it without good reason. Of course, there might have been a good reason to discount the effect on mothers of the very young: but the court seized on the fact that the Secretary of State had never turned his mind to this particular disadvantaged group, and hey presto! That escape was blocked off and the regulations were quashed.
Of course, the unenlightened might say that pointing out how particular groups might be unfairly disadvantaged by the social security rules, or arguing over deportees’ right to appeal, was just what ought to be done in the political sphere rather than later picked over later by lawyers. But then they don’t understand the brave new world of social security and they clearly need help and re-education. I don’t think there’s a human right to that yet, but I’m sure there’s a professor of human rights law somewhere working on it.
(Image: Sarah Rose)