Government v Judiciary on Article 8

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Media captionHome Secretary Theresa May on restoring 'sanity to our immigration system'

For a politician who wants Britain to abandon its obligations under the European Convention on Human Rights, Theresa May devoted a surprising chunk of her conference speech today to quoting directly from it.

Her particular concern is that "misinterpretation of Article 8 of the ECHR - the right to a family life" has prevented the government deporting people who shouldn't be here. She undoubtedly touches a public nerve when she lists examples of foreign undesirables avoiding the plane back home because of the Human Rights Act.

Among the "perverted" interpretations of the convention, she told her audience, was the case of "the illegal immigrant who cannot be deported because - and I am not making this up - he had pet a cat."

As a point of information, the Royal Courts of Justice said today that the home secretary was indeed "making this up". A spokesperson for the Judicial Office has told the BBC:

"This was a case in which the Home Office conceded that they had mistakenly failed to apply their own policy - applying at that time to that appellant - for dealing with unmarried partners of people settled in the UK. That was the basis for the decision to uphold the original tribunal decision - the cat had nothing to do with the decision."

(My colleague Dominic Casciani has written about this further.)

Hmm. I wonder how carefully the home secretary checked before inserting those words "I'm not making this up"? Did her enquiries extend beyond the Daily Mail, which first published the story: "Migrant facing deportation wins right to stay in Britain... because he's got a cat"?

On the World at One this lunchtime Mrs May said that everything in her speech "was checked before I said them" but conceded that if someone "has said something different then we will look at that".

I doubt she will lose much sleep over the judge's response to her anecdote because she is confident that there is a widespread public belief that the judiciary is a soft touch in human rights cases. With a flourish she told her party conference:

"I can announce today that we will…write it into our immigration rules that when foreign nationals are convicted of a criminal offence or breach our immigration laws: when they should be removed, they will be removed."

Will that work? In the end it is a matter for judges, but Mrs May took the trouble of reciting Article 8 in full to demonstrate how the judiciary has been getting it so hopelessly wrong.

"I expect not many people have actually read Article 8, so let me tell you what it says:

'Article 8.1. Everyone has the right to respect for his private and family life, his home and his correspondence.' You can imagine, in post-war Europe, what the draftsmen intended. But now our courts - and the problem lies mainly in British courts - interpret the right to a family life as an almost absolute right.

"Let me read to you the rest of what Article 8 says: 'Article 8.2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'

"The right to a family life is not an absolute right, and it must not be used to drive a coach and horses through our immigration system."

The key bit for judges trying to balance up an individual's right to a family life against the "rights and freedoms of others" comes in 8.2, and perhaps the most important word in that is "necessary".

It means that the decision is one of proportionality - is a breach of an individual's human rights necessary in the national interest? Changing the immigration rules won't directly alter that judgement in law, but Mrs May told the BBC today that she had "every expectation" that "judges will respond" to what she described as "Parliament's view".

"Our opponents will say it can't be done, that they will fight us every step of the way," Mrs May added, clearly aware that her plan on deportation is not quite as straightforward as her "they will be removed" promise.