Exclusion of judicial review
and further appeal to higher courts (clause 11(5), (7))
50. There will be no further appeal from the Tribunal,
and no statutory or judicial review of the Tribunal's decisions
by the higher courts with two exceptions:
The following are not excluded from judicial
review:
- any challenge to the lawfulness
of the Secretary of State's decision to certify the case under
various provisions (e.g. to certify that an asylum claim or human
rights claim is clearly unfounded)
- Any challenge that a member of the Tribunal has
acted in bad faith
51. The Bill makes four important changes to the
law:
- The Asylum and Immigration
Tribunal will decide its own appeals;
- The President of the Asylum and Immigration Tribunal
has the sole right to decide whether to make a reference to a
higher court;
- The jurisdiction of the House of Lords is expressly
excluded;
- Judicial Review and Statutory Review are excluded
in all but a few cases.
52. There is a clear objection in principle to tribunals
exercising a supervisory jurisdiction over themselves. We doubt
whether this arrangement is either fair or able to be viewed as
fair by those affected by the new Tribunal's decisions. In looking
at these arrangements we bear in mind that they affect not just
asylum cases but also visitor appeals involving family members
of UK citizens.
53. Mr Justice Collins thought that the appeals system
will leave too much power in the hands of the President of the
new tribunal, as "however fair minded the President may be,
there is always a temptation in the belief that one is right not
to let the Court of Appeal interfere."[45]
54. We see no reason why the President of the Asylum
and Immigration Tribunal should have the sole right to decide
whether an appeal lies to a higher court or why the Court of Appeal
should not be trusted with the discretion to take over particular
cases if it saw fit. The procedural basis for deciding what cases
the Court of Appeal should take need not be lengthy and could
be carried out efficiently as a paper exercise.
55. The decision to exclude the jurisdiction of the
Appellate Committee of the House of Lords involves more than a
mere shortening of the avenues of appeal. The function of the
House of Lords is different from the Court of Appeal, which is
more of an error correcting court. The Appellate Committee of
the House of Lords deals with wide legal principles. Examples
of this in the asylum context are the cases of Adan[46]
and Horvath[47] whereby
the House of Lords determined that: there was only one true legal
definition of a refugee within the meaning of the Convention;
and that the United Kingdom was obliged to provide protection
to persons suffering from persecution by non-state agents, contrary
to the policy adopted by France and Germany. Although the Court
of Appeal could continue to settle important points of law we
suspect that in practice it will not be an adequate substitute
for the House of Lords when it comes to deciding the basic principles
and application of Treaty obligations. In addition, the House
of Lords is able to correct precedents which should no longer
bind inferior courts; the Court of Appeal is not able to depart
from its own precedents in the same way.
56. Mr Justice Collins said:
"I see no conceivable justification for [expressly
removing immigration cases from the jurisdiction of the Appellate
Committee of the House of Lords]. Since only cases raising points
of real importance can be certified by the President so as to
go to the Court of Appeal, it is difficult to understand the reason
why they cannot go further. There are a number of authoritative
decisions of the House of Lords and, as asylum is international,
it is surely essential that our highest court should be giving
the really important decisions."[48]
57. The Minister said in evidence to us that "We
are also saying, and it came up in the Bill Committee, that there
should be access to the higher courts in terms of the President
being able to refer up to the Court of Appeal or to the House
of Lords".[49] In
reply to a specific question from the Chairman, he said that this
matter was under discussion and that he was "minded to allow
appeals" to the House of Lords.[50]
58. The argument for removing the jurisdiction of
the House of Lords cannot rest securely on the principle of removing
scope for unmeritorious appeals, since few cases proceed to the
highest court. The House of Lords should retain its usual overall
jurisdiction in immigration cases.
59. The provision in Clause 11 of the Bill to exclude
the possibility of further appeal from the Tribunal and statutory
or judicial review of the Tribunal's decisions by the higher courts
(the "ouster" clause)[51]
is one of the most controversial provisions of the Bill. This
provoked some of the most strongly worded evidence which we received
in the course of the inquiry.
60. Review by the courts protects and applies the
law. Although there have been attempts in the past to limit the
jurisdiction of the courts the clause has been interpreted as
being especially severe. In a legal opinion by Michael Fordham,
received by the Committee as an annexe to the submissions of the
Refugee Legal Centre, it is suggested that for Parliament to purport
to exclude judicial review strikes at 'a constitutional right
(access to law), but furthermore at a constitutional protection
(judicial review) supported by a constitutional imperative', namely
the rule of law.[52]
61. The effect of Clause 11 on the jurisdiction of
the courts has been criticised by several leading counsel, including
Hugh Tomlinson QC and Booan Temple who said:
"In practice, this [clause] will prevent the
courts from reviewing any deportation and removal decision and
any decision of the new tribunal. There can be no challenge for
"lack of jurisdiction", "error of law" or
"breach of natural justice". This means that if, for
example, the tribunal fails to hear argument from both sides or
misreads a statute, there is no comeback. If the tribunal does
something it has no power to do, it is just too bad. The tribunal
will be able to do whatever it wants. It will be the ultimate
unaccountable public body. In the past, governments have often
been tempted to try to avoid judicial scrutiny of their decisions.
In almost every other country in the world, this would be forbidden
by the constitution. In Britain, the unwritten constitution requires
restraint on the part of parliament and the government. For nearly
40 years, governments of both parties have held back. They have
accepted that the rule of law requires that the courts must have
the final say as to whether the law has been broken. This bill
tries to turn the clock back".[53]
62. Nicholas Blake QC, who appeared on behalf of
the Bar Council, in a note on the clause published by Matrix Chambers
and supported by many figures from that Chambers[54]
wrote:
"Our concern is that the proposed clause 10
to the Bill [now clause 11] contains the most draconian ouster
clause ever seen in Parliamentary legislative practice. It has
been introduced without allowing any time for the bedding down
of the new appellate regime under the 2002 Act that restricted
judicial review of refusals of leave to appeal by the Immigration
Appeal Tribunal from decisions of adjudicators. It has been introduced
without any public consultation or debate. The short "consultation"
announced by the Home Office and Department of Constitutional
Affairs in October, was unspecific as to what was intended. It
is a clause that will operate far beyond asylum decisions, and
provides a precedent for exempting the executive and administrative
tribunals from seeking to understand, apply or be governed by
the law. This is a matter of great constitutional consequence.
It is happening at a time of constitutional turmoil where the
common law principles of division of responsibility between the
executive and courts are being torn up, and no new written constitution
is replacing traditional values and beliefs. This is a time when
traditional institutions that have served to provide some measure
of balance in the law making activities of the executive and Parliament—the
role of the office of Lord Chancellor and the significant revising
work performed by the House of Lords—have either been removed
or are under threat by the pronouncements of the present government,
without sufficient guarantees that their replacements will respect
basic principles of judicial independence and democratic accountability.
Historical experience suggests that it is easier to erode established
safeguards than to provide new effective ones".[55]
63. He went on to state that:
"Access to independent courts is an integral
part of democracy. Inferior tribunals are not courts and cannot
be transmuted into them by a legislative magic wand. They have
an expert and valuable role to perform but like the executive
itself, their decisions must be subject to the scrutiny of the
higher courts at the instigation of the losing party. The full
system of binding precedent means that no case can be arbitrarily
cut off by statute from review by the next level, condemning inferior
courts to apply precedents that may need re-examination. Constitutional
government should recognise this principle in the laws it promotes.
This form of ouster clause undermines the principle and threatens
the entire basis of our constitutional arrangement. This is why
the debate on ouster clauses is of significance and far broader
than asylum".[56]
64. Mr Justice Ouseley indicated that:
"What is not, I believe, genuinely controversial
is that so extensive an ouster clause is without precedent: it
seeks to oust the High Court's supervisory role not just over
the decisions of a lower Tribunal, even those made unfairly or
without jurisdiction; it also seeks to oust the High Court's control
over the legality of certain executive acts and decisions, and
to do so in an area where life and liberty may be at stake. Such
an ouster clause is unprecedented because, and again this is not
controversial, the United Kingdom's conventional constitutional
framework, albeit unwritten, is predicated on the allocation of
different, but equally necessary functions to Parliament, the
Courts and the executive. To the Courts is allocated the necessary
task of reviewing the lawfulness of the decisions of lower Tribunals
and the lawfulness of the executive's acts and decisions. An unwritten
constitution only works on the basis of an acceptance by each
component of the differing and important roles of the others.
The ouster clause is inconsistent with those constitutional conventions.
As a matter of constitutional principle, higher judicial oversight
of lower Tribunals and even more so of executive decisions should
be retained."[57]
65. The Council for Tribunals concurred with this
view, writing that it was:
"…particularly concerned about the provisions
in clause [11] of the Bill excluding any further scope for further
challenges to the decision of the Tribunal either by way of appeal
to a higher court, (as is usual in the case of tribunals) or by
judicial review. It is of the highest constitutional importance
that the lawfulness of decisions of public authorities should
be capable of being tested in the courts… In respect of tribunals
under its supervision, the Council has consistently advocated
an avenue of appeal to the courts on points of law. In the Council's
view, it is entirely wrong that decisions of tribunals should
be immune from further legal challenge".[58]
66. The courts have always viewed with suspicion
attempts to remove their inherent rights to jurisdiction over
particular areas. There is some considerable doubt that the clause
will be quite as effective as the Government supposes. In his
written submission, Mr Justice Collins indicated that there would
be difficulties in prohibiting the supervisory jurisdiction of
judicial review because of the House of Lords decision in Anisminic.[59]
In that case the respondent had argued that the courts were precluded
from exercising supervisory jurisdiction because s 4(4) of
the Foreign Compensation Act 1950 provided that the determination
by the Foreign Compensation Commission of any application "shall
not be called into question in any court of law". The court
took a narrow interpretation of the word 'jurisdiction', determining
that it was only in circumstances where a tribunal made a decision
on a question remitted to it without committing any of a variety
of errors listed[60]
that it would have been entitled to decide a question wrongly
and the matter would then be non-justiciable. This approach was
upheld in Fayed.[61]
67. Mr Justice Collins added that when removal of
a failed appellant is attempted:
"…an application for judicial review will
follow, on the basis that the appellant's claim has never been
properly considered and the decision to remove is erroneous in
law. Thus there will be even greater expense and greater delay.
It is inevitable that in asylum cases, the court will be concerned
to ensure that full and proper consideration has been given."[62]
68. We were surprised at the Minister's comments
in evidence to us that the ouster will not apply to executive
decisions:
"Of course, we are not ousting judicial review
from decisions made by the Home Secretary, from executive decisions.
It would be quite wrong for us to say that you could not challenge
a circumstance or a decision made by the Home Secretary".[63]
This does not square with the provision in clause
11(7).[64] We assume
that the Minister will bring forward an amendment on the basis
of his statement to the Committee.
69. We are deeply concerned that the provisions of
the new ouster clause are intended to prevent the courts from
reviewing any deportation or removal decision; this may include
cases involving serious error, for example where the wrong person
has been identified for removal.
70. An ouster clause as extensive as the one suggested
in the Bill is without precedent. As a matter of constitutional
principle some form of higher judicial oversight of lower Tribunals
and executive decisions should be retained. This is particularly
true when life and liberty may be at stake.
71. The system of statutory review under the 2002
Act, which was invented to abridge the previous system of judicial
review, has only been operating for a matter of months. It appears
to be working. No change should be made to this system until there
has been more experience of its impact.
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