What was so impressive about Theresa May’s announcement yesterday was that it showed the Prime Minister and government following through. Instead of there just being a speech on immigration from the Prime Minister, it was immediately followed up by the Home Secretary telling Parliament she would end the failed UKBA, and then ask us to legislate quickly for a proper immigration system.
The government has a really good record on immigration, and we are already half way to meeting our target of cutting immigration from the hundreds to the tens of thousands, but we have not yet done a good enough job of getting that message across. I believe that yesterday showed a new and more ruthless focus in the Downing Street operation. With Lynton Crosby on the scene government action and communication may at last be joined up.
Will it continue? After yesterday’s two steps forward for the Home Office, it has been pushed back a step by today’s Qatada decision. The Court of Appeal ruling against the Home Secretary should not be a surprise. She chose to fight the case with one hand tied behind her back by deferring unnecessarily to Strasbourg. I attended the hearing on 11 March and wrote at the time that her QC seemed to throw in the towel after pursuing a pretty hopeless legal strategy. The conclusion of the Court of Appeal judgment sums up why that strategy was doomed to fail:
“In order to succeed in this appeal, the Secretary of State has to show that SIAC [the lower court] erred in law. It is not sufficient to persuade us that we would have reached a different conclusion on the facts and Mr Eadie rightly recognised the difficulty of such an exercise. The Secretary of State accepts that SIAC directed itself properly as to the general legal test to apply. Her case that SIAC nevertheless erred in law is based on a detailed examination of a careful and comprehensive judgment. As we have stated at paras 5 and 6 above, criticisms of this kind of a decision by a specialist tribunal are particularly difficult to sustain. For the reasons that we have given, we are satisfied that SIAC did not commit any legal errors. This appeal must therefore be dismissed.”
Along with Dominic Raab MP, I have argued throughout that the Home Secretary’s whole approach has been misconceived because, as the Court of Appeal puts it, “The Secretary of State accepts that SIAC directed itself properly as to the general legal test to apply. Her case [is] that SIAC nevertheless erred in law” or, as I have put it, the Home Secretary commenced the case with a craven surrender to Strasbourg.
The Home Secretary can still win this case if she clears out her legal team, changes that appraoch, and appeals to the Supreme Court on the basis that ultimately it is they, and not Strasbourg, who have the final word on interpreting the European Convention on Human Rights, given that it is now part of our domestic law through the Human Rights Act. Our High Court has already made clear in the Abu Hamza case, which the Home Secretary won, that Strasbourg’s Rule 39 does not bind our domestic courts. Our Supreme Court can similarly uphold our House of Lords decision on what constitutes a ‘flagrant denial of justice’ in preference to Strasbourg.
The Home Secretary just needs to ask the Supreme Court the right question, and she could yet get Qatada on a plane. If Lynton Crosby is still in town, and the Prime Minister really wants to follow through on the new approach we saw yesterday, then we should soon see in the Supreme Court grounds of appeal.