Clause for thought

When the Lord Chief Justice, a former Lord Chancellor and a senior Lord of Appeal in Ordinary, join with the cross-party Constitutional Affairs Committee in condemning a clause in one of the Government’s bills, it is time to sit up and take notice. The point at issue is not merely disagreement as to the balance of judgment, it is a dispute on a fundamental question. In the words of Lord Woolf: “The implementation of the clause would be a blot on the reputation of the Government and undermine its attempts to be a champion of the rule of law overseas.”

The provision in question is Clause 14 (formerly Clause 11) of the Asylum and Immigration (Treatment of Claimants etc) Bill (the bill). If enacted, it would oust the jurisdiction of the courts to challenge decisions of a new statutory tribunal, to be known as the Asylum and Immigration Tribunal (the tribunal). The words of the clause are breathtaking in their extremity:

  • “No court shall have any supervisory or other jurisdiction (whether statutory or inherent) in relation to the Tribunal.”
  • “No court may entertain proceedings for questioning (whether by way of appeal or otherwise) any determination, decision or other action of the Tribunal…”.
  • The foregoing provisions “prevent a court, in particular, from entertaining proceedings to determine whether a purported determination, decision or action of the Tribunal was a nullity by reason of lack of jurisdiction, irregularity, error of law, breach of natural justice, or any other matter…”.

There are exceptions to permit review of a decision as to the destination to which a person is to be sent and to allow a court to consider whether a member of the tribunal has acted in bad faith.

The bill would authorise the Asylum and Immigration Tribunal to review its own decisions, but such a review would be confined to determining whether the previous decision depended on an erroneous construction or application of the Nationality Immigration and Asylum Act 2002 (the act). The president of the tribunal could refer a point of law to an appellate court, but other members of the tribunal could not do so.

It would be difficult to find so stark a departure from the rule of law in any modern enactment, so what has led the Government to propose it? Like previous administrations, it is concerned by the costs and delays in the present system of immigration adjudication. It points to the difficulty that the immigration service encounters in securing the removal of applicants who have been refused admission or asylum but have become settled in the country during the long period that it can take to dispose of successive unsuccessful appeals.

The Home Office points out that around 97 per cent of adjudicator decisions are eventually upheld, but there is a high rate of appeals to the tribunal. Historically, cases could take up to 58 weeks to be resolved. “We need to reform and reduce the opportunities to play the system,” the bill states.

Few would deny that cost, delay and abuse present problems that need to be addressed. But when the Government proposes a measure as radical as this, it provokes questions: is it necessary? Will it work? Does it go too far?

To decide whether it is necessary, we need to assess the effects of the latest change adopted with the same objective. The act introduced a system of statutory review by the High Court. The system established by the act is intended to be rapid. It appears to have succeeded in its object, although experience in its application has been too short to permit us to assess it conclusively.

The Constitutional Affairs Committee recommended that there should be no change in the system of appeals until the impact of the act has been assessed. It was right. If it should prove necessary to make some changes to that system, this might be accomplished without the need for legislation. It might be appropriate, for instance, to engage some senior recorders to secure the rapid disposal of applications for judicial review – a task previously reserved, in the main, to High Court judges.

The clause will work (in the Government’s terms) only if it actually reduces the number of hearings before the High Court and if it withstands legal challenge. On both of those counts, the prospects of success are doubtful. According to Lord Falconer, Clause 14 is not meant to exclude recourse to the courts by way of habeas corpus. Unlike applications for judicial review, those for habeas corpus do not require the permission of a High Court judge to proceed to court. So there is a risk that Clause 14 will encourage litigants to seek relief by a remedy that is not subject to pre-trial filtering. If that happens, it will be counterproductive.

There is also a risk that it may be ineffective. It has been well established, at least since Anisminic Ltd v Foreign Compensarion Commission, that statutory provisions which seek to oust the jurisdiction of the court will be strictly construed. Thus, legislation excluding judicial review of a ‘determination’ did not exclude review of a purported determination that amounted to a nullity. In Clause 14, the draftsman has taken care to exclude judicial review of even a purported determination.

Faced with such language, the courts may feel constrained to go further than in Anisminic. It is true that, according to 19th century constitutional lawyer Albert Dicey, Parliament can make and unmake any law, but even he does not appear to have contemplated that Parliament can unmake the rule of law itself. Henry Bracton, the 13th century writer and philosopher, gives us the antidote to Dicey: ipse autem Rex debet esse sub Deo et sub lege, quia lex facit regem – ‘even the King himself must be subject to God and to the law, for it is the law that makes him King.’ Likewise, Parliament must be subject to the law, for it is from law that Parliament derives its authority.

Bracton’s principle has not been buried in history. It has been affirmed by more modern experts in the constitution. According to Professor Sir William Wade and Dr Christopher Forsyth, “Judicial review is a constitutional fundamental which even a sovereign parliament cannot abolish”. Lord Steyn has echoed these words. In a speech on 3 March, he referred to the principle of parliamentary supremacy, saying: “It is strongly arguable that the judges created the principle. If that is so, the House of Lords may have to consider whether judicial review is a fundamental which even a sovereign parliament cannot abolish.”

The reaction that the clause has provoked is itself evidence of the extreme lengths to which it would go, if enacted in its present form.

On its face it would immunise from judicial review even purported determinations vitiated by lack of jurisdiction, irregularity, error of law or breach of natural justice. It is this extremity, together with the presentation of the legislation before any proper assessment can be made of the effects of the act, that has provoked criticism from lawyers of all shades of political and social opinion.

Because of that reaction, the clause may yet be withdrawn or modified drastically. Or it may be voted down in the House of Lords. But if it is forced through, it will inevitably lead to a confrontation between Parliament and the courts. This is not in the interests of either.

The Government’s action in publishing the clause in its present form sheds light on another of its legal reforms. It is difficult to believe that the clause would have survived thus far had there been in office as Lord Chancellor someone appointed, as under previous administrations, from among those individuals beyond the maelstrom of political life, intimately familiar with the administration of justice and the courts, and in some cases with the benefit of judicial experience at the highest level.

Such a person would have been in a position to give the Government advance warning of the reaction that the clause was bound to provoke. They could have cautioned that the clause could prove counterproductive and might prove ineffective if challenged in court.

Secretaries of state, however able, are not best placed to discharge that task.

Richard Plender QC is a barrister at 20 Essex Street