Rule of law
COMPLEXITY OF THE LAW
18. That the law be clear, certain and predictable
are central requirements of the rule of law. It would be difficult,
however, to argue convincingly that these requirements are satisfied
by UK immigration law which stands out as a particularly Byzantine
field. The Immigration Bill is a case in point. It is lengthy
and complicated—running to 168 pages in total, it consists
of 65 clauses and 12 schedules—while its complexity is exacerbated
by the fact that much of the Bill will take effect by means of
amending or inserting new provisions into several existing, and
already highly complex, pieces of immigration legislation. This
issue of complexity is compounded by the frequency with which
the law changes in this area. The Bill will be enacted in the
wake of, and will make changes to, the Immigration Act 2014, which
was itself a very substantial and complicated piece of legislation.
19. The disparate and complex nature of the legislation
in this area is of real concern from a rule of law perspective.
Whilst we recognise that this issue goes far beyond the provisions
of this particular Bill, we wish to draw to the attention of the
House this general concern, and our view that further thought
must be given to this matter so as to make immigration law accessible
and fit for purpose.
OVERRIDE OF JUDICIAL DECISIONS BY
THE FIRST-TIER TRIBUNAL
20. Schedule 7 of the Bill creates two concurrent
legal bases upon which immigration bail (that is, bail granted
to immigration detainees) may be granted. First, it authorises
the Secretary of State to grant bail.[10]
Second, it authorises the First-tier Tribunal to grant bail if
an application is made to the Tribunal for a grant of bail.[11]
The power to grant bail includes a power (and an obligation) to
set bail conditions. In its ECHR Memorandum, the Government acknowledges
that such conditions may restrict a person's liberty by, for example,
requiring them to reside at a particular address or not to leave
a defined geographical area.[12]
21. Where bail has been granted and bail conditions
set by the Tribunal, schedule 7 provides for decisions of the
Tribunal concerning bail conditions to be, in effect, overridden
by the Secretary of State, who can:
· impose
a condition pertaining to residence in a case in which the Tribunal
chose to impose no such condition;
· substitute
a residence condition that is different from any such condition
imposed by the Tribunal;
· impose
an electronic-monitoring condition in a case in which the Tribunal
decided to grant bail free from any such condition.
22. The Government's Explanatory Notes to the
Bill cast some light on the policy background to this aspect of
the Bill—and, in particular, the proposal to allow the Secretary
of State to override a Tribunal decision not to impose an electronic
monitoring condition:
"The Conservative Party Manifesto commits
the government to satellite tracking for every foreign national
offender subject to an outstanding deportation order or deportation
proceedings … Over 80% of foreign national offenders living
in the community have been released on bail by the First-tier
Tribunal … and while the Tribunal has the power to apply
an electronic monitoring condition, the Secretary of State cannot
require it as a condition of bail. The Bill gives the Secretary
of State the ability to impose an electronic monitoring condition
when the Tribunal grants bail but does not impose such a condition."[13]
23. From this, it seems that the Government is
not satisfied by the Tribunal's propensity to impose electronic-monitoring
conditions, and therefore wishes to be in a position to impose
such conditions even in cases in which the Tribunal does not see
fit to do so.
24. A decision of the Secretary of State to override
the Tribunal in this way would be subject to judicial review.
However, the constitutional question arises whether it is compatible
with the rule of law for a member of the executive to be given
the authority to override the decision of an independent judicial
body. The Supreme Court had cause to consider this question recently
in the case Evans v Attorney-General,[14]
which concerned the exercise of the ministerial veto power in
the Freedom of Information Act 2000. Giving one of the majority
judgments in the Evans case, Lord Neuberger said that:
"A statutory provision which entitles a
member of the executive … to overrule a decision of the judiciary
merely because he does not agree with it would not merely be unique
in the laws of the United Kingdom. It would cut across two constitutional
principles which are also fundamental components of the rule of
law … subject to being overruled by a higher court or (given
Parliamentary supremacy) a statute, it is a basic principle that
a decision of a court is binding as between the parties, and cannot
be ignored or set aside by anyone, including (indeed it may fairly
be said, least of all) the executive."[15]
25. In that case, some reliance was judicially
placed upon the fact that the veto power in the Freedom of Information
Act facilitated override of a decision of the Upper Tribunal,
which is statutorily designated a "superior court of record".
Lord Neuberger took this to mean that it has "the same status
as the High Court".[16]
In contrast, the First-tier Tribunal is not a superior court of
record. It is, however, an independent judicial body, meaning
that the prospect of ministerial interference with its decisions
raises concern about the threat to the rule of law.
26. We recognise that the position in relation
to schedule 7 of the Bill is complicated by the existence of concurrent
bail-granting and condition-setting powers. This means that if,
for instance, the Secretary of State were to impose an electronic-monitoring
condition (the Tribunal first having granted bail free from any
such condition), the Secretary of State would be doing something
that it would, in the first place, have been for her to do had
the question of bail been dealt with by her instead of upon an
application to the Tribunal. Ultimately, however, this does not
detract from the fact that once the Tribunal has ruled on bail
conditions, schedule 7 permits the executive to unpick or override
certain aspects of a judicial decision.
27. It is also worth noting that, unlike the
matter at stake in the Evans case, electronic-monitoring
and residence conditions engage considerations of individual liberty—something
that arguably renders the prospect of executive intervention more
constitutionally dubious.
28. We are concerned that schedule 7, which would
allow a Minister to override or alter independent judicial decisions
about immigration bail conditions, is in tension with the principles
of the rule of law. The usual process, should a Minister have
concerns about a judicial decision, would be to appeal against
it. The House may wish to ask the Government to clarify how their
proposals comply with the rule of law. The House may also wish
to ask the Government why, if the intention is to ensure the use
of certain bail conditions for particular offenders (such as satellite
monitoring for foreign nationals), they do not simply propose
new criteria for the First-tier Tribunal to take into account
when setting bail conditions.
RETROSPECTIVE LEGISLATION
29. Schedule 7 also gives rise to another matter
relating to the rule of law: retrospective legislation. It replaces
certain existing legislative provisions relating to immigration
bail, including paragraphs 22 and 29 of schedule 2 to the Immigration
Act 1971, which are concerned with the release on bail of an individual
who "is detained" or is "being detained" under
certain other provisions of the 1971 Act.
30. It is accepted that the power to impose bail
conditions also extends to someone who could be detained even
if they are not actually detained immediately prior to the grant
of bail. However, the Court of Appeal recently held that the powers
conferred by paragraphs 22 and 29 to impose bail conditions should
extend only to individuals who are or could be lawfully subjected
to immigration detention pending deportation.[17]
The Court further held that where, as in the case it was considering,
there was no realistic prospect of the person's deportation taking
place, subjecting them to immigration detention pending deportation
would not be lawful. Once the legal basis for detention falls
away, so does the legal basis for imposing bail conditions, the
power to impose such conditions being dependent upon the possibility
of lawful detention. The effect of the Court of Appeal's judgment
is therefore to make the imposition of bail conditions unlawful
in circumstances in which the person concerned could not lawfully
be subject to immigration detention.
31. The Immigration Bill addresses this matter
by providing that bail conditions can be set in relation to individuals
who are either "detained" or "liable to detention"
under relevant immigration powers. A person is liable to detention
if he could be detained were it not for the fact that a legal
issue or practical difficulty presently precludes or impedes his
removal from the UK.[18]
Once the Bill comes into force, it will therefore be possible
to impose bail conditions upon people who cannot actually be detained
because of impediments to their deportation.
32. However, before those provisions of the Bill
come into force, immigration bail will continue to be granted
under (among other powers) the powers granted by paragraphs 22
and 29 of schedule 2 to the Immigration Act 1971. Clause 32(3)
of the Bill—which, unlike most of the Bill, enters into
force immediately upon enactment[19]—therefore
provides that the 1971 Act powers can be used "even if the
person can no longer be detained" provided that he is "liable
to detention". Clause 32(3), on its own, will only permit
those liable to detention to be subjected to immigration bail
once the Bill has been enacted. The Government, however, is concerned
about the position in respect of those liable to detention upon
whom immigration-bail conditions were imposed prior to the Bill's
enactment. Clause 32(5) therefore provides that: "The amendment
made by subsection (3) is to be treated as always having had effect."
This is intended to be a transitional arrangement: when the new
immigration-bail regime contained in the Immigration Bill comes
into force and repeals the 1971 Act immigration-bail powers, clauses
32(3)-(5) of the Immigration Bill will themselves automatically
be repealed.[20] Nevertheless,
for as long as clauses 32(3)-(5) are in force, they will have
retrospective effect.
33. The Government acknowledges this in its Explanatory
Notes to the Bill:
"This clause is retrospective in its effect
because it is intended to clarify the law following a recent Court
of Appeal judgment … on when immigration bail conditions
can be imposed. The Court of Appeal judgment disturbed previously
settled case law in this area. If the Court of Appeal's judgment
stands (it is under appeal) then it will have a significantly
limiting impact on judges' and the Home Office's ability to impose
bail conditions and manage individuals, including those who pose
a risk to the public where deportation is being pursued."[21]
34. The statement that these provisions "clarify"
the law is questionable. The Court of Appeal has determined what
the relevant provisions of the Immigration Act 1971 mean—and
what, in law, they have always meant. The Government now wishes
to revise what those provisions mean. The effect of clause 32(5)
will therefore be to change the law and to do so retrospectively.
The extent to which retrospective legislation is constitutionally
concerning varies, retrospective criminal legislation being particularly
egregious. Clause 32(5) of the Immigration Bill does not fall
into that category. However, the rule of law requires government
to act according to law, and from that perspective the retrospective
provision of a legal basis for executive action is constitutionally
suspect and calls for a clear justification. To the extent that
such a justification is provided by the Government, it appears
to turn upon considerations of administrative convenience and
to rely upon the fact that the Court of Appeal's judgment disturbed
what the Government considered to be a settled understanding of
the legal position. We recognise that the Government was acting
in accordance with its understanding of the law, but once that
action has been judged to be unlawful we would expect a greater
justification for changing the law with retrospective effect than
simple administrative convenience.
35. As we have previously stated, there needs
"to be a compelling reason in the public interest for a departure
from the general principle that retrospective legislation is undesirable."[22]
The House may wish to assure itself that sufficient justification
has been advanced for the use of retrospective legislation in
this instance.
36. There is one further provision in the Bill
that might, perhaps, be considered to have retrospective effect.
Clause 13 inserts new provisions into the Immigration Act 2014
creating a number of criminal offences relating to the leasing
of premises. New section 33A(1) provides that a landlord under
a residential tenancy agreement[23]
commits an offence if two conditions are satisfied. The conditions
are that (a) the premises are occupied by a person who, because
of their immigration status, is disqualified from occupying premises
under a residential tenancy agreement, and (b) the landlord knows
or has reasonable cause to believe that the person concerned is
so disqualified. The Bill inserts new provisions into section
35 of the 2014 Act, the effect of which is to cause section 33A
to apply to residential tenancy agreements made prior to the entry
into force of clause 13 of the Immigration Bill.
37. This does not mean that clause 13 will have
retrospective effect in the sense of imposing criminal liability
in relation to things that happened before it entered into force.
If a disqualified person occupied a landlord's premises until
the day before clause 13 entered into force, the landlord would
not become guilty of a criminal offence upon the subsequent entry
into force of clause 13. If, however, a disqualified person remained
in occupation after clause 13 entered into force, the landlord
would commit a criminal offence even though the occupation was
under a residential tenancy agreement that was made prior to the
coming into force of clause 13. In this sense, clause 13 might
be considered to have retrospective effect, in that it can cause
criminal liability to accrue on the basis of an arrangement that
was entered into prior to the entry into force of the provision;
albeit that liability would only arise if occupation pursuant
to that arrangement persisted following the coming into force
of clause 13.
38. Overall, however, we recognise that the effect
of clause 13 is to impose criminal liability only in respect of
landlords' conduct following the entry into force of the provision,
and do not consider this provision raises rule of law concerns.
10 Immigration Bill, schedule 7, paragraphs 1-2 Back
11
Immigration Bill, schedule 7, paragraph 3 Back
12
Home Office, Immigration Bill: ECHR Memorandum (17 September
2015) para 87: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/462206/Immigration_Bill_ECHR_Memo.pdf
[accessed 22 December 2015] Back
13
Explanatory Notes to the Immigration Bill, para 23 Back
14
R (Evans) v Attorney-General (2015) UKSC 21 Back
15
R (Evans) v Attorney-General (2015) UKSC 21, para 51 Back
16
R (Evans) v Attorney-General (2015) UKSC 21, para 2 Back
17
R (B) v Secretary of State for the Home Department (No 2) (2015) EWCA Civ 445.
In November 2015, the Supreme Court gave permission to appeal
in this case. Back
18
Immigration Act 2002, section 67 Back
19
Most provisions of the Bill enter into force on 'on such day as
the Secretary of State appoints by regulations': Immigration Bill,
clause 63(1). Back
20
Immigration Bill, clause 32(6) Back
21
Explanatory Notes to the Immigration Bill, para 168 Back
22
Constitution Committee, Banking Bill (3rd Report, Session 2008-09,
HL Paper 19), para 7 Back
23
As defined by the Immigration Act 2014, section 20 Back
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