Select Committee on Constitutional Affairs Second Report

6 Jurisdiction of the Courts

"Judicial review is the exercise of the court's inherent power at common law to determine whether action is lawful or not; in a word to uphold the rule of law".[40]

"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."[41]

Review of Tribunal decisions (clause 11(6))

47. Under the proposed clause 11(6)[42], the tribunal will have jurisdiction to review its own decisions, if requested to do so by a party to the appeal. Initially the review was to be conducted entirely in writing without oral hearing. However, this clause was subsequently amended, to provide that "If in the course of a review that Tribunal forms the opinion that the exceptional nature of the case makes it impossible properly to determine the review without an oral hearing, the Tribunal may hold an oral hearing". This would imply that the majority of cases would still be conducted as paper exercises. There is no definition of what would constitute "the exceptional nature of the case". The Minister said that

"That has got to be a determination that the senior judges in the IAT themselves make… What we have said is that if something comes up that is exceptional, if, for example, there is a change of circumstances or something like that, then the tribunal at review stage should be able to hear that matter orally if it sees fit".[43]

We regard this as unacceptably vague. It gives no guidance to practitioners or others about the circumstances in which it is reasonable to apply for an oral hearing. This in itself will cause delay as the case law is developed. We recommend that the Bill should make clear the general circumstances in which the tribunal will hear an oral review.

48. On a review of its decision, the Tribunal may uphold its original decision or, in limited circumstances, it may change its decision.. The Tribunal may only change its decision if there is an error of law.[44] The Tribunal will be able to review a decision once only.

Power to refer points of law to the higher appellate courts (clause 11(7))

49. The President of the Tribunal will have power to refer a point of law to an appellate court if:

This power of referral may only be exercised while the Tribunal proceedings are still pending and once a matter has been referred the Tribunal must await the appellate court's opinion before reaching its final decision. The opinion of the appellate court may not be appealed to the House of Lords.

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:

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.

40   R v HM the Queen in Council, ex parte Vijayatunga [1988] QB 322, per Simon Brown J, now Lord Brown of Eaton under Heywood Back

41   R v Medical Appeal Tribunal, ex parte Gilmore [1957] 1 QB 574, 586, per Denning LJ Back

42   Originally Clause 10 of the Bill Back

43   Q 311 Back

44   Explanatory Notes to the Bill, para 39, as amended Back

45   Ev 250 Back

46   [2001] 1 All ER 593 Back

47   [2000] 2 All ER 577. This case featured the persecution of a Slovakian citizen of Roma origin by local skinheads. The court concluded that where a state was not willing, or able to fulfil its obligations to protect its citizens, then this could amount to persecution, even though it was not the state itself that was persecuting an individual. The court held that this obligation only arose where a person's own state was unable or unwilling to discharge its own duty to protect its own nationals. A practical standard had to be applied, and that standard did not require a State to eliminate 'all risks' to its citizens. The issue was one of the sufficiency of State protection. France and Germany did not recognise such non-state persecution and would return refugees to their country of origin if the alleged persecution was not conducted by the State Back

48   Ev 250 Back

49   Q 288 Back

50   Q 295 Back

51   An "ouster" clause is one which seeks to exclude the jurisdiction of the courts, especially through judicial review Back

52   Ev 260 Back

53   'And don't bother coming back', The Guardian,16 December 2003 Back

54   Including Rabinder Singh QC, Rhodri Thompson QC, Ben Emerson QC, Tim Owen QC, Professor Andrew Choo and Professor Aileen McColgan Back

55   Briefing note on clause [11] of the Asylum and Immigration (Treatment of Claimants etc) Bill by Matrix Chambers, Back

56   ibid Back

57   Ev 74 Back

58   Ev 117, para 3 Back

59   Anisminic Ltd v Foreign Compensation Commission and another [1969] 1 All ER 208 Back

60   For example where it had acted in bad faith, had reached a decision that it had no power to act, so that it failed to deal with the question remitted to it, failed to take account of something which it was required to take into account, or based its decision on some matter which, under the provisions setting it up, it had no right to take into account, although this is not an exhaustive list Back

61   [1997] 1 All ER 228 Back

62   Ev 249 Back

63   Q 289 Back

64   Which incorporates a new s 108A(2)(e). The decision to remove is an executive act Back

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