It’s not often that I find myself writing a blog post which attacks someone on my own side of the political divide, but, in this case, I think it needs to be said. And what needs to be said is that the Home Secretary’s comments about judges supposedly “ignoring” the will of parliament are completely wrong.

The actual article quoted by the BBC (and others) is in the Mail on Sunday. It’s a first-person, op-ed column, so neither the Mail nor any other newspaper can be accused of misreporting her. She wrote it herself.

But what she wrote shows a shocking failure to comprehend how the law actually works in this country. Take, for example, these paragraphs:

After a vigorous debate, the Commons adopted the changes unanimously. There was no division because there was no one in the Commons who opposed them.

I made it clear that I would introduce primary legislation should the Commons’ acceptance of my amendments not be sufficient to persuade judges to change the way they interpreted Article Eight. But I hoped that the outcome of the debate would be enough.

Unfortunately, some judges evidently do not regard a debate in Parliament on new immigration rules, followed by the unanimous adoption of those rules, as evidence that Parliament actually wants to see those new rules implemented.

This is so widely missing the point that it’s hard to believe Mrs May has any clue about what she’s writing. Of course the judges will ignore the outcome of a non-binding debate in parliament. They have no option but to do so.

When making a decision, all that matters to a judge is the law. And that is precisely as it should be. Imagine the outcry if that were not the case – if politicians could routinely override the law simply by issuing judges with new “guidelines”. But yet this is what Mrs May seemingly expects to happen.

The fact is that the law on deportation is clear. It is not only clear in statute, but also in case law. And the law cannot be changed simply by a parliamentary debate which produces no new legislation, however one-sided the outcome of that debate may be.

The Home Secretary is entirely correct to say that only parliament can make primary legislation. But she is equally wrong to say that judges have no role in creating law at all. England is a common law country, and case law – created by judges – is just as much a part of our legal canon as statute law. That the Home Secretary is seemingly unaware of this fact beggars belief.

The BBC report notes that

At the time, Labour questioned whether the guidance would be sufficient to override the precedent set by earlier cases and said it would support primary legislation.

As it happens, Labour is right. Issuing guidelines cannot change the law. This needs primary legislation. And, it seems, we are now going to get it. Which I support. I do agree that the law is currently biased to much towards the rights of non-citizen criminals and not enough to the right of this country to be rid of them.

But it would have been so much better had the government accepted this in the first place, instead of the Home Secretary grandiosely imagining that she can simply tell the judges to disregard the law and expect them to obey her. Because the law doesn’t work like that, and a Home Secretary who doesn’t understand the law is a liability.