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  Safeguarding the Role of the Courts

Given in the Standing Committee on the Asylum and Immigration Bill on 20 January 2004
Mr. Bacon: I listened with awe to my hon. and learned Friend's speech, as many people will have done. I think that it adds substance to the claim that something novel and important is being done. The phrase ''constitutional outrage'' has been used. He mentioned the Soviet Union and the People's Republic of China, and my hon. Friend the Member for Woking mentioned Mugabe, to jeers from one or two members of the Committee. However, this is a matter of huge seriousness. Clause 10 is the most important part of the Bill. In particular, I want to address the issues raised in amendments Nos. 43, 44, 45 and 66.

Such measures appear not only under this Government. I fear that it is what Governments do, not only a Government of such a complexion. In fact, one would least expect it from Governments of this complexion. I think that it is evidence that one should always be fairly distrustful of any Government. The checks and balances that provide protections to citizens are at the core of our system. They are constitutional fundamentals, which we tamper with at our peril.

In the national cathedral in Washington DC, around the pulpit and supporting it, is a depiction in stone of the barons at Runnymede handing the magna carta to King John. I remember being very surprised and interested to see that, in the very pulpit of one of the most important religious buildings in the United States, lies a tribute not to the glories of those who have power but to the limits placed upon them. If one walks into this building through the public entrance and comes through St. Stephen's Hall, one sees on the right a painting of Sir Thomas More and Cardinal Wolsey, with other Members of the House of Commons. The caption reads:

''Sir Thomas More, as Speaker of the Commons, in spite of Cardinal Wolsey's imperious demand, refuses to grant King Henry VIII a subsidy without due debate.''

The notion that we do not have unchecked power - that we do not have arbitrary power, and that no power exists that cannot be reviewed - is absolutely at the heart of our system. There are people who have said that that is one of the great contributions of the Anglo-Saxon system to world civilisation. I think that it was Kahlil Gibran, the Arab philosopher, who said that the contribution of the English is analysis and self-righteousness. As there are Scottish members of the Committee, I shall not dwell on that point. However, it is true that the contribution of the Anglo-Saxon legal and political system, above all else, has been to stress the importance of limited government, that the Government should be constrained and restrained by those whom they are governing. That is at the heart of our system, and what our courts have always tried to reflect.

The Minister referred to the point about finality in the Bill. It is true that many statutes provide that some decisions should be final, which would at least appear to bar an appeal. However, the courts have always refused to allow such provisions to hamper the operation of judicial review. He quoted two famous textbooks, by Dicey and Wade, in support of his case. I referred to Wade earlier to show that I thought the Minister was perhaps incorrect. In fact, Wade firmly refutes the suggestion that the provisions of judicial review shall be seriously hampered. I have here my old tatty copy of Wade and it says on the back:

''Judges and counsel frequently cite this work in courts of law.''

I hope that if it is suitable for a court of law, it is also suitable for this high court of Parliament.

On page 720, Wade says that

''there is a firm judicial policy against allowing the rule of law to be undermined by weakening the powers of the court. Statutory restrictions on judicial remedies are given the narrowest possible construction, sometimes even against the plain meaning of words.''

It is true that there have been spats between Parliament and the courts over many centuries over the question of the extent to which Parliament can introduce ouster clauses. Indeed, in some cases, when the courts started to operate administrative law in its modern form in the 17th century, they went too far. Parliament retaliated by introducing no certiorari clauses. I shall not try the Committee's patience by naming all the cases, but the germane point was made by my hon. Friend the Member for Woking - I point to him, but he seems to have transmogrified into my hon. and learned Friend the Member for Harborough. He quoted Lord Denning, who wrote about no certiorari clauses. Parliament had, to some extent, been right to retaliate in order to order to stop the abuses.

I quote Lord Denning in full:

''In stopping this abuse, the statutes proved very beneficial, but the court never allowed those statutes to be used as a cover for wrongdoing by tribunals. If tribunals were to be at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end.''

Wade continues:

''This epitomises the court's determination to preserve regularity in the legal system, and to construe every Act of Parliament as intended to uphold it.''

That is to say, to uphold the legal system. Earlier, the Minister mentioned my reference to the case of Anisminic. Anisminic Ltd. v. the Foreign Compensation Commission is still the leading case. Wade refers to it as the high water mark of judicial review. The crucial words in that case were the provision of the Foreign Compensation Act 1950, that the determination of the commission

''shall not be called in question in any court of law.''

Yet determinations of the commission were called into question by courts of law for five years. In the end the House of Lords granted a declaration that it was ultra vires and a nullity. Wade comments that that shows clearly the great determination of the courts to uphold their longstanding policy of resisting attempts by Parliament to disarm them by enacting provisions that, if interpreted literally, would confer uncontrollable power on subordinate tribunals. The philosopher Karl Popper said that the one thing that we have to fear is arbitrary, unchecked power. The Bill goes in completely the wrong direction in that respect.

My fear, as I looked through my old, tatty copy of Wade, was that perhaps I had completely missed the point. When the Minister said that Wade supported him, I thought that either I had completely misread the Bill or Wade had been completely rewritten. I was loath to take my coloured highlighters and draw all over the latest edition - and I am sure that the House of Commons Librarian would have been loath to allow me to - but I took the trouble to check it, to ensure that the position had not been completely reversed, as it seemed odd to me that the Minister said that Wade supported him. Having done a careful analysis of my edition and the latest edition, I can report that the Minister is right in one respect. I quote from page 709:

''Parliament has not, however, abandoned its attempts to devise a really judge-proof formula.''

That is the extent to which he is right about Wade, and no further.

My hon. Friend the Member for Woking mentioned Lord Denning. It is interesting to look at the front of the eighth edition of Wade, where it says

''This edition is dedicated to the memory of Lord Denning who died in 1999 aged 100. A great judge, an architect of administrative law and a friend of this book.''

That makes the point fairly conclusively. I did not want to rely on one textbook, even if the Minister had claimed that it supported him, so I studied with great interest the briefing from Matrix Chambers. When I came into Parliament, I did not think that it was going to be my place to speak up for right-on lawyers, but having read through this first-class briefing, I think that perhaps I should have become one; I might have prospered. My hon. Friend the Member for Woking referred to the fact that the name of the Prime Minister's wife is absent from the list of distinguished barristers and silks. That is strange, but there it is. It is a good briefing and it makes a number of important points, one of which is that this does not apply only to asylum; it is much wider-ranging.

The briefing says that the clause:

''provides a precedent for exempting the executive and administrative tribunals from seeking to understand, apply or be governed by the law.''

It goes on to say that, in the view of the distinguished barristers, it is a matter of great constitutional significance, particularly at a time of so much constitutional turmoil. The traditional institutions that have served to provide some measure of check are being undermined without any clear understanding of what is going to take their place.

Page 2 of the briefing describes the Bill as follows:

''In effect what has been billed as a measure to speed up immigration decision making is a barely disguised attack on the function and jurisdiction of the judiciary at a time when that function and jurisdiction is needed as never before''.

and over the page:

''Whatever the substantive law is there needs to be access to a court to ensure that it is being complied with.''

There needs to be access to a court to ensure that it is being complied with. Either we believe that the courts should uphold Acts of Parliament and the rule of law, or we do not. But if they are to uphold the rule of law it is essential that whatever the law is, people should have access to the courts in order to uphold it. The Matrix brief continues:

''It is this principle'' -

the principle of access to the court to ensure that the law is being complied with -

''that is threatened by the ouster clause.''

My hon. Friend referred to the list of extraordinary events - the lack of jurisdiction, irregularity, error of law, breach of natural justice and so on - that the Bill would oust. Notwithstanding those matters, there would be no power of the court to look at the case to review the decision.

There is a very good brief from the Refugee Council, Amnesty International and the Refugee Legal Centre and I strongly support its conclusion:

''The attempt to prevent judicial oversight is of major constitutional significance and seeks to put the decision-making process beyond the law.'

I cannot easily add to that, save to say that if members of the Committee were to think that only what I would describe as right-on lawyers come to that conclusion, I refer them to the opinion of the Law Society, a sober group of people, who came to the conclusion that the Bill would mean that

''if a tribunal, in determining an application, made an error of law or failed to give proper consideration to relevant facts, the only redress would be to ask the tribunal to review its decision. This review would only be through written submissions. No matter how erroneous the decision, the applicant would have no means of challenging the tribunal's ruling.''

I have sat in on tribunals, although not immigration tribunals, covering issues such as the disability living allowance, and on behalf of some of my constituents I am extremely glad that the ability to review tribunals' decisions exists. Despite what some hon. Members think, I have no doubt that while many tribunal presidents and chairman are not judges, their decisions are capable of being seriously wrong. They are capable of ignoring basic facts and the rules of natural justice and it is right that those bodies should be reviewable. The Law Society concludes:

''Clause 10 goes far beyond what is reasonable. The ability of the judiciary to oversee the actions of administrative tribunals is fundamental to the rule of law. This proposal to oust the jurisdiction of the High Court is unprecedented. Bearing in mind that decisions on claims for asylum can literally be life or death matters. . .''

I refer the Committee to the earlier speech of my hon. and learned Friend the Member for Harborough. It is especially reprehensible that the Government should seek to eliminate proper judicial scrutiny of decisions in these cases.

I referred to the opinion of Mr. Iain Miller, the litigation partner at Wright Son and Pepper, a firm of lawyers in Gray's Inn. I say, for the benefit of the Committee and to avoid any appearance of not declaring my interest, that Mr. Miller used to be a flatmate of mine, although in the present climate -

Mr. Garnier: He is not the Lord Chancellor, then.

Mr. Bacon: Not yet. Bearing in mind the Minister's boss, quoting a flatmate can only add to the weight of one's views.

Mr. Miller's opinion is this:

''I am sure that the Administrative Court judges are keen to get rid of unmeritorious immigration cases. Surely the sensible course is to have a special fast track admin court procedure on say immigration points of law where permission can be dealt with in a couple of days.''

It has been suggested that the answer is to reform the procedures, not completely to undermine the rule of law. In the absence of such reform, Mr. Miller adds that his instinct is that the current draft, which he describes as a declaration of war with the judiciary, will not stand and:

''if there is a case where there is a clear injustice they will get around it as they did in Anisminic.''

My own view is that that is correct. In the end this action by the Government will not succeed, never mind what the other place may make of the provisions in the Bill. I fear that it will force judges to become ever more imaginative. It will undermine the rule of law. It will undermine the logic and the rationality of the law. Ultimately, it will fail. The Minister should note that the book to which he referred is called ''Administrative Law''. Surely the answer is to sort out the administration, not to drive a coach and horses through the law.


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